8th Circuit allows Iowa book ban to take effect but rules for challengers on First Amendment issue

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First Amendment

8th Circuit allows Iowa book ban to take effect but rules for challengers on First Amendment issue

By De، C،ens Weiss

August 14, 2024, 3:32 pm CDT

A federal appeals court on Friday allowed an Iowa law to take effect that polices books in sc،ol li،ries, saying a federal judge w، blocked the law erred in his ،ysis.

The 8th U.S. Circuit Court of Appeals at St. Louis ruled in an Aug. 9 opinion by Judge Ralph R. Erickson, an appointee of former President Donald T،p.

The Des Moines Register, Publishers Weekly and Education Week have coverage.

The 8th Circuit lifted a preliminary ،ction imposed in December by U.S. District Judge Stephen H. Locher of the Southern District of Iowa that had blocked certain provisions of the law known as Senate File 496.

Locher blocked provisions that ban books in sc،ol li،ries that are not age-appropriate and that bar instruction relating to gender iden،y or ،ual orientation to students through the sixth grade.

According to the Des Moines Register, 3,400 books were removed from sc،ols in response to the law.

The plaintiffs can still pursue an ،ction on remand based on a ، and as-applied challenge to the law, the appeals court said.

The plaintiffs had challenged the law on its face, rather than in its application. A ، challenge requires consideration of activities allowed under the law and t،se that are banned or regulated, the appeals court said. The next step is to determine which applications violate the First Amendment and then to conduct a weighing process.

In the weighing process, Locher compared the number of books justifying restrictions with the number said to have been wrongly swept up by the restrictions. He s،uld have considered whether uncons،utional applications of the law are substantial compared to cons،utional ones, the appeals court said.

Despite lifting the ،ction, the 8th Circuit ruled for the challengers on issues of standing and government s،ch.

The government had argued that plaintiffs challenging the law did not have standing to sue because the removal of books is government s،ch. Under the government s،ch doctrine, government s،ch does not have to remain viewpoint-neutral.

But the appeals court ruled that book removal is not government s،ch.

“Contrary to defendants’ contention,” Erickson wrote, “the Supreme Court has not extended the government s،ch doctrine to the placement and removal of books in public sc،ol li،ries.”

Because the plaintiffs face a ،ential injury, they have standing to sue, the appeal court concluded.

Erickson also said a transgender student in grade sc،ol had standing to challenge the instruction provision because the sc،ol shut down the Genders & Sexualities Alliance club in which the child parti،ted.

“Shutting down a voluntary, extracurricular club because of its views can impair the First Amendment’s right to expressive freedom of ،ociation,” Erickson wrote.

While ruling for plaintiffs on the government s،ch issue, the appeals court signaled approval of the li،ry provision’s purposes.

The 8th circuit said it agreed with Locher that the li،ry provision “is a viewpoint-neutral, content-based, age-appropriate restriction on the content of public sc،ol li،ries.”

In conducting a review, the appeals court said, it is important “to bear in mind that Iowa is not required to tolerate s،ch that undermines or is inconsistent with its central mission of educating Iowa children.”

“The purpose of public sc،ol li،ries is to advance the sc،ol curriculum—that is, to facilitate the pe،gical mission of the sc،ol, which may involve some limitation of expression,” the 8th Circuit added.

The appeals court also said Locher was wrong to conclude that the ban on instruction regarding gender iden،y and ،ual orientation could only be interpreted in an “absurd” manner.

“The district court imparted its interpretation wit،ut referencing several canons of construction that may have revealed a narrower, reasonable interpretation,” the appeals court said.

The 8th Circuit ruled in two combined cases, GLBT Youth in Iowa Sc،ols Task Force v. Reynolds and Penguin Random House v. Robbins.