In Minnesota on Tuesday, a three-judge panel of the Eighth Circuit Court of Appeals in St. Paul heard oral arguments in the state of Iowa’s bid to overturn a December 2023 injunction blocking parts of its controversial book banning law, SF 496. And it was a rough ride for the plaintiffs.

In a 30-minute hearing, attorneys for the state argued that the injunction should be overturned because the plaintiffs (which include Penguin Random House, the ACLU, and a host of authors and advocates) lack proper standing, and, on the merits, because the state was within rights to enact measures to protect minors from sexually explicit content. Almost immediately, the court jumped in to express strong concerns over the appropriateness of the plaintiffs’ “facial challenge” to the law—a legal term that applies to a claim that a government policy is unconstitutional as written—with one justice harshly questioning the district court’s acceptance of the plaintiffs' facial challenge when, the judge said, the eighth circuit has “repeatedly” held that such challenges are “disfavored.”

The court suggested that the facial challenge of SF 496 was not proper, and that any legal challenges at this juncture should be “applied challenges” filed against individual school districts, over specific acts of book removal, rather than a broad action to strike down the law as unconstitutional. Notably, there are more than 300 school districts in the state. Another judge on the panel suggested that school districts in Iowa were likely in a “dead panic” over how to comply with the new law, and were overreacting—something that could be cured by winning a few facial challenges.

Arguing for plaintiff Penguin Random House, attorney Frederick J. Sperling insisted that the facial challenge was proper, noting that the Supreme Court has held that such challenges are warranted when “a substantial number” of a law’s provisions and applications are unconstitutional, as is the case with SF 496.

“The question before this court is not whether some of the books the state defendants can point to can be constitutionally removed from school libraries. They can, and they have been, under existing law before the adoption of SF 496,” Sperling told the court. “The question that's actually before this court is whether this overbroad and vague statute is constitutional, and it's not.”

Signed by Iowa governor Kim Reynolds in May 2023, 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—more than 3,400, according to a study by the Des Moines Register—including a disproportionate number of books that contain LGBTQ characters, historical figures, or themes.

The law prompted two separate legal challenges, heard together. Last November, Lambda Legal and the ACLU of Iowa, together with a number of named plaintiffs in Iowa, filed the first suit to challenge the law, calling it “a clear violation of public school students’ First Amendment right to speak, read, and learn freely.“ Days later, Penguin Random House and the Iowa State Education Association, along with bestselling authors Laurie Halse Anderson, John Green, Malinda Lo, and Jodi Picoult, also sued.

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The question that's actually before this court is whether this overbroad and vague statute is constitutional, and it's not.
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In an emphatic 49-page opinion and order issued late last December 29, federal judge Stephen Locher criticized the law as “incredibly broad.” He noted that the law had resulted in the improper removal of “of hundreds of books from school libraries, including, among others, nonfiction history books, classic works of fiction, Pulitzer Prize–winning contemporary novels, books that regularly appear on Advanced Placement exams, and even books designed to help students avoid being victimized by sexual assault.”

Specifically, Locher preliminarily enjoined two provisions. Regarding the law’s ban on books with any depictions of sex acts, Locher found the “sweeping restrictions” were “unlikely to satisfy the First Amendment under any standard of scrutiny.” In a rebuke, Locher said that he was “unable to locate a single case upholding the constitutionality of a school library restriction even remotely similar to Senate File 496,” adding that the broadly written law sought to impose “a puritanical ‘pall of orthodoxy’ over school libraries.”

Furthermore, Locher found that the law was a solution in search of a problem, noting that the state “presented no evidence that student access to books depicting sex acts was creating any significant problems in the school setting, much less to the degree that would give rise to a ‘substantial and reasonable governmental interest’ justifying across-the-board removal.” At most, Locher held, “the State Defendants presented evidence that some parents found the content of a small handful of books to be objectionable.”

Locher also found key provisions of the law “wildly overbroad,” thus rendering them “void for vagueness under the due process clause of the Fourteenth Amendment.” As written, he asserted, “the state will have unfettered discretion to decide when to enforce it and against whom, thus making it all but impossible for a reasonable person to know what will and will not lead to punishment.”

The appeals court did not give a time frame for when it would decide the case.

At a post-hearing news conference, the Des Moines Register reported that Christy Hickman, chief legal counsel for the Iowa State Education Association, said that having to sue individual school districts would burdensome. “If we had to start all over and start suing individual school districts, think about the court and school and public resources that go into that,” Hickman said. “I hope that is not where we end up.”