A federal judge issued a temporary injunction — again — to block the state’s ban on books with sexual content in K-12 school libraries.
Iowa legislators passed the bill in early 2023. One provision says that books in school libraries cannot include “any material with descriptions or visual depictions of a sex act.”
Major publishing houses and prominent authors, like John Green and Jodi Picoult, are challenging the law, saying that the ban stops them from reaching their intended audience — an infringement on their First Amendment rights.
It’s the second time the issue has landed before U.S. District Judge Stephen Locher.
“If you want to do a history of the Clinton impeachment — this is cited in the opinion — you can't. Yeah, what was he impeached over? Well, can't say.”Penguin Random House attorney Dan Novack
Locher reaffirmed Tuesday that the ban is too broad. He wrote in his opinion that the ban “tries to impose statewide restrictions on what has traditionally been the prerogative of local officials.”
The injunction does not affect another part of the law banning LBTGQ topics in the classroom through sixth grade. Iowa Safe Schools is challenging that provision in a separate lawsuit.
After Locher ruled in favor of Penguin Random House in December of 2023, the Eighth Circuit of Appeals lifted his first injunction, writing that Locher needed to use a different test to determine if the state’s ban was unconstitutional.
'A sigh of relief'
The Des Moines Register reported that educators pulled nearly 3,400 books from their shelves. If they didn’t pull all the books with “sex acts,” they could have their license suspended or removed.
Educators argued that their library collections are already curated by trained professionals to be “age-appropriate." No books with pornographic material are accessible to students, they said, but the ban sweeps up any book with even a minor reference to sex — even those on advanced placement literature tests.
The state, however, argued that educators are overinterpreting the law. A library should enhance a school’s curriculum, their attorney said, and the curriculum is under state jurisdiction. Therefore, the state would also have jurisdiction over library contents.
Locher disagreed with the state. Libraries are not considered government speech nor student speech, he wrote.
“The First Amendment analysis revolves around the rights of those authors to have their books reach their intended audiences and of students to receive the information set forth in those books,.” Locher wrote.
Christy Hickman, an attorney for the Iowa State Education Association, represents teachers, librarians and other educators in the lawsuit. She says her members have some more breathing room.
“What their reaction is today is a sigh of relief, because at least for now, the judge has ordered the state to not enforce Senate File 496 against a teacher or a librarian or others."ISEA Attorney Christy Hickman
“What their reaction is today is a sigh of relief, because, at least for now, the judge has ordered the state to not enforce Senate File 496 against a teacher or a librarian or others,” Hickman said, “And has put teachers and librarians in a position where they are no longer in fear of losing their license.”
Dan Novack, a Penguin Random House attorney, said that the ban denies children the opportunity to learn critical information about the wider world.
“If you want to do a history of the Clinton impeachment — this is cited in the opinion — you can't,” Novack said. “Yeah, what was he impeached over? Well, can't say.”
Iowa Attorney General Brenna Bird has not yet indicated if she will appeal.
“This common sense law makes certain that the books kids have access to in school classrooms and libraries are age-appropriate,” Bird wrote in a statement. “I’m going to keep on fighting to uphold our law that protects schoolchildren and parental rights.”
Attorney's argue that sex is not obscene
Hickman said that before SF 496, school libraries were already obligated to keep obscene books off shelves. Since 1973, the U.S. Supreme Court has used three guidelines, called the Miller Test, to determine what counts as obscene.
“Iowa has gone well beyond any sort of obscenity standard. Our school districts were never in violation of the obscenity standard,” Hickman said. “That was definitely not a problem that the Legislature was trying to fix.”
When asked if sex is inherently obscene, both Novack and Hickman said no. Hickman said when the ban was being debated in the Legislature, the greatest concern seemed to be about exposing children to LGBTQ themes.
Novack said that Locher’s ruling upholds the literary value of books beyond their depictions of sex acts.
“That is the analysis that we have fought for, is for librarians and educators to decide that books have merit, that despite challenging material, that they are nonetheless valuable for kids if they want to read them,” Novack said.
Novack noted that the Eighth Circuit’s ruling is already being used as precedent in other First Amendment cases nationwide.
In Colorado, the judge in Crookshanks v. Elizabeth School District also ruled in favor of keeping books on shelves. In Florida, the judge in Penguin Random House v. John Gibson revoked the state’s motion to dismiss the case.
