I love reading books. As someone in library school, it’s not the most surprising thing one could hear. Although I may not have as much time to read as I did when I was younger, my love for books still runs deep. August 9th is a day of celebration for books and the joy that reading brings. In line with that celebration, I want to dive into the topic of banned books and censorship, which regularly threaten the freedom to read. Specifically, I will be taking a look at the law of obscenity and its relationship to book bans.

Obscenity in the Law

Freedom of speech is a cornerstone of American life. The First Amendment allows us, as a society, to hold diverse opinions and engage in meaningful discourse with one another. It protects the right to disagree, to openly criticize, to freely express oneself, and to explore ideas that may go against convention. However, the First Amendment places limits on what counts as protected speech. One area that is not protected by the amendment is cases in which speech is deemed obscene.

According to Cornell Law School, obscenity concerns itself with anything that is “lewd, filthy, or disgusting” and considered indecent. Although every state has the power to assert what is and is not considered obscene, the federal government sets forth a basic test to determine whether something can be judged as so. Deriving from 3 key cases (Miller v. California 413 U.S. 15, 24-25 (1973); Smith v. United States, 431 U.S. 291, 300-02, 309 (1977); and Pope v. Illinois, 481 U.S. 497, 500-01 (1987)), the Miller Test makes 3 determinations:

1. Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion) 
2. Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse)
3. Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value

Criminal prosecution can take place against those who sell or distribute obscenity.  Obscenity laws help protect the public, especially in the case of minors. Of course, with no set standard for conviction or penalty, contention prevails regarding what constitutes obscenity and how and when obscene speech should be punished. In California, the relevant codes can be found in chapter 7.5 of the state’s Penal Code. Section 312.1 states that any evidence that can be used to establish contemporary definitions of obscenity can be used to prove that something is obscene. Understanding that the definition of obscenity is dependent on contemporary standards, makes clear the ambiguous nature of the categorization. Unfortunately, this ambiguity has often been used to push forward book bans as individuals apply their own meaning of the term “obscenity.”

Obscenity and Book Censorship

Libraries and similar organizations give the public free access to information and resources to promote literacy in all its forms. The most common resource that libraries provide access to is books. Often under the guise of protection, movements to restrict access to information and its discussion are a constant threat to people’s right to read. Protecting against obscenity is the goal of state and federal obscenity laws, but they are often misused to block access to books.

Books can be challenged or banned for several reasons. From political disagreements to assertions that a book should be banned because it depicts talking animals, the list of reasons seems endless. Predictably, the most common argument would be that a piece of writing is obscene. When it comes to creative works and artistic expression, laws of obscenity are repeatedly applied to put restrictions on their public display and people’s access to them.

The American Library Association’s list of the Most Challenged Books of 2023 shows that book challenges often involve the argument that a work contains sexually explicit content. It is important to note that it is no coincidence that many of these books depict LGBTQ+ representation. Despite some of these books winning literary awards and garnering recognition and respect for their content, many groups still attempt to prevent their distribution. The Miller Test states that a work must be considered within the context of its whole being and not just a few cherry-picked parts before being deemed obscene. Unfortunately, this rule is often ignored by groups looking to ban literary works who simply disagree with the themes they explore. Some movements even go as far as to try and criminalize library workers. Along with putting out the above mentioned list of challenged books, ALA has been raising awareness for censorships in libraries with their Office for Intellectual freedom. Since 1967, they’ve stated that, “the goal of the office is to educate librarians and the general public about the nature and importance of intellectual freedom in libraries.”

Arkansas Act 372 was a 2023 bill that attempted to criminalize and punish libraries with felony charges for housing materials deemed obscene and inappropriate for minors. The bill provided the means for committees to challenge a book and have it removed from shelves if they perceived it as a danger to younger patrons regardless of its location in the library, accessibility to minors, or actual worth. Fortunately, the Arkansas Central Library System successfully prevented key parts of the act from going into effect and protected the staff from potential legal trouble.

Perhaps as old and persistent as the book itself are the movements, all over the world, to ban and censor them. Content that challenges social convention or is seen as dangerous by different groups often faces opposition in the form of attempted censorship and removal. Accompanying the blocking of each book is the censorship of ideas, perspectives, and experiences. Today, there is an unprecedented number of book challenges in libraries every year brought forth by those looking to control what others are allowed to read. Obscenity has no place in society, but neither does unjust censorship.

Written by James Phaphone, Library Assistant

References

American Library Association. “Top 10 Most Challenged Books of 2023.” https://www.ala.org/bbooks/frequentlychallengedbooks/top10

American Library Association. “Office for Intellectual Freedom.” Office for Intellectual Freedom | ALA

Arkansas Central Library System. “An update from Nate Coulter regarding Act 372.” https://cals.org/news/an-update-from-nate-coulter-regarding-act-372

Arkansas State Legislature. Act 372 of the regular session. https://www.arkleg.state.ar.us/Home/FTPDocument?path=%2FACTS%2F2023R%2FPublic%2FACT372.pdf

Bush, Ally (2022). “Five More Children’s Books You Didn’t Know Were Banned.” Reading Partners. https://readingpartners.org/blog/five-more-childrens-books-you-didnt-know-were-banned/#:~:text=Charlotte’s%20Web%20by%20E.B.%20White&text=Due%20to%20themes%20of%20death,from%20their%20students’%20school%20libraries.

Cornell Law School Legal Information Institute. “Obscenity.” https://www.law.cornell.edu/wex/obscenity

FindLaw. California Penal Code chapter 7.5. https://casetext.com/statute/california-codes/california-penal-code/part-1-of-crimes-and-punishments/title-9-of-crimes-against-the-person-involving-sexual-assault-and-crimes-against-public-decency-and-good-morals/chapter-75-obscene-matter

University of Minnesota Library. “History of Books.” https://open.lib.umn.edu/mediaandculture/chapter/3-2-history-of-books/

United States Department of Justice Criminal Division. “Citizen’s Guide to U.S. Federal Law on Obscenity.” https://www.justice.gov/criminal/criminal-ceos/citizens-guide-us-federal-law-obscenity