DES MOINES, Iowa (CN) — The state of Iowa made the case before a federal appeals court Tuesday that it should be allowed to enforce a new law that would require sexually explicit books be removed from school libraries and teachers’ classroom collections.
Questions from the Eighth Circuit U.S. Court of Appeals judges hearing Tuesday’s arguments suggested Iowa may prevail in its argument that the statute is not unconstitutional on its face — but could face suits against individual schools that go too far in enforcing the books ban.
Iowa Governor Kim Reynolds signed Senate File 496 into law a year ago. The legislation requires public school districts to ban books and materials containing descriptions or depictions of “sex acts” from all Iowa school libraries except for certain religious texts, such as the Bible.
The state faces two federal lawsuits arguing that the statute violates the First Amendment rights of students and book publishers: One filed by Lambda Legal and the ACLU-Iowa, along with eight public school students ages nine to 17 who identify as LGBTQ+ and their parents, and another from Penguin Random House, joined by a parent, teachers and school librarians.
A federal judge in Des Moines halted enforcement of a ban on books referencing LGBTQ people or depicting sex acts in public schools last December, saying Iowa’s law is too broad.
On Tuesday, two judges on the three-judge panel of the St. Paul, Minnesota-based Eighth Circuit Court of Appeals appeared hostile to the plaintiffs’ challenge of Iowa’s law as facially unconstitutional rather than attacking it as applied on a case-by-case basis.
U.S. Circuit Judge James Loken, a George H.W. Bush appointee, repeatedly hammered the plaintiffs’ lawyers on why the case was filed and decided as a facial challenge to the constitutionality of the law.
“They’re not only inappropriate,” Loken said referring to facial challenges, “they have been employed sparingly and only as a last resort. There’s no last resort here.”
Iowa Solicitor General Eric Wessan, arguing for the federal court injunction to be reversed, agreed with Loken’s view and said there are routes for as-applied challenges to Iowa’s law.
Frederick Sperling of ArentFox Schiff in Chicago, representing the book publishers, disagreed.
“The question before this court is not whether some of the books the state defendants can point to may be constitutionally removed from school libraries,” he said. “They can, and they have been under existing law before the adoption of SF 496. The question that’s actually before this court is whether this overbroad and vague statute is constitutional, and it’s not.”
“Are you saying that books describing sexual perversion ... cannot be removed?” Loken asked.
“Absolutely not, Your Honor,” Sperling replied.
“OK, now, why do we have to do this facially?” Loken asked.
In response, Sperling said, “The state defendants were only able to point to a small number of books which they presented to this court to shock and outrage the court."
"In contrast," he continued, "you have an enormous number of books in the record — last week the Des Moines Register tallied over 3,400 books that have been removed from Iowa state libraries."
U.S. Circuit Judge Ralph Erickson, a Donald Trump appointee, picked up on the facial versus as-applied challenge.
“Shouldn’t those decisions be made by the local school board?” he asked.
Thomas Story, an attorney for the ACLU-Iowa representing the plaintiffs, said, "There is no way to divine the limiting constitutional sweep because of how it is written. So I can’t say how we’d get there.”
In response, Erickson said, “I think what’s going on here is you’ve got a school district in a panic. They’re applying it more broadly than the language of the statute itself provides. Those calls could have been specifically litigated.”
Erickson said certain books that have been removed, such as “1984,” “Animal Farm,” and “Portrait of Dorian Gray,” are "probably seen to have artistic merits such that application of this statute is inappropriate.”
The third judge on the panel was L. Steven Grasz, a Trump appointee.
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