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What Are Obscenity Laws?: Book Censorship News, March 18, 2022

Kelly Jensen


Kelly is a former librarian and a long-time blogger at STACKED. She's the editor/author of (DON'T) CALL ME CRAZY: 33 VOICES START THE CONVERSATION ABOUT MENTAL HEALTH and the editor/author of HERE WE ARE: FEMINISM FOR THE REAL WORLD. Her next book, BODY TALK, will publish in Fall 2020. Follow her on Instagram @heykellyjensen.

One of the most comment complaints parents and citizens are lodging against books in public schools and libraries is that the material breaks obscenity laws. This, along with citing pornography laws, is the justification being cited in both formal and informal complaints. It’s the language being shared in social media “parents rights” groups to prop up argumentation. Several would-be censors have found this a natural lead-in to creating police reports about so-called obscene books like Gender Queer, Out of Darkness, and All Boys Aren’t Blue.

Unfortunately for these censors, what they’re sharing and advocating fails to meet the definition of obscenity.

Obscenity is a small subset of pornography. It’s outlined as follows in U.S. Federal Law on Obscenity:

The U.S. Supreme Court established the test that judges and juries use to determine whether matter is obscene in three major cases: Miller v. California, 413 U.S. 15, 24-25 (1973); Smith v. United States, 431 U.S. 291, 300-02, 309 (1977); and Pope v. Illinois, 481 U.S. 497, 500-01 (1987).  The three-pronged Miller test is as follows:

1. Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);

2. Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and

3. Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.

 Any material that satisfies this three-pronged test may be found obscene.

This week, the Epoch Times, a right-wing fake news site, posted about a rally “parents rights” activists planned to wage at Downers Grove North High School in Illinois. The call to action looked as follows:

Parents stand up to pornography image

Pornography is a constitutionally protected matter of free speech and expression. The only illegal pornography is that depicting child pornography — defined here — and material defined as obscene.

In no way is Gender Queer, even depicted in excerpt as it is above, pornography. The imagined sex scenes are between consenting adults and do not happen in the story’s timeline. This, of course, doesn’t matter to censors.

That’s where obscenity comes into play.

Censors do not understand (and do not care) that in order for material to be deemed obscene, it needs to be taken as a whole. Cherry-picking pages and passages to prove obscenity isn’t how the law works. In fact, Gender Queer is a sterling example of how obscenity laws like the ones in the U.S. protect freedom of speech and expression. Indeed, sex is discussed and illustrated. But it is sliver of the story as a whole, constituting no more than 2% of the entire text.

But what would censors who enjoy picking and choosing what to battle know about taking anything as whole?

Further, not a single title among the hundreds being challenges include child pornography. Publishers would not purchase, back, nor defend a work of child pornography, as their legal departments are clear on what the laws are. Nude bodies and even nude bodies depicted in a consensual relationship on page in a book for middle or high school students is not child pornography.

The morbid fixation and pornographic gaze come only through the eyes of those same right-wing censors.

Taken as a whole, that’s pretty obscene indeed.

This Week’s Call To Action

Indivisible, alongside several Illinois-based groups, are hosting a free Zoom educational session this weekend on combatting disinformation at school board meetings. This is the eighth in a series, but anyone is welcome to attend and apply the information to their own school boards anywhere in the country.

To join, register here. The program begins at noon central on Saturday, March 19.

For more ways to take action against censorship, use this toolkit for how to fight book bans and challenges, as well as this guide to identifying fake news. Then learn how and why you may want to use FOIA to uncover book challenges.

Book Censorship News: March 18, 2022

Further Reading

  • The insidious rise of soft censorship — I’ll be honest in saying I don’t think it’s been rising. It’s always been around. The current censorship culture has brought the conversation back to light.
  • Finally, this woman in Virginia is trying to make a parent-friendly database of books that includes content warnings and potential problems for parents within them. It is a bizarre project ripe with opportunity for further censorship…not to mention the title of the website is itself a red flag on how real adults who don’t work with books see books as political tools and little more. And who gets to determine the criteria for what is or isn’t appropriate here? Why isn’t the other problematic “parental knowledge” database of Common Sense Media enough? (She is, of course, a nice white lady).