by Clark Kauffman,
A long-running legal battle over Iowa’s school book ban took another turn Thursday with opponents and lawyers for the state arguing their case before a federal judge.
Lawyers for a book publisher that is challenging the law called it a “statewide, one-size-fits-all statute that eliminates discretion by school librarians,” while lawyers for the state characterized it as an appropriate and lawful attempt by lawmakers to control the materials publicly funded schools are offering their students.
The law is part of Senate File 496, which was approved in May 2023, and includes provisions that ban, for grades K-12, virtually all books containing descriptions or depictions of a sex act. The bill also includes a provision that, for grades K-6, forbids “curriculum” or “instruction” that is related to gender identity or sexual orientation.
The law was scheduled to go into effect in July 2023 with penalties for violations beginning in January 2024. Within months of the bill’s passage, thousands of books were removed from Iowa school shelves, including “To Kill a Mockingbird,” “1984,” and “A Catcher in the Rye.”
In November 2023, the ACLU of Iowa and the Lambda Legal Defense Educational Fund, representing Iowa Safe Schools, a nonprofit group that supports LGBTQ+ youth, filed a federal lawsuit against the state, seeking an injunction to block enforcement of the new law. Book publisher Penguin Random House and the Iowa State Education Association also filed a lawsuit seeking an injunction that would prevent enforcement of the book ban.
In December 2023, U.S. District Court Judge Stephen Locher issued an injunction blocking some elements of the law. The state appealed that decision and in August 2024, a three-member panel of the U.S. Court of Appeals for the Eighth Circuit sent the case back to Judge Locher, directing him to reconsider the law’s constitutionality in light of a recent First Amendment decision by the U.S. Supreme Court in Moody v. NetChoice. That case involved a lawsuit over speech on social media platforms.
The ACLU and Lambda Legal then filed a renewed request for a preliminary injunction, as did Penguin Random House and the ISEA. On Thursday, attorneys for all parties in both cases argued their case before Judge Locher at the federal courthouse in Des Moines.
‘Stupid’ or ‘unconstitutional’?
During Thursday’s hearing, Judge Locher observed that not all laws that are ill advised are unconstitutional, noting that former U.S. Supreme Court Justice Antonin Scalia used to joke that federal judges should be given two stamps when ruling on new laws, with one stamp marked “stupid,” and the other marked “unconstitutional.”
“You can break out both stamps for this one, your honor,” said Thomas Story, attorney for the ACLU of Iowa, drawing laughter from lawyers on both sides of the case.
A key argument by Frederick Sperling, attorney for Penguin Random House, was that the law is so vague and so open to interpretation — it doesn’t distinguish between books that are appropriate for second-graders and those that are suitable for high school seniors, he said — that it has resulted in both constitutional and unconstitutional restrictions on books.
Sperling noted that some books that would be subject to the ban are nonfiction historical works that include brief descriptions of sex acts within a much a larger, nonsexual context. “These are important books for high school seniors,” Sperling said. “They’re not appropriate for third-graders.”
Sperling argued that “if there’s a single sentence” in a book that describes a sex act, the book is “pulled off the shelves” without regard to the context and without regard to whether it is made available to third-graders or to graduating seniors who are adults.
“You can’t use a tool to unconstitutionally restrict free speech, even if you’re also using that same tool to constitutionally restrict free speech,” he told the court.
‘Chaos and confusion’
Asked by Locher whether he believes the state has the authority to control the actions or communications of the public schools, Sperling said “the problem with the statute is that it takes away discretion by local school librarians.”
In a brief filed with the court recently, Sperling argued the law “unconstitutionally prohibits school librarians and other trained educators from considering the age of the potential reader and the value of each book as a whole.”
William Admussen, representing the state, told the court a preliminary injunction wouldn’t be appropriate in the case given the fact that it has been in effect for almost a year — albeit not continuously, due to the the various preceding court rulings.
Story argued otherwise, noting that it’s still unclear, even to the Iowa Department of Education, which books should be pulled from school shelves. He said the status quo is one of “chaos and confusion,” which is one reason why an injunction would be appropriate.
Locher indicated he was struggling with certain aspects of the case, particularly the fact that certain, brief descriptions of sex may appear to be salacious when read in isolation, but not when read as one element of a 300-page book.
At one point, he asked whether the state feels a teacher can assign a book to a class if that book makes reference to a same-sex couple. Admussen indicated that if the reference was “neutral,” and didn’t endorse or advocate such a relationship, such a book would not be prohibited by the new law.
Admussen said the book ban does not violate the First Amendment, and noted that higher courts have held that limitations on school-sponsored speech are constitutional if they are reasonably related to a legitimate pedagogical purpose. Specifically, he said, the Eighth Circuit Court of Appeals has held that school libraries are a form of school-sponsored speech.
At the conclusion of Thursday’s two-and-a-half-hour hearing, Locher told the parties he hopes to render a decision in the case “as fast I can, but it probably won’t be terribly fast,” noting that he’s scheduled to preside over a trial next week.
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