Book banning is as American as cherry pie. Censorship has a rich and robust history in the United States. From southern states banning David Walker’s incendiary 1829 pamphlet Appeal to the Colored Citizens of the World, which called for slave revolts, to the endless 1990s attempts to remove Heather Has Two Mommies in an effort to keep young people ignorant about homosexuality.
The book banners are always wrong, but in some ways, they’re more crudely honest than civil libertarian ideas that imagine the public sphere as a refined “marketplace of ideas”; what those seeking to suppress such books as Toni Morrison’s 1987 masterpiece Beloved correctly understand is that the public sphere is, and has always been, a bare-knuckle brawl. They may want to destroy the radical imagination that such texts cultivate, but they come prepared to fight.
Lately, however, conservative parents committed to banning books from school libraries have escalated the terms of these debates, going beyond any semblance of healthy democratic contestation in an effort to weaponize obscenity law and bring the crushing weight of the state down on school officials, threatened with potential criminal charges. This has been happening nationally, from Iowa to North Carolina to Texas, and it’s happening here in New Jersey as well, in the North Hunterdon controversies that have targeted almost exclusively LGBTQ literature.
As a scholar who has written a book and many articles on the history of obscenity law, I can assert with absolute certainty that such targeted books in North Hunterdon as Jonathan Evison’s Lawn Boy and Maia Kobabe’s Gender Queer categorically do not meet the legal standards for obscenity. They don’t even come close.
The prevailing standards set by the Supreme Court in the 1973 Miller v. California case defined obscenity as material, which “taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have a serious literary, artistic, political, or scientific value.” Since 1973, this has almost exclusively been understood as visual hardcore pornography. It’s nearly impossible for a book to be obscene.
The turn toward claims of criminal obscenity by such groups as Moms for Liberty (which grew out of the anti-mask-mandate right) and the North Hunterdon parents invokes an important history that also needs to be understood: the use of obscenity charges to censor LGBTQ expression.
Obscenity law has never been a simple tool to police sexual explicitness. It has always been bound to ideological beliefs about sexuality, which is why the 1873 Comstock Act, which effectively codified obscenity at the federal level, included not only pornographic texts but also “articles of immoral use” — that is, contraceptives and materials related to abortion. The law represented a clear effort to legally chain sex to procreation.