Ninth Circuit revives challenge to Idaho library book censorship law

(CN) — An Idaho law restricting books deemed “harmful” to minors buckled under Ninth Circuit review, with the appeals court on Thursday instructing a lower court to reconsider blocking at least a portion of the law.

“At the very least, the ’threat of invoking legal sanctions’ against institutions like plaintiffs’ creates a ‘system of informal censorship,’ at most, the statute encourages formal censorship through the legal process,” U.S. Circuit Judge Milan Smith wrote on behalf of a three-judge panel. “The First Amendment does not tolerate either outcome.”

In July 2024, Idaho enacted a law requiring schools and libraries to pull books and other materials it deemed “harmful” to minors. House Bill 710 allows the government and citizens to sue any school or library that doesn’t move restricted material into designated “adult-only” sections within 60 days of receiving a complaint.

A group of private schools, privately funded libraries, parents and schoolchildren sued the state in federal court weeks after the law took effect, arguing the law infringes on their First Amendment rights.

Last year, the lower court declined to block the law and dismissed all the plaintiffs for lack of standing except for the Northwest Association of Independent Schools and two of its member schools. U.S. District Judge Amanda Brailsford, a Joe Biden appointee, found Idaho has “an interest in regulating minors’ access to obscene material.”

On review, a three-judge panel of the Ninth Circuit — which included U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama appointee, and U.S. Circuit Judge Holly Thomas, a Joe Biden appointee — sided with the education groups and families on one aspect of their challenge.

“Plaintiffs have shown that H.B. 710’s context clause likely renders the statute constitutionally overbroad,” Smith wrote.

Obscene material is generally unprotected by the First Amendment and can therefore be subject to content-based regulation.

The Supreme Court’s test to define obscene material requires considering whether the average person would find the work appeals to prurient interest, whether the work depicts sexual conduct in a patently offensive way and whether the work lacks serious literary, artistic, political or scientific value.

The schools argued the Idaho law lacked the “serious value” requirement of the test. The law restricts any description or depiction of “sexual conduct,” which includes “any act of … homosexuality.”

“We agree with plaintiffs that this provision is constitutionally deficient because of what plaintiffs term the ‘context clause,’” Smith wrote.

Broadly, the context clause requires considering a challenged work “in context,” which in this case would mean evaluating a work’s obscenity depending on the age of a minor.

The state argued a work can be reviewed in the context of its “time, place and circumstance.” But the Ninth Circuit pushed back.

“The context clause, construed as defendants propose, allows claimants — including the state — to flout that principle for works they find subjectively offensive,” Smith wrote. “It invites the reviewer’s subjective assessment of the time, place, and circumstance in which the work ‘is used’ in  determining whether the work has serious value for minors of particular ages.”

The rest of the law doesn’t temper the subjectivity, the Ninth Circuit noted. Rather, the enforcement provision, which allows a private right of action for violations, doubles down on the risks posed by the context clause.

“The statute does not purport to establish an objective standard by which ‘context’ can be measured,” Smith wrote, adding that it instead allows the state and individuals to decide. “We therefore conclude that the context clause exceeds constitutional scope.”

Under the context clause of the law, older minors are likely excluded from accessing nonobscene materials that are placed in an adult-only section, Smith concluded.

“Idaho may not make further distinctions between minors based on their ages where doing so impermissibly burdens plaintiffs’ constitutional rights,” Smith wrote. “In its current state, H.B. 710 does exactly that.”

Schools complying with the law are forced to either restrict their First Amendment right by relocating a book to a restricted age section or risk legal action.

“Defendants’ proposed narrowing construction of the context clause is belied by the requirements H.B. 710 places on schools and libraries to physically remove offending content to restricted ‘adult’ areas and by the statute’s enforcement mechanisms,” Smith wrote.

As such, the Ninth Circuit sent the case back to the lower court to consider an appropriate, narrow scope of a preliminary injunction, noting that fully blocking the law might not be the best route.

Neither the schools nor the state responded to a request for comment before press time.