The immediate fate of a controversial new Iowa book banning law, SF 496, is now in the hands of a federal judge. At a December 22 combined hearing, lawyers for the plaintiffs in two separate lawsuits told judge Stephen Locher of the U.S. District Court Southern District of Iowa that the new law—which opponents say targets the LGBTQ community—is unconstitutional and should be blocked. And in an encouraging sign for opponents of the law, lawyers for Penguin Random House, one of the plaintiffs, noted that Iowa attorneys conceded to the court that LGBTQ content was being wrongly banned.
"We are extremely gratified that Iowa acknowledges that LGBT positive books should be back on shelves and accessible by all students, and we are confident in the direction of our case after today’s hearing," said PRH associate general counsel Dan Novack in a statement. "Our position remains that all viewpoints and perspectives must be made equitably available to readers, and Judge Locher quickly and clearly validated the importance of that today."
Signed by Iowa governor Kim Reynolds in May, SF 496 bans books with depictions of sex, written or visual, from school libraries, and prohibits instruction and materials involving “gender identity” and “sexual orientation” for students through sixth grade. In response, various Iowa school districts have reportedly already pulled hundreds of titles from their shelves, including a disproportionate number of books that contain LGBTQ characters, historical figures, or themes.
Furthermore, as of January 1, 2024, the law would require school officials—including teachers, librarians, and counselors—to report to parents if their child requests to use a different name or pronouns under the threat of disciplinary action, regardless of whether this “forced outing," as critics have called it, would expose the student to potential family rejection and/or abuse.
But in a major concession, Iowa attorney Daniel Johnston appeared to affirm for the court that the ban on LGBTQ "instruction" for students below the seventh grade should not be read as a ban on all LGBTQ books in school libraries. "Really all [the law] says is that instruction on these topics, we're going to reserve that until after sixth grade, and so [the plaintiffs'] concern was that if this applied to the libraries as well, then books that merely had, like, a gay character in it, then school libraries would have to remove the book containing the gay character," Johnston explained. "That's not how the statute operates."
Johnston went on to state that books could only be pulled from school libraries under the law's provision prohibiting books with depictions of "sex acts" and not on the basis of gender identity or sexual orientation.
In an illuminating exchange, Locher asked Johnston to elaborate: Could a fourth grade teacher share a book with gay characters with students? No, Johnston replied. Could a student choose to write a book report about a book with gay characters? Yes, Johnston said. "A teacher could say, 'I want all the students to write a student essay.' If that student then themselves goes to the library and selects a book about gay characters, that's perfectly fine."
While reiterating their belief that all the book banning provisions of the law are "a direct violation of the First and Fourteenth Amendments of the Constitution," Novack told PW that Johnston's concession that books should not be pulled from school libraries based on issues of gender identity or sexual orientation stands as a partial victory. "Now we're focused on knocking out the other half of the book ban," Novack said.
Meanwhile, ACLU attorney Thomas Story hammered the state's contention that the law was written neutrally, and insisted the full statute should be struck down.
"The entire law is discriminatory. The entire law was passed with animus," Story told the court. "Your Honor, you asked them about, okay, a teacher reads a book in front of a class and it features a gay character. Would that violate the statute? And the answer was yes, right? Would the State feel like it was violating the statute if that book had a straight character? Absolutely not. But that's why the law may textually be neutral, but as applied in effect and its intent, we all know the difference," Story argued.
He closed by noting the state's failure to make "a compelling case" for why the law is necessary: "They haven't clarified that it's not vague or ambiguous. They haven't established that it is not discriminatory. They've just said that it's the government and they can say what they want, and, Your Honor, that is not an effective position, and it's not constitutional. So we'd ask that this law be enjoined."
The Penguin Random House suit was filed on November 30 in the U.S. District Court for the Southern District of Iowa, and focuses on the portions of the law that would require the removal of books from classrooms and school libraries. The Iowa State Education Association, along with four bestselling authors—Laurie Halse Anderson, John Green, Malinda Lo, and Jodi Picoult—and five individuals from the state of Iowa are coplaintiffs in the suit.
That suit was filed just days after Lambda Legal and the ACLU of Iowa, together with a number of named plaintiffs in Iowa, filed the first suit to challenge SF 496, calling the law "a clear violation of public school students' First Amendment right to speak, read, and learn freely."
The suits seek a preliminary injunction blocking the law’s full implementation, and ultimately to have the law declared unconstitutional and permanently blocked. Locher said at the hearing that he planned to rule on whether to preliminarily enjoin the law before the end of 2023, as potential penalties for violating SF 496 begin on January 1.
The closely watched suit in Iowa is the latest legal facing new state laws that seek to ban books under the guise of "parental rights." In a July 29 opinion and order, judge Timothy Brooks preliminarily enjoined key provisions of Act 372, Arkansas's newly passed “harmful to minors” law, which would have exposed Arkansas librarians to criminal liability for making allegedly inappropriate books accessible to minors. And on August 31, a federal judge in Austin, Tex., preliminarily enjoined HB 900, that state’s controversial “book rating” law. Both decisions are currently being appealed.
This story has been updated with passages from the oral argument.
