Not content to demand books be removed from classroom shelves, or to pass laws that restrict topics students can read about in school libraries or even discuss in classrooms, now the book banning movement is going after publishers, with legislation that would censor what books they can publish or distribute to public schools, with imprisonment and fines as possible punishment upon conviction in some cases. Today’s efforts to ban books in schools are already unparalleled in recent history, and over the past year, new laws have supercharged the movement; but legislation that directly targets publishers represents a novel attack on books in schools.
In Tennessee, a new law, just signed by Governor Bill Lee, makes it a felony for a book publisher, distributor, or seller to provide “obscene matter” to a public school serving any K-12 students. Those found to have violated the prohibition would face between one and six years in prison and a fine of at least $10,000.
In Texas, HB 900, which just passed the state’s House of Representatives, would require book vendors to give books with any reference to sex a rating of either “sexually explicit” or “sexually relevant.” Books rated “sexually explicit” could not be sold to schools, and those deemed “sexually relevant” would require parental approval for students to access.
And at the federal level, Rep. Cory Mills (R-FL) introduced H.R. 863 in February, which would “prohibit a publishing house from knowingly furnishing sexually explicit material to a school or an educational agency,” and ban the provision of federal funds to any school that obtains sexually explicit material or to any educational agency that distributes it.
Of course, book publishers and distributors aren’t putting pornography in schools. And it is already a federal crime to distribute obscene materials to minors, rendering these new bills unnecessary, if that were their goal. But these bills aren’t actually about obscene materials. They’re about giving book ban activists another way to advance their broad censorship crusade.
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We know what the book banning movement actually means when they use the word “obscene.” Across the country, charges of obscenity and ‘porn in schools’ are being used to ban classics like Toni Morrison’s The Bluest Eye and Margaret Atwood’s The Handmaid’s Tale, claiming the presence of any sexual content in a book makes it illicit and harmful to minors. We have seen this with books by John Green and Jodi Picoult in Utah and Florida. Even Maus, Art Spiegelman’s Pulitzer-prize winning graphic novel about the Holocaust, was banned in one Missouri district using this justification.
The sponsor of Tennessee’s bill, Rep. Susan Lynn, has admitted as much, saying, “if there are sexually explicit sentences in the book, that qualifies.” But the standard legal test for whether something is obscene specifically requires that a work be taken as a whole; a single sentence or image alone does not an obscene book make. The work also has to lack, as a whole, artistic, literary, political, or scientific value. There should be no question that books like The Bluest Eye and Maus hold literary value, but that hasn’t stopped them from being banned.
Beyond this mischaracterization of sexual content, sometimes the mere presence of LGBTQ+ characters or themes in a book is reason enough for someone to allege it is ‘pornographic’—a conflation with a long and discriminatory history. Even a number of children’s picture books that represent same sex couples have appeared on lists of allegedly pornographic books that have circulated to schools, and some districts have removed these books as a result.
While the Tennessee law and other bills would ostensibly still be bound by the legal definition of obscenity, it is impossible to ignore the climate in which these bills are being advanced, where the legal definition is being misrepresented—if not outright ignored—by officials supporting these laws. The threat of felony charges in this context could well exert a chilling effect.
Publishers and book distributors are well aware of what types of books legislators are eyeing. As PEN America’s research has shown, the majority of books being banned across the country in the past 18 months have been by or about people of color or LGBTQ+ individuals. The very books and stories that have only recently found a place on library shelves. The laws the book banners want to pass risk creating financial incentives for publishers to keep books by and about these groups out of their catalogs.
Something similar has already happened with teachers and librarians, who have been intimidated into removing works of literature from shelves because of threats of punishment in new laws, even though the laws do not themselves change the definition of obscenity. The laws’ vague language is enough to put educators on notice that distributing books with certain content might get them into trouble. If these new bills become law, publishers are certain to be placed in the same position. And just as school districts in Florida have been told to do with their library collections, publishers may choose to likewise “err on the side of caution” regarding what stories they make available.
This is a dangerous escalation in the movement to censor public education. In a very short time, the censorship advocates have gone from trying to control what can be studied and read in schools to trying to control what private companies can publish.
Let’s be clear. These bills are not about protecting children. They are about using the power of the state to intimidate private companies and ban ideas and stories that some people find offensive or uncomfortable. By going after private publishing houses, these bills represent an appalling and undemocratic attempt at government overreach, and yet another escalation in the war against the freedom to read.
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