The American Association of University Professors, the National Coalition Against Censorship, and the American Civil Liberties Union of Arizona oppose Senate Bill 1331, which, in its most recent iteration, would require state institutions of higher education to offer an alternative to any assignment that a student claims “depicts or describes sexual activity, sexual conduct, sexual excitement, sadomasochistic abuse or nudity in a patently offensive way.”
In our view, Senate Bill 1331 raises serious First Amendment problems. It targets “[s]exual expression which is indecent but not obscene and which is protected by the First Amendment.” Reno v. ACLU, 521 U.S. 844, 874 (1997). Material is only obscene if it meets the test set out in Miller v. California, 413 U.S. 15 (1973).
(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.
The third element, the “societal value” requirement, “allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value.” Reno, at 873. The very fact that something is assigned in a college class indicates that it likely has educational value and would not qualify as obscene.
SB 1331 creates a special legislative category for sexual expression which is presumptively protected by the First Amendment. A “content-based speech restriction” like this
can stand only if it satisfies strict scrutiny. If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest. If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.
United States v. Playboy Entertainment Group, 529 U.S. 803, 813 (2000) (internal citations omitted).
There is no compelling interest in protecting college students, who are overwhelmingly adult, from sexual content that is not obscene, even if some find it “offensive.” “The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74-75 (1983). Moreover, there is a less-restrictive alternative: the system already in place, by which students may request alternative assignments, and their requests are granted or denied based on neutral educational criteria.
Senate Bill 1331 is also a prescription for educational chaos, In the effort to address a very small problem – the occasional request for an alternative assignment that is not accommodated – you would sacrifice educational standards and academic freedom in state institutions, and involve state officials and university administrators in the day to day management of the academic program that is better managed by the faculty. The requirement that the material be “patently offensive” implies questions like, Offensive to whom? Who decides? How will the inevitable conflicts be resolved?
The bill would raise questions about the meaning and value of a degree from Arizona institutions. English students could graduate without exposure to classics like Romeo and Juliet, Lady Chatterley’s Lover, and The Color Purple; biology and health science majors could avoid studying reproductive biology, sexual behavior, and treatment of sexually-transmitted diseases; art history students could refuse to study classic nudes.
Curricular decisions made by professionals in a field reflect their best judgment about what a student needs to know to qualify for a degree in a given subject, or to receive a well-rounded education. This bill would dispense with those professional judgments, and essentially allow students to avoid educational content they dislike. We strongly urge Arizona lawmakers to reject this effort to dilute the value and quality of education in Arizona.
» "College Reading Opt-Out Killed" in the Arizona Daily Star, 3/10/2006