UPDATE 2: This bill was unanimously rejected by the legislative committee.

UPDATE 1: The originally-proposed bill has been amended to require explicit written permission for students to read texts deemed “sexually explicit,” rather than demanding an outright ban. However, NCAC remains seriously concerned. In addition to raising serious First Amendment concerns, the regulation will likely undermine the quality of education throughout Maine by stigmatizing canonical works of literature for the sole reason that they include sexual content.

The term “sexually explicit” is vague, over-inclusive, and potentially prejudicial. It could be used to describe classic works of literature such as Romeo and Juliet, The Diary of Anne Frank, Slaughterhouse Five, and Brave New World.

Leading educational associations oppose labeling books. The National Council of Teachers of English notes that “‘red flagging’ is a blatant form of censorship; the practice reduces complex literary works to a few isolated elements.” Similarly, the American Library Association has observed how labels are “prejudicial [and] designed to restrict access” to disfavored books.

Over-broad and prejudicial, labelling a book as sexually explicit is likely to generate parental requests that children be given alternative assignments in cases where parents would not otherwise do so. Teachers, concerned about such complaints, may simply decide not to include books with references to sex in the curriculum in the first place. Likewise, librarians may decide not to include certain books in their school libraries.

Labeling books as sexually explicit will also invite demands to label books with additional types of “objectionable” content such as violence, LGBT themes, drug use, and profanity. This will ultimately result in an overly expansive regime of labeling that will leave few books unaffected.

Schools are prohibited from discriminating against “the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

NCAC is urging the Maine Committee on Criminal Justice and Public Safety to oppose this bill. See our full letter to the committee below.

Original statement: Maine lawmaker Amy Arata’s recent proposal to remove public schools from the institutions exempted from the state’s obscenity statute is an attack on students’ intellectual freedom. An understandable aversion to exposing children to obscenity is often exploited by would-be censors to label a wide swath of materials they disagree with for personal reasons as inappropriate for all students.

The Supreme Court has long established that sexually explicit material with scientific, political, artistic or literary value is not obscene and is protected by the First Amendment (Miller v. California.) As applied to minors, Maine’s obscenity statute states that: “with respect to what is suitable material for minors, considered as a whole, [obscene material] appeals to the prurient interest…[and] considered as a whole, lacks serious literary, artistic, political or scientific value.”

This protection is at the core of intellectual freedom and has allowed for significant contributions of art, as well as the publication of novels previously suppressed by government officials with religious or other ideological agendas.  

Stripping public schools of this exemption does nothing to protect students. The materials in question have been selected precisely for their “serious literary, artistic, political or scientific value.” In fact, the new bill is likely to harm students by potentially exposing public schools to the threat of criminal prosecution and the burden to prove the value of the material they teach.

At minimum, this measure will burden schools with increased challenges to controversial yet educationally important materials. Worse, it will foster a chilling culture of fear, self-censorship and distrust in schools as teachers in risk-averse districts face job insecurity and the threat of prison.

However well-intentioned, Representative Arata’s bill is a disservice to Maine schoolchildren. Like any parent concerned about the educational suitability of their child’s assignments, we encourage Rep. Arata to talk to her child’s teacher and either trust their expert opinion or request an alternate book, rather than using her public powers to intimidate Maine’s public schools.

But wait, surely obscenity should be kept out of schools? A quick explainer:

No one is arguing for obscenity in schools. In practice, Maine’s obscenity statute simply allows schools to avoid the threat of criminal prosecution when someone feels that a book is not age-appropriate or exposes students to ideas they wish to keep hidden.

Every parent has a right to determine what is right for their child. However, exemption from the obscenity statute allows schools to ensure that the personal opinions of a few do not dictate a school’s curriculum. When a parent objects to their student reading a particular text, schools have policies in place that allow parents to challenge the book, request alternative assignments for their child and keep the process centered on the educational value of text.

What’s the harm in removing the exemption?
Opening up schools to the threat of criminal prosecution for the materials they teach creates a culture of fear and breeds self-censorship. It discourages teachers from selecting materials that challenge dominant ideologies, ask important questions or present valuable artistic, scientific, ethical and social ideas. Teachers already risk parental disapproval when they choose difficult texts, which can lead to real consequences for their careers. Adding the threat of criminal prosecution will only make teachers’ and administrators’ jobs even harder than they already are.

Students have a right to intellectual freedom.
Our students depend on their teachers and school administrators to allow them to explore ideas and learn to think critically. Preventing students from accessing challenging, difficult or uncomfortable materials, particularly in an educational setting, threatens their intellectual growth.

NCAC’s full letter to the Maine Committee on Criminal Justice and Public Safety. Click here for a full screen view: