Todd Pettys, a professor at The University of Iowa’s College of Law, shared his thoughts on Twitter regarding the book “The Absolutely True Diary of a Part-Time Indian” and whether Iowa’s obscenity laws actually forbid it from Iowa schools.
“In the 1800s and early 1900s, books could be banned as obscene even if they contained only isolated passages depicting sex in ways that some found offensive,” Pettys wrote. “Many thought that James Joyce’s “Ulysses” was obscene even though it’s a ton of work for anyone seeking a quick thrill.”
Courts, however, said books do not lose their First Amendment protection due to isolated passages that depict sex. Pettys cited Roth v. United States, a 1957 decision by the Supreme Court. Pettys said following the 1973 decision in Miller v. California, a book is obscene only if it strums readers’ sexual chords “when read as a whole” rather than just when reading isolated passages.
“Even if a book is sexually stimulating, the Miller Court said the First Amendment shields the book from anti-obscenity laws if it has serious literary or artistic value,” Pettys wrote.
Those requirements, as well as other constitutional requirements, are reflected in Iowa’s definition of obscenity in Chapter 728 of the Iowa Code.
Pettys maintains that kids will not find “much” racy stuff.
“One short passage where the narrator says he masturbates (and that so do you), one where a friend says books and libraries give him a ‘metaphorical boner,’ and one where a teacher’s innocent hug gives the narrator an erection,” Pettys wrote. “As for serious literary value, readers (and jurors) can make their own judgments. But for what it’s worth, the book won the National Book Award for Young People’s Literature, and it got great reviews from critics.”
Pettys said the First Amendment does not require teachers to use the book. And, he added, if K-12 schools tell teachers not to assign it, those teachers cannot disobey.
“But the book isn’t criminally ‘obscene’ in the statutory or constitutional sense of the word,” Pettys said.
