Many laws restricting access to materials tend to focus on materials available in K-12 schools, or exposure of obscene materials to minors. The First Amendmentrights of minors, especially in school settings, are not as broad as those of adults. Some state laws extend to universities, and public libraries and some laws make it a criminal offense to provide access to materials deemed obscene or perverse.
Since 2021 PEN America has tracked the introduction of 185 education focused bills in 41 states. Nineteen have become law in 15 states. Many of these laws were written in a very similar manner because they were model legislation provided to legislators. Much of the news of state bans that occurred this summer passed by North Dakota since the state legislature was not meeting. The 2023 session started on January 3rd, 2023. It is unknown if a similarly restrictive bill will be introduced. There is some common language with these bills, the terms and phrases that are appearing in these bills include “divisive concept,” and teaching “certain concepts.”
Below is some background on the history of censorship in the United States:
North Dakota defines obscene as:
a. Taken as a whole, the average person, applying contemporary North Dakota standards, would find predominantly appeals to a prurient interest;
b. Depicts or describes in a patently offensive manner sexual conduct, whether normal or perverted; and
c. Taken as a whole, the reasonable person would find lacking in serious literary, artistic, political, or scientific value.
Whether material or a performance is obscene must be judged with reference to ordinary adults, unless it appears from the character of the material or the circumstances of its dissemination that the material or performance is designed for minors or other specially susceptible audience, in which case the material or performance must be judged with reference to that type of audience. Century Code 12.1-27.1-01.
Federal Laws
The primary law used to ban books was the Comstock Laws, the first of which was passed on March 3, 1873, as the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use. This prohibited the use of the U.S. Postal service to send obscene content including personal letters. Another law in 1909 prohibited the use of private carriers such as railroad from transporting these materials. Section 305 (a) of the Tariff Act of 1922 forbade the importation of any contraceptive information or means. Those found guilty of violating the act could be fined up to " $5,000, (Equivalent of $87,655.62 in 2022) or by imprisonment at hard labor for not more than ten years, or both."
Comstock laws were rendered moot by by Supreme Court decisions Griswold v. Connecticut (1965) and Eisenstadt v. Baird(1972).
Supreme Court
The First Amendment guarantees freedom of speech and press but the Supreme Court has established guidelines, or tests, for defining what constitutes protected and unprotected speech. Courts have ruled that obscenity and materials encouraging the overthrowing of the government is not protected.
Gitlow v. New York (1925), the Supreme Court has applied the First Amendment freedoms of speech and press to the states through the due process clause of the Fourteenth Amendment. The court ruled government could suppress publications advocating to “overthrow and destroy organized parliamentary government”
Roth v. United States (1957). Roth was charged with sending obscene materials through the mail. This case resulted in a series of criteria by which to judge a work based on contemporary community standards and if a work appealed to a “prurient interest in sex, and whether the material was utterly without redeeming social value.” Some obscenity charge against Roth, who had been publishing a magazine called American Aphrodite, were upheld.
Jacobellis v. Ohio (1964) Could the state of Ohio ban the showing of Louis Malle’s film The Lovers? Manager of an art theater, Nico Jacogellis was convicted of possessing and exhibiting an obscene film in 1964. He appealed and the Supreme Court found the work was not obscene, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”- Justice Potter Stewart
Memoirs v. Massachusetts (1966), Fanny Hill a novel by John Cleland and first published in 1748, was outlaws in Massachusetts in 1821. The publisher, Peter Holmes, was convicted for printing a lewd and obscene novel. The judge called him "a scandalous and evil disposed person." In 1963 Putnam republished the book with a different title leading to the arrest of a book seller and leading to Memoirs V. Massachusetts which found the book to not be obscene. A plurality of the Court, in an opinion by Justice Brennan, articulated a new three-part test:
“(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex;
(b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and
(c) the material is utterly without redeeming social value.”
Miller v. California (1973), Believing that the previous criteria was too ridged this court adopted a test that elaborated on the standards established in Roth v. United States. Miller defines obscenity by outlining three conditions for jurors to consider:
“(a) whether the ‘average person, applying contemporary community standards,’ would find that the work taken as a whole appeals to the prurient interest;
(b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by applicable state law; and
(c) whether the work taken as a whole lacks serious literary, artistic, political, or scientific value.”
The court ruled that obscene material was not protected by the First Amendment. The charges against Marvin Miller (aka King of Smut) were not overturned.