By Chase Lindemann[1]

 

On March 1, 2022, Oklahoma State Senator Rob Standridge introduced Senate Bill 1142 to the Oklahoma Senate Floor.^[2] SB 1142’s title states that this bill is an act “prohibiting certain schools and school libraries from maintaining or promoting certain books.”^[3] If a parent believes that there is a violation of SB 1142, they can submit a written request for removal of the book(s) they believe are violating this law.^[4] Within thirty days of receiving this request, the school administrator must either remove the book or provide a statement explaining their reason(s) for denying the request.^[5] Should the request be denied, the parent or legal guardian can sue the school and may be entitled to an injunction removing the book.^[6]

 

The books prohibited by SB 1142 are those “that make as their primary subjects the study of sex, sexual lifestyles or sexual activities, or books that are of a controversial nature that a reasonable parent or legal guardian would want to know of or approve of prior to their child being exposed to it.”^[7] During the committee hearing discussing the bill, Sen. Standridge explained that the bill was created to prevent public school libraries from displaying books that discuss sex; for Sen. Standridge, classrooms and sex education were appropriate for introducing students to the topics discussed in the prohibited books.^[8] Regardless of Sen. Standridge’s intent, this bill has the potential to do far more, and far worse, than what the bill’s author expects it will do. This blog post will examine how SB 1142 may be an unconstitutional restriction on the First Amendment’s freedom of speech.

 

The Dangers of SB 1142

Sen. Standridge intends this bill to prevent libraries from being the gatekeeper of books discussing sex, and instead give this power to parents. However, the language of the current bill and that of prior versions showcase how the proposed legislation does and can go beyond the author’s intent.  A previous version of the bill was more explicit in what it wanted to prohibit: “books that make as their primary subject the study of sex, sexual preferences, sexual activity, sexual perversion, sex-based classifications, sexual identity, or gender identity.”^[9] Even though this language has been removed, a parent could argue that books discussing “sexual lifestyles” include books discussing gender identity or sexual preferences.

 

A parent need not rely on that argument either: the bill allows the prohibition of books of a “controversial nature,” which opens Pandora’s Box to things parents disagree with. The author of the bill was aware of this: an amendment was proposed to change “controversial nature” to “predominantly sexual” because the author thought “controversial nature” “opened things up too much,” but this proposal was denied.^[10]

 

Finally, the bill’s language broadens its scope beyond public school libraries. By expressly mentioning “schools” in addition to school libraries, the bill suggests that a parent could target books inside a classroom. The potentially devastating consequences of this bill makes its constitutionality all the more important.

 

Content-Based Restriction

Under the First Amendment, the government cannot restrict speech because of the speech’s message, ideas, subject matter, or content.^[11] When the government passes a law restricting speech based on its content, these “content-based” restrictions are presumed to be unconstitutional and can only be justified if the government shows that the restrictions are narrowly tailored to serve a compelling state interest.^[12] Since SB 1142 is a government regulation that restricts speech based on its content, Oklahoma would need to show either that the bill (1) restricts speech that is not protected by the First Amendment, or (2) is narrowly tailored to serve a compelling state interest.

 

SB 1142 prohibits protected speech.

The Supreme Court has noted that there are certain categories of unprotected speech: obscenity, defamation, fraud, incitement, fighting words, true threats, speech integral to criminal conduct, and child pornography.^[13] The only conceivable category that books on “sex, sexual lifestyles, or sexual activities” could fall under is obscenity. In Miller v. California, the Supreme Court outlined the three-prong test for determining whether speech is obscene:

 

(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 the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.^[14]

 

There are certainly some books prohibited by SB 1142 that would meet this definition, but it cannot seriously be contested that any book whose primary subject is the study of sex, sexual lifestyles or sexual activities meet all three criteria. Therefore, SB 1142 could not be upheld by invoking the obscenity exception to First Amendment protections.

 

SB 1142 is not narrowly tailored to serve a compelling state interest.

Because SB 1142 prohibits protected speech, Oklahoma would need to argue that it has a compelling state interest in preventing children from being exposed to the subject matter of the books prohibited by the bill. One such interest could be the government’s interest in “protecting the physical and psychological well-being of minors,” which has been “extend[ed] to shielding minors from the influence of literature that is not obscene by adult standards.”^[15] Accepting that SB 1142’s prohibition does further a compelling interest, it would likely not be narrowly tailored.

 

“[T]he requirement of narrow tailoring is satisfied ‘so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’”^[16] In other words, the “[g]overnment may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”^[17] Oklahoma would need to show that a “substantial portion” of SB 1142’s ban does not fall on books that the bill is not intended to address.^[18] SB 1142 suppresses a large quantity of speech that “does not cause the evil” SB 1142 seeks to eliminate, and is certainly broader than necessary to achieve any compelling government interest Oklahoma may have. As such, SB 1142 cannot be said to be narrowly tailored to further a compelling government interest.

 

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[1] J.D. Candidate, University of Minnesota Law School Class of 2022, JLI Vol. 40 Managing Editor.

^[2] See S.B. 1142, 58th Leg., 2d Reg. Sess. (Okla. 2022) (as revised by the Committee on Education), http://webserver1.lsb.state.ok.us/cf_pdf/2021-22%20FLR/SFLR/SB1142%20SFLR.PDF.

^[3] Id. at 1.

^[4] Id. at 2.

^[5] Id.

^[6] Id.

^[7] Id. at 1.

^[8] Hearing on S.B. 1142 Before the S. Educ. Comm., 58th Leg., 2d Reg. Sess., at 1:46:47–1:47:46 (Mar. 1, 2022) (statement of bill author Sen. Rob Standridge), https://sg002-live.sliq.net/00282-vod/_definst_/2022/03/Education_2022-03-01-10.00.22_52730_17.mp4/playlist.m3u.

^[9] S.B. 1142, 58th Leg., 2d Reg. Sess. (Okla. 2022) (as originally introduced), http://webserver1.lsb.state.ok.us/cf_pdf/2021-22%20INT/SB/SB1142%20INT.PDF.

^[10] Hearing on S.B. 1142 Before the S. Educ. Comm., 58th Leg., 2d Reg. Sess., at 1:46:00–1:46:16 (Mar. 1, 2022) (statement of bill author Sen. Rob Standridge), https://sg002-live.sliq.net/00282-vod/_definst_/2022/03/Education_2022-03-01-10.00.22_52730_17.mp4/playlist.m3u..

^[11] Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

^[12] Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

^[13] Victoria L. Killion, Cong. Rsch. Serv., The First Amendment: Categories of Speech 2 (2019), https://sgp.fas.org/crs/misc/IF11072.pdf.

^[14] Miller v. California, 413 U.S. 15, 24 (1973).

^[15] Sable Commc’ns of Cal. v. FCC, 492 U.S. 115, 126 (1989).

^[16] Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).

^[17] Id.

^[18] Id.