Lawyers argue Iowa’s book ban law too ‘vague, harmful’ in court

ACLU Staff Attorney Thomas Story, attorney Nathan Maxwell of Lambda Legal. Photos submitted

By Nikoel Hytrek

December 22, 2023

SF 496, Iowa’s new education law, is too vague, too broad, and too restrictive of speech and individual rights. That’s according to lawyers arguing, in separate cases, for the US District Court Southern District of Iowa to place a preliminary injunction on the law.

One suit was brought led by the American Civil Liberties Union (ACLU) of Iowa and Lambda Legal, and the other by book publisher Penguin Random House. The cases were filed in late November and because they concern similar, overlapping interests, Judge Stephen H. Locher requested to hear arguments on both at the same time on Friday morning.

SF 496 enacted a multitude of changes to Iowa’s public education system, including book bans, removing explicit instruction on HIV/AIDS, banning discussion of gender identity in K-6, and forcing teachers to out students to their parents.

Locher did not make a decision Friday but said he would do so before the Jan. 1, 2024 date when the book-banning provision of SF496 goes into effect.

So what were the arguments?

The ACLU and Lambda Legal case targets all of SF 496, claiming it violates the First and Fourteenth Amendments and the Equal Access Act. This case was argued by ACLU Staff Attorney Thomas Story.

His arguments took up a bulk of the hearing time.

ACLU & Lambda Legal case

Story walked through the case about how the law violates the US Constitution by:

  • “chilling student speech based on its content and viewpoint,”
  • “violating students’ rights to receive information and ideas,”
  • “violating students’ rights of expressive association,”
  • “being unconstitutionally overbroad and vague,”
  • “making classifications based on sexual orientation and transgender status without adequate tailoring and justification,”
  • and “violating students’ rights under the Equal Access Act.”

ACLU& Lambda Legal arguments

Story shared the perspectives of students who haven’t reported bullying incidents because they’re afraid of having their gender identity reported to their parents. It’s the same reason a lot of students have avoided joining gay-straight alliances at their schools, he said. That is an infringement on their rights to speak, express themselves, and associate with other LGBTQ students, he argued. Some schools have eliminated their GSAs entirely.

GSAs can refer to many things but are basically groups where students can meet and talk to other LGBTQ students or students who might support them. GSA is the most well-known initialism.

“What matters is the students themselves are silenced,” Story said.

Story said the law is clearly too vague because school districts have interpreted and applied it differently, despite asking for state guidance—and not getting it—for months.

Judge Locher mentioned several places in the law where the language is neutral about books and gender identity, and pointed out several books with straight characters have been removed from school libraries too.

Story said the law’s text may be neutral but it hasn’t been interpreted or applied that way because LGBTQ students are the only students feeling the effects outside of the book-banning provisions. Cisgender, straight students, Story said, don’t have to ask for different pronouns or names, and they don’t have to worry about being reported to their parents if they join a club.

He also said it’s clear the law was meant to be discriminatory in some way because multiple Republican legislators, when discussing the law, made comments about schools trying to indoctrinate students and they only used books with LGBTQ characters as examples of the types of books that needed to be removed from school libraries. Story acknowledged other books may have been swept up, but they weren’t specifically targeted the way books with LGBTQ characters have been.

“No law could ever erase LGBT identity, but this law is doing harm on the way,” he said.

Penguin Random-House case

The Penguin Random House case focused on the book-banning aspect of the law.

It argues SF 496 violates the First and Fourteenth Amendments to the US Constitution because:

  • it restricts access to constitutionally protected books based on their content,
  • discriminates against LGBTQ+ viewpoints and authors,
  • and the language in the law is “unconstitutionally vague.”

Penguin Random-House arguments

Attorney Fred Sperling, talked mostly about case law regarding schools banning books and said, by those standards alone, Iowa’s law goes too far.

The case argues SF 496 violates authors’ and publishers’ ability to speak without restriction, the age-appropriate standard is overbroad and the confusion about how to apply it makes clear the law is too vague.

Sperling argued the law doesn’t consider the overall content or value of a book before ordering it to be removed, which has led to the removal of award-winning books, books that frequently appear on exams, and nonfiction books that discuss sex or sexuality in an informative way. None of those books, even the ones mentioning sex, he said, are obscene or pornographic.

The age-appropriate standard in the law has no sliding scale to take the reader’s age into account, Sperling said, which means treating 17-year-olds and 5-year-olds the same way when it comes to content.

The fundamental problem, he argued, is that the law isn’t tailored narrowly enough to justify restricting speech, which is unconstitutional. And it’s a clear risk to speech, he said, because hundreds of books have been removed from Iowa school libraries.

The state’s response

Daniel Johnston, an Iowa assistant attorney general, argued for the state. He reiterated the state’s position that the book-banning provision is meant to remove pornography and graphic depictions and descriptions of sex from schools. He said the definition clearly meets that goal.

Johnston’s argument ultimately came down to the bare text of the law not targeting any viewpoint or group and he said legislators’ comments while debating the bill aren’t relevant to its intent. He said the law is clear about the content that should be removed from schools and if school districts are removing more, they’re not reading the law correctly.

Locher pushed, asking if a correct reading of the law would include removing a number of nonfiction, history books, including those about the realities of sexual assault and abuse and how to discuss them. Johnston said “Yes.”

Johnston also justified the law by claiming the government speech doctrine applies to school libraries, which would give the state more freedom to regulate school libraries. Nathan Maxwell with Lambda Legal noted later that courts have never applied that standard to school libraries.

On the subject of discrimination against LGBTQ students, Johnston said the law doesn’t explicitly punish students, so any chilled speech is their own decision. He said students’ fear of harm comes from an “overreaction.”

As for teachers, their first consequence for breaking the law is only a written warning, he said. Teachers aren’t penalized, he said, unless they “knowingly” break the law again and even then it isn’t automatic.

Ultimately, Johnston said the law is being misinterpreted and that’s where the harm is coming from.

Story and Sperling were allowed to respond to Johnston’s arguments and both reiterated many of their original points about the law being too vague and its effect in chilling speech and causing harm.

“The state can’t have it both ways,” Story said, pointing out the state can’t say the law is clear when districts around the state interpret it in different, contradictory ways, and say they’re just following the law.

“Someone has to answer for this,” he said.

 

Correction: an earlier version of this story misidentified the lawyer arguing on behalf of Penguin Random House and declined to mention Lambda Legal’s connection to the ACLU case. The story has been updated.

  • Nikoel Hytrek

    Nikoel Hytrek is Iowa Starting Line’s longest-serving reporter. She covers LGBTQ issues, abortion rights and all topics of interest to Iowans. Her biggest goal is to help connect the dots between policy and people’s real lives. If you have story ideas or tips, send them over to [email protected].

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