Florida Group Urges State Attorney General to Prosecute Schools Over Reading Materials
It may soon be a crime to include certain types of materials in school curriculums here in Florida: In January, the Florida Citizens Alliance urged the state Attorney General to prosecute any schools that are making certain materials available to children; materials that it deems offensive because they include explicit sex scenes and information about gay marriage topics. The group contends that these materials violate state laws on obscenity and those stating that marriage can only occur between a man and a woman. The move follows similar actions taken by both the governor and the Department of Education, both of which have taken extreme measures to ensure that school districts comply with certain requirements.
Some of the publications targeted include The Bluest Eye by Toni Morrison, Dreaming in Cuban by Cristina Garcia, The Kite Runner by Khaled Hosseini, and Mommy, Mama and Me by Leslie Newman. However, as pointed out by those who oppose the ban, Florida’s laws on obscenity arguably do not apply, as they refer to a category of pornography, which is without “serious literary, artistic, political, or scientific value for minors.” As a result, the ability for the Alliance to actually convince the Attorney General to prosecute schools that teach any of these materials will presumably be difficult.
What Does & Does Not Enjoy First Amendment Protection
Still, if the group is successful in arguing that these materials represent obscenity, it is worth noting that although pornography itself typically enjoys First Amendment protection, that which is considered to be obscenity or child pornography does not. Courts have struggled to come up with exact definitions for obscenity, leaving things largely to judges’ discretion and this whole concept of “I know it when I see it.” In 1973, the Supreme Court settled on what is now known as the Miller test, finding that individuals cannot be convicted of obscenity unless the materials “depict patently offensive hard core sexual conduct.” The Court adopted a three-part test to determine this, which looks at whether:
- The average person would find that work appeals to the prurient interest (based on contemporary community standards);
- The work depicts or describes sexual conduct as defined by state law in a patently offensive way; and whether
- The work, as a whole, lacks serious literary, artistic, political, or scientific value.
State Prosecutions
Interestingly, it is the reference to “community standards” that has led to issues emerging when defendants are prosecuted in locales that have more restrictive standards. For example, in 1994, a comic book artist was convicted of obscenity in Florida, indicating that states continue to pursue obscenity prosecutions on a more conservative level than the federal government. Still, the Court has resisted efforts to extend the rationale outside of the hard-core sexual context to include for example hard-core violence, noting that it is not a part of obscenity as can be regulated pursuant to the Constitution.
Contact Our Florida Criminal Defense Attorney to Find Out More
If you have been accused of obscenity, contact our experienced West Palm Beach criminal attorney at the office of William Wallshein, P.A. to find out how we can help.
Resources:
mtsu.edu/first-amendment/article/1004/obscenity-and-pornography
oyez.org/cases/1971/70-73
tampabay.com/news/gradebook/2020/01/08/group-urges-florida-to-prosecute-schools-over-books-with-sex-lgbtq-references/
