Steve Nuzum reports that in South Carolina, librarians are fighting back against book bans.
The South Carolina Association of School Librarians, along with three students, working with attorneys from the South Carolina American Civil Liberties Union, filed a federal district court complaint earlier this month against Superintendent of Education Ellen Weaver, along with Greenville County schools.
The lawsuit argues that Weaver’s Regulation 43-170, which requires the State Board of Education to make sweeping decisions about which books are prohibited in the state’s public schools, violates the US Constitution.
First Amendment violation
The complaint argues that the regulation violates the First Amendment “because it is a content-based regulation that is substantially overbroad under the Supreme Court’s Ginsberg standard for obscenity”. The same standard was used in cases in Iowa and Florida which led to similar laws being struck down or blocked by the Courts.
In the Florida case, the Judge’s criticism of the law could clearly apply to South Carolina’s regulation; he wrote that the Florida law “does not evaluate the work to determine if it has any holistic value” and “does not specify what level of detail ‘describes sexual conduct.’”
The complaint, itself, repeats a similar refrain from critics of the regulation, pointing out the regulation does not include anything like “the three-part constitutional test for obscenity provided in Miller v. California, 413 U.S. 15 (1973)”. Without such a test, the Board can (and has) banned a wide variety of books, including some with widely recognized artistic and literary merit. According to Department of Education attorneys, Board members are explicitly not allowed to consider any worth a text might have once it is determined to (subjectively) contain “sexual content”.
“By omitting the Miller test,” the complaint argues, “the Regulation ignores constitutional limits on when the government may lawfully suppress sexual content.”
As the complaint points out, providing “obscene” material to minors is already illegal: “Thus, the Regulation only applies to materials that are not legally obscene.”
“Unconstitutionally vague”
The complaint also argues that the regulation in South Carolina is “unconstitutionally vague under the Fourteenth” amendment because school employees can’t predict how it will be applied.