When the Censors go to Court

Banned and Challenged Books, LGBTQIA+

By: guest contributor Richard Price

In 2006, the New York Times described Fun Home as “a pioneering work, pushing two genres (comics and memoir) in multiple new directions, with panels that combine the detail and technical proficiency of R. Crumb with a seriousness, emotional complexity and innovation completely its own.” The critical praise and awards summarized on Wikipedia testifies to the widespread acclaim that Alison Bechdel won for her graphic memoir. Controversy, unfortunately, was inevitable as Bechdel combined multiple things that challengers dislike: graphic images, frank discussion of sexuality, and queer identity.

Most of the controversy, in my experience at least, has been at the university level. This changed when the Watchung Hills Regional High School adopted a new curriculum in 2017; it sought to expand its diversity and inclusion mission and part of this was the adoption of Fun Home for the 12th grade English curriculum. In justifying this choice, Superintendent Elizabeth Jewett noted that the book presents “characters who themselves engage with literature on a particularly sophisticated level” and use that education “for the purpose of enriching self-awareness and self-understanding.” Jewett admitted that some graphic images are used in the book but stressed that the school “endeavor[s] to create readers who can analyze and evaluate an image—whether presented visually or rendered in prose—and who can view this image in context.” Context, sadly, has never mattered much to book challengers.

As discussed by CBLDF, some parents and residents objected. In a slew of emails, the challengers raised many objections that are common to challenges of queer lit specifically. Unlike the children who are taught to interpret works in context, challengers focus on the few panels that were described as “pornography.” Some challengers complained that similar images would be filtered out of the school’s computer if children attempted to access them. As Emily Knox demonstrated in her wonderful Book Banning in 21st-Century America, challengers adopt a commonsense approach to reading where only one meaning is possible. As one Fun Home challenger wrote, “[a]nyone reviewing the book within the first 10 minute, clearly realizes that this is not age appropriate for high school aged children.” Challengers simply cannot conceive of reasonable disagreement in interpretation of a contested work. They assume that they represent the community, a community that adheres to a single moral understanding. The challengers were adamant here that an opt-out and alternative assignment, which the school had always offered, was insufficient. Some complained that this would subject objecting children to stigma and ostracization from their peers, marking them as different.

Watchung Hills rejected the argument for removal of Fun Home but did compromise. Instead of removing Fun Home, it expanded the English curriculum. Now students would choose one book out of three: Fun Home, We are Okay by Nina LaCour, and Speak No Evil by Uodinma Iweala. While the documentation I have to date does not address this clearly, it is easy to speculate on the rationale for this change. The two additional books adhere to Fun Home’s focus on identity in complex and challenging family dynamics but do so through prose rather than graphic images. Thus, the challengers’ objections are completely met: students would now be able to avoid images they found offensive without having to leave the classroom. To most this would be a win-win.

Inevitably, this compromise was insufficient for some of the challengers. On 2 May 2019, a group led by one of the students from last year and his father sued the school (and various administrators and educators). View the full complaint and updates.

The student asserted that he “suffered damages as a result of [being] required to read [Fun Home] including emotional, psychological and other damages.”

Parents have attempted similar suits in the past. In 2006, parents sued a Massachusetts school when it refused to prevent their children access to depictions of queer people, an argument that the courts rejected holding that parents have no right to dictate public school curriculum. There, the parents grounded their objections in a claim of parental and religious freedom rights. In New Jersey, however, the plaintiffs have instead attempted to deploy the state’s criminal law.

Plaintiffs rely on New Jersey’s “Obscenity for Persons Under 18” statute. The law provides that “a person who knowingly sells, distributes, rents, or exhibits to a person under 18 years of age obscene material is guilty of a crime of the third degree.” The key issue is what counts as obscene. Here, the plaintiff’s complaint misrepresents the language. The statute defines obscene material as

any description, narrative account, display, depiction of a specified anatomical area or specified sexual activity contained in, or consisting of, a picture or other representation, publication, sound recording, live performance or film, which by means of posing, composition, format or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the area or activity.

The complaint omits the underlined language. As the school board president noted in his statement, this is a problem because plaintiffs ignored the key issue they would have to prove if this was a viable claim: that the material arouses a prurient interest in sex. The plaintiffs seem to assume that any depiction of nudity or sexual activity is inherently obscene because it involves certain “anatomical area[s]” or “sexual activity.” This argument, however, was abandoned in 1957 when the Supreme Court declared that “sex and obscenity are not synonymous.” This is why the statute continues to the prurient requirement. Otherwise, a great deal of art would be punishable obscenity. Similarly, any type of competent sex education would be felonious (my guess is the plaintiffs here would be happy with that result).

No competent attorney would file such a complaint if the goal was to win. Litigation, however, is not always about winning. It may be about publicity, attempting to keep pressure on the school district to change its curriculum. That publicity, however, seems to be more likely designed to intimidate. Defending against a lawsuit, even a frivolous one, takes time and resources that schools rarely have in abundance. As such, the knowledge that lawsuits were attempted may lead other school districts to shy away from the controversy. And two high schools near Watchung Hills did recently restrict access to Fun Home likely due to the publicity around this broader challenge. Challengers hope to apply their broad definition of obscenity and purge any “controversial” literature they can. This suit is just another step along that path. Watchung Hills Regional High School adopted an innovative and inclusive curriculum, compromised reasonably to deal with all of the objections, and it should be a model for other schools in refusing to hide queer voices. And there is no doubt that erasing queer representation in public spheres is the ultimate goal of this type of book challenger.

Richard Price is Associate Professor of Political Science at Weber State University. In addition to teaching various courses on law and courts, Richard recently began a study of book challenges in libraries and schools with an aim to understanding how challengers construct their vision of community and governmental power to maintain said community. Pieces of this research appear occasionally at https://adventuresincensorship.com and on Twitter @AdvInCensorship.

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