A Jackson County Circuit Court judge struck down a state law criminalizing school employees for supplying “sexually explicit material” to students, ruling it unconstitutionally vague and overbroad in a five-page decision Monday.
“This is a real victory for all library professionals who are trained to select age-appropriate, developmentally appropriate material for students in both public and private schools,” Gillian Wilcox, the ACLU of Missouri’s director of litigation, told The Independent. “It is a real insult to their training and professionalism for the government to think that it knows better what books belong in those schools, and it’s an insult to parents as well.”
The now-void law, passed by Missouri lawmakers in 2022, expanded the state’s regulations on pornography to create the offense of providing explicit sexual material to a student. It applied only to those “affiliated with a public or private elementary or secondary school in an official capacity.”
The law is part of a larger trend placing higher scrutiny on what books are offered by libraries and schools. In Missouri, efforts earlier this year to place new restrictions on digital libraries and expand the officials who could face prosecution were debated but did not pass.
“The ACLU has been seeing an increase in the last at least five years in book removal from school libraries and public libraries for a variety of reasons,” Wilcox said. “And it all culminated in this law being passed.”
The Missouri Association of School Librarians and Missouri Library Association, represented by Stinson LLP and the ACLU of Missouri, challenged the law in 2023 after “hundreds” of titles were removed from shelves.
“Librarians and school professionals statewide now assess prospective and existing titles in their collections based on fear, rather than expertise,” their attorneys wrote in July. “They have been reluctant, or have refused, to add new art, books, or even digital access to such materials that contain diverse or marginalized content or viewpoints, lest some unknown government official determine the work contains prohibited ‘explicit sexual material.’”
The state has long prohibited people from giving pornographic material to minors. The decades-old law uses a different definition of pornography, one that has been held up in courts as only prohibiting speech unprotected by the First Amendment.
But the 2022 law extends beyond that precedent, plaintiffs attorneys argued, impeding free speech rights.
The case was originally filed against county prosecutors but is currently being defended by the Missouri Attorney General’s Office.
Deputy Solicitor General Samuel Freedlund labeled librarians’ arguments as insufficient, since they hadn’t presented evidence of the law being enforced.
“Absent evidence of any instance of any defendant actually enforcing the law against any of plaintiffs’ members, plaintiffs can only raise hypothetical enforcement examples in their vagueness challenge — an approach Missouri courts have consistently rejected as facially insufficient to raise a vagueness challenge,” he wrote.
Circuit Court Judge J. Dale Youngs offered little insight into the basis of his decision in the brief ruling, though he acknowledged in a footnote that with his retirement coming at the end of the month, “time is a factor.”
“Moreover, the court recognizes — now more than ever — its status as a ‘way station’ to the Supreme Court of Missouri,” Youngs wrote. “What the parties here need is a decision that can be fully and finally considered by an appellate court that — consistent with its standard of review — gives no deference to what this court thinks or why.”
Wilcox said the judge’s decision, while brief, shows large agreement with plaintiffs’ arguments.
“By granting our motion on all counts and denying the state, the court did agree with all of our legal arguments and found that there were undisputed facts supporting those arguments,” she said.
In the months leading up to summary judgment, “thousands of pages of documents were exchanged” in discovery.
The attorney general’s office did not respond to a request for comment.
This story was originally published by the Missouri Independent.
