From left: Author Laurie Halse Anderson, author Malinda Lo, and Iowa State Education Association President Mike Beranek. Screenshots taken during the November 30 news conference announcing a new legal challenge to Senate File 496.

“The right to speak and the right to read are inextricably intertwined.”

So declare the plaintiffs in the second lawsuit filed challenging Iowa’s new ban on certain library books and classroom materials.

The new federal lawsuit focuses on two provisions of Senate File 496, which Republican lawmakers approved in April and Governor Kim Reynolds signed in May. A separate federal lawsuit filed last week challenges SF 496 in its entirety, focusing on additional provisions targeting LGBTQ students as well as the book bans.

Here’s the initial court filing submitted November 30 in the U.S. District Court for the Southern District of Iowa.

The plaintiffs are:

• Penguin Random House, which has published many books removed from at least one Iowa school district since SF 496 became law;
• Best-selling authors Laurie Halse Anderson, John Green, Malinda Lo, and Jodi Picoult, who each have written one or more books that some Iowa school libraries have removed, citing SF 496;
• Scott Bonz, the parent of Hailie Bonz, an Urbandale High School student who would have checked out books removed from her school’s library;
• The Iowa State Education Association, the state’s largest teachers’ union;
• Mari Butler Abry, Alyson Browder and Daniel Gutmann, educators and ISEA members who “are being forced to remove” books from their libraries and classrooms to comply with the law.

The defendants are Iowa State Board of Education President John Robbins, Iowa Department of Education Director McKenzie Snow, Iowa State Board of Educational Examiners Chair Chad Janzen, the Urbandale Community School District board and superintendent, and the Norwalk Community School District board and superintendent.

LAW GOES “FAR BEYOND PROHIBITING BOOKS THAT ARE OBSCENE”

SF 496 affects Iowa’s public schools in many ways, but the new lawsuit focuses on two areas.

“The Age-Appropriate Standard” requires that school libraries include only “age-appropriate materials,” adding that age-appropriate does not include “any material with descriptions or visual depictions of a sex act.” It applies to libraries serving kindergarten through twelfth grade, which means that “a 16-year-old high school sophomore in Iowa can legally consent to a sex act, but cannot read a school library book (or a book from a classroom collection) about it.”

A recurring theme in the lawsuit is that SF 496 does not follow longstanding U.S. Supreme Court precedent on obscenity. In a 1973 case known as Miller v. California, the Supreme Court established a three-part test for determining whether material is obscene. The work must (1) “appeal to the prurient interest in sex” as a whole, (2) “portray sexual conduct in a patently offensive way,” and (3) taken as a whole, have no “serious literary, artistic, political, or scientific value.”

SF 496 “does not account for the value of a book as a whole or its literary, scientific, medical, artistic, or political value,” the plaintiffs argue. On the contrary,

Senate File 496 requires the removal of numerous award-winning books and other literary classics from school libraries and classroom collections solely because just a single portion of the book concerns a sexual encounter. This serves no legitimate pedagogical purpose. […]

The Age-Appropriate Standard goes far beyond prohibiting books that are obscene as to minors because it prohibits books with even a brief description of a sex act for students of all ages without any evaluation of the book as a whole or its literary, artistic, political, or scientific value. Under the Age-Appropriate Standard, highly-regarded books – even ones that have been on shelves for many decades – must be removed from school and classroom libraries in Iowa if they contain a description of a sex act, even if the books taken as a whole are not obscene.

Dan Novack, vice president and associate general counsel for Penguin Random House, explained during a November 30 news conference that laws like SF 496 ignore “very well-defined standards” about obscenity. “There is no analysis. It’s a complete collapse of context. […] Does this book have the thing that we find distasteful? If so, do not pass go, go directly to jail.”

The plaintiffs further assert that the Age-Appropriate Standard is “vague and ambigious,” which leads to “overbroad interpretations” that have “a chilling effect on protected speech.”

PROHIBITION ON LGBTQ CONTENT “COULD APPLY TO WIDE SWATHS OF CONSTITUTIONALLY PROTECTED BOOKS”

The lawsuit also targets what it calls the “Identity And Orientation Prohibition” in SF 496, which states, “A school district shall not provide any program, curriculum, test, survey, questionnaire, promotion, or instruction relating to gender identity or sexual orientation to students in kindergarten through grade six.” (That provision is more commonly known as “don’t say gay or trans.”)

Although the law does not define “program” or “promotion” in this context, the plaintiffs note that some school districts, including Norwalk, have “construed the Identity And Orientation Prohibition to apply to books and library programs.”

The Iowa State Board of Education’s proposed administrative rules on SF 496 say a “neutral statement regarding sexual orientation or gender identity” will not be considered a violation of the law. The plaintiffs’ court filing argues, “This attempt to clarify is inadequate because the meaning of ‘neutral statement’ is unclear and vague. For example, it is unclear whether a book that references a marriage but with any adjective or description, such as ‘happy,’ would fall under the prohibition.”

As written, the Identity And Orientation Prohibition could apply to wide swaths of constitutionally protected books that any person would recognize should be available to kindergarten through sixth grade students. Books that even mention a person’s gender or the gender of their partner in a relationship or marriage may “relate” to gender identity or sexual orientation, which would subject them to the Identity And Orientation Prohibition. […]

Members of the Iowa legislature have suggested that the Identity And Orientation Prohibition is intended to be applied in a discriminatory manner, only to LGBTQ+ individuals. […]

Plaintiffs are unaware of any suggestion by the State Defendants or the Iowa legislature that the Identity And Orientation Prohibition is intended to apply to books with heteronormative characters or themes.

COUNT I ASSERTS THE RIGHTS OF AUTHORS AND PUBLISHERS

The court filing notes, “The First Amendment ensures that authors can communicate their ideas to students without undue interference by the government.“ It lists seventeen books by thirteen different authors, all published by units of Penguin Random House, which are on the Urbandale school district’s most recent removal list. Similarly, the lawsuit lists 21 books by 21 different authors that were published by Penguin Random House imprints and are on the Norwalk school district’s removal list.

The first constitutional claim, filed on behalf of Penguin Random House and the four author plaintiffs, says the book ban violates the First and Fourteenth Amendments of the U.S. Constitution as an overbroad and unreasonable content-based speech restriction. “The Age-Appropriate Standard is over-inclusive in that it covers any book with any description of a sex act for students of all age groups,” without applying the three-part test the Supreme Court established to determine whether work is obscene. SF 496 is also “under-inclusive,” since it exempts the Bible and other religious texts from the prohibition on books containing descriptions of a sex act.

Novack commented during the press conference, “Penguin Random House is not asking anyone to read or buy our books that does not want them. But we can insist on them not being blocked due to their departure from government orthodoxy.”

He also said, “Our lawsuit isn’t breaking new ground, as much as it’s retreading long-corrected mistakes. Government authorities cannot violate the First Amendment right to free speech by pretending that school grounds are constitutional no-fly zones.”

The lawsuit notes that SF 496 applies equally to works of fiction and non-fiction, such as plaintiff Halse Anderson’s memoir Shout, recounting the author’s experience with sexual assault, and “an illustrated children’s book about the life of Harvey Milk, the first openly gay elected politician in California.”

The Age-Appropriate Standard interferes with authors “ability to make their books available to whom they desire and to distribute constitutionally protected books, and it unconstitutionally chills the Author Plaintiffs, [Penguin Random House], and others from engaging in protected activity.”

Plaintiff Malinda Lo, whose novels for young readers center queer Asian American girls, said during the press conference, “Seeing yourself in a book can be a transformative and empowering experience, one that I rarely had when I was growing up.” Since she wrote her novel Last Night at the Telegraph Club, “many queer Asian Americans have reached out to me to tell me how much this book meant to them, because our lives are so often invisible in our culture.”

Halse Anderson said that since she published Shout and the novel Speak, “Thousands and thousands of my readers have shared their stories with me, stories of being raped, or sexually abused, or sexually harassed. They tell me that Speak and my memoir Shout gave them the information that they needed in order to speak up, to reach out, and to get appropriate support.”

Asked about comments by Governor Reynolds and other Republican politicians, who have said SF 496 removes “pornography” from schools, Halse Anderson replied, “I think that anybody who finds a book about a 13-year-old rape survivor as being pornographic needs some professional help.”

One former Iowa high school teacher commented on social media that she used to read Speak aloud, and “Students remember that most from my class, the power of words—Melinda’s words.”

COUNT II ASSERTS THE RIGHT OF A STUDENT AND HER PARENT

The lawsuit argues, “School libraries are integral to student learning,” and “also central to a student’s First Amendment right to access new ideas and information.” The lawsuit claims the Age-Appropriate Standard violates the First Amendment rights of plaintiff Scott Bonz, who wants his child “to be able to check out and read from H.B.’s school or classroom libraries books that have been targeted for removal or removed due to Senate File 496, including Looking for Alaska, The Color Purple, and The Handmaid’s Tale.”

Bonz’s child Hailie Bonz also wants to check out those books from her Urbandale school and “wants to be able to possess, read, and discuss such books in school without incurring the stigma associated with having, reading, or discussing books that have been falsely branded as ‘pornographic’ or otherwise inappropriate due to Senate File 496.” In a written statement provided by the ISEA, Hailie Bonz explained,

School and classroom libraries are important resources that ensure that all students have access to books and information. Not everyone can afford to buy a copy of every book they’d like to read – consequently, a suppression of ideas and viewpoints in libraries deprives whole communities and generations of an oasis on knowledge and growth. I have chosen to speak out to preserve our intellectual freedom and defend the right to read for myself and my fellow students in Iowa.

Novack said during the press conference that the case raises a simple question: “Does the First Amendment apply in school libraries?” If the answer is no, the American people deserve to know that, he said, before clarifying that “The answer has always been yes.”

COUNT III: BOOK BAN IS TOO VAGUE

On behalf of all plaintiffs, the court filing notes, “The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution prohibits statutes that are so impermissibly vague that an ordinary person would not understand what conduct the statute regulates or that are so standardless as to invite arbitrary enforcement. […] This prohibition is vigorously enforced when protected First Amendment conduct is involved.”

The prohibition on all materials describing a sex act includes “terms that are vague, indefinite, arbitrary, and subject to different meanings such that they fail to provide adequate notice of their obligations in violation of the First and Fourteenth Amendments to the U.S. Constitution.”

Iowa State Education Association President Mike Beranek emphasized during the news conference that the books removed in some school districts are not just about sex, but also include work by Black authors or others offering diverse historical perspectives. When we focus on one book or one topic, he said, we begin to “lose sight of what democracy is and what the First Amendment means.”

COUNT IV: BAN ON LGBTQ TOPICS IS CONTENT-BASED RESTRICTION

The author plaintiffs and Penguin Random House assert that SF 496’s “Identity And Orientation Prohibition” is “a content-based restriction because it regulates the availability of books in a school library based on ‘the topic discussed, or the idea or message expressed'”—in this case, material relating to gender identity or sexual orientation. The same language is also overbroad.

This part of Iowa’s law violates the First and Fourteenth Amendment rights of the authors and publisher, because it “interferes with their ability to make their books available to (and to be read by) whom they desire and to distribute constitutionally protected works.”

COUNT V: BAN ON LGBTQ TOPICS IS VIEWPOINT-BASED RESTRICTION

The U.S. Supreme Court has held that the First Amendment prohibits the government from regulating speech that expresses disfavored viewpoints. Provisions in SF 496 that restrict materials relating to sexual orientation and gender identity in grades K-6, as applied by state officials and the Norwalk school district, violate the rights of the authors, publisher, and educators.

As set forth above, the Identity And Orientation Prohibition is meant to be applied in a discriminatory fashion. The books that have been removed, or targeted for removal, under the Identity And Orientation Prohibition are books that explore LGBTQ+ themes or portray LGBTQ+ characters, despite the fact that the prohibition applies to any books relating to sexual orientation or gender identity. […]

The Educator Plaintiffs, as well as other Iowa educators, must decide whether to remove books based on this viewpoint discrimination or to subject themselves and their districts to penalties for refusing to do so.

The same viewpoint discrimination denies LGBTQ students “access to books that reflect their identities and experiences.” (The other federal lawsuit challenging SF 496 develops these arguments more extensively on behalf of plaintiffs who are LGBTQ students in Iowa public schools.)

COUNT VI: BAN ON LGBTQ TOPICS IS AN EQUAL PROTECTION VIOLATION

This count also applies to the defendants representing the state and the Norwalk school district. “The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution constrains the ability of state actors from discriminating on the basis of gender identity or sexual orientation.”

As set forth above, the Identity And Orientation Prohibition is meant to be applied in a discriminatory fashion because if it were applied to programs or promotions that related to all discussions of gender identity and sexual orientation, including heteronormative identities and orientations, nearly the entire cannon of Western literature would be prohibited in Iowa school libraries and classroom collections.

Books removed from Norwalk school libraries or classrooms “are authored by LGBTQ+ authors or that explore LGBTQ+ themes or portray LGBTQ+ characters, despite the fact that the prohibition facially applies to any books relating to sexual orientation or gender identity.” The plaintiffs argue that proves “school districts are targeting books and/or authors based on prohibited animus.”

COUNT VII: BAN ON LGBTQ TOPICS IS UNCONSTITUTIONALLY VAGUE

The authors, Penguin Random House, and educators make this claim against the defendants representing the state and the Norwalk school district. The ban on material “relating to gender identity and sexual orientation” is too vague to comply with the First and Fourteenth Amendments.

“Furthermore, the term ‘program’ is not defined, and it is unclear whether the Identity And Orientation Prohibition applies to school libraries or classroom collections.” Nor does SF 496 clarify whether violations of this provision could lead to the same penalties for educators as violations of the ban on material depicting a sex act.

The plaintiffs are seeking a preliminary injunction that would bar the state and school districts from enforcing the book ban at all grade levels and prohibitions on LGBTQ material in grades K-6. They are not seeking any monetary damages.

Asked at the press conference to compare this case to the lawsuit the ACLU of Iowa and Lambda Legal filed on behalf of LGBTQ students and the advocacy group Iowa Safe Schools, the Penguin Random House attorney Novack said, “We are coming at it from a very different perspective.” As a publisher and authors, they are laser-focused on the First Amendment. He said none of the arguments in this lawsuit contradict the claims in the other suit, but “Our case is narrower.”

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Appendix: Full video of November 30 news conference announcing lawsuit challenging part of Senate File 496: