Missouri: Part 2 — SB 775

(This article is the second part of our look at Senate Bill 775 in Missouri. You can find the first part here.)

Missouri Senate Bill 775 went into effect on August 28, 2022. It is a lengthy bill coming in at over sixty pages. However, one small section, section 573.550, has sparked the removal of graphic novels across the Missouri school system. In part two of our series on Missouri, we will examine SB 775 and discover why it is problematic in terms of First Amendment rights and how it can be used to target protected classes.

What Does the Bill Say?

The full text of section 573.550:

 573.550.  Providing explicit sexual material to a student, offense of — penalty — definitions. — 1.  A person commits the offense of providing explicit sexual material to a student if such person is affiliated with a public or private elementary or secondary school in an official capacity and, knowing of its content and character, such person provides, assigns, supplies, distributes, loans, or coerces acceptance of or the approval of the providing of explicit sexual material to a student or possesses with the purpose of providing, assigning, supplying, distributing, loaning, or coercing acceptance of or the approval of the providing of explicit sexual material to a student.

 2.  The offense of providing explicit sexual material to a student is a class A misdemeanor.

3.  As used in this section, the following terms shall mean:

 (1)  “Explicit sexual material”, any pictorial, three-dimensional, or visual depiction, including any photography, film, video, picture, or computer-generated image, showing human masturbation, deviate sexual intercourse as defined in section 566.010, sexual intercourse, direct physical stimulation of genitals, sadomasochistic abuse, or emphasizing the depiction of postpubertal human genitals; provided, however, that works of art, when taken as a whole, that have serious artistic significance, or works of anthropological significance, or materials used in science courses, including but not limited to materials used in biology, anatomy, physiology, and sexual education classes shall not be deemed to be within the foregoing definition;

(2)  “Person affiliated with a public or private elementary or secondary school in an official capacity”, an administrator, teacher, librarian, media center personnel, substitute teacher, teacher’s assistant, student teacher, law enforcement officer, school board member, school bus driver, guidance counselor, coach, guest lecturer, guest speaker, or other nonschool employee who is invited to present information to students by a teacher, administrator, or other school employee.  Such term shall not include a student enrolled in the elementary or secondary school.

So, how can we simplify that? To break it down, if a “person affiliated with a school” distributes what is termed “explicit sexual material,” that is, any visual representation of certain nudity or sex except for “works of art” and materials for sexual education classes, they can be charged with a class A misdemeanor. Class A misdemeanors are the most severe form and are punishable with up to a year in jail and a $2,000 fine.

The third part of section 573.550 defines “person affiliated with a school” and “explicit sexual material.”

The “person affiliated” is an employee or person hired by the school.

“Explicit sexual material” is any depiction of sex. There is an exception for “works of art,” but there is an implication this relates to sculpture and painting, not sequential art.

What is the Issue?

How can there be an issue charging an employee with a misdemeanor for distributing explicit sexual material?

The main issue is that it criminalizes protected speech. In this case, graphic novels that would otherwise be protected. Essentially this law carves out a selection of graphic novels from protected speech, labels them explicit sexual material, and criminalizes them. In many cases, these graphic novels do not meet obscenity standards and would have no issue passing the three-tiered Miller Test.

SB 775 seems to rationalize this leap of criminalizing protected books by smashing two different legal ideas together. One is the Supreme Court ruling in Island Trees School District v. Pico, and the other is the enticement laws and child pornography (CP) laws used to protect children.

Pico, a landmark Supreme Court case, resulted in a plurality opinion; however, it has been repeatedly established that school administrators and boards have the authority to control the curriculum in public schools based on their judgment of whether the material is suitable. If deemed unsuitable, then they would have the power to remove it.

Plurality Opinion: A majority of the justices don’t agree on the reasoning behind a final decision in a case.

The influence of the enticement and CP laws comes into play when the unsuitable material is criminalized. SB 775 criminalizes the distribution of material to students. Similarly, with enticement laws distributing a book is a punishable offense if it is done to engage in sexual conduct with a minor. This is also known as grooming. CP laws justify the criminalization of photographs and other artwork of children in the interest of rightfully protecting them from abuse.

With this background in mind, we can see how a legislative curricular decision is fused with anti-grooming and CP laws to remove graphic novels that are not CP and are given as instructional material not to entice. One might then ask themselves, If there are already enticement laws and CP laws in place, why do we need a new law?

How is SB 775 being Used?

In part one of this series, we saw the effects of the bill. It has encouraged the removal of over one hundred books from school shelves in St. Louis and other districts across Missouri. Another factor to consider is what types of materials are being affected. We know there has been a rising trend to target books about LGBTQ+ experiences and they are often incorrectly accused of being “obscene” or “harmful to minors.” With this language floating around and the fear of prosecution in the air, it is probable graphic novels from and about the LGBTQ+ perspective will be disproportionately affected. Removal becomes an even greater issue constitutionally when you consider the books targeted are from and about people from a protected class. 

Protected Class: A group of people sharing a common trait who are legally protected from being discriminated against based on that trait.

The infringement of free speech and the patchwork nature of this bill leads me to believe it is in place solely to intimidate and control the material in the school system. It is unlikely legislators believe this will ever be tested in court. It diminishes our freedoms, cuts off access to materials for those who need it, and sows fear among school districts. I hope that by understanding these bills we will not fall into the trap of fear. We also need to demonstrate its flaws so it is not used as a template in other states.

CBLDF and its partners have been battling ongoing and organized attempts to censor comics and other books in schools and libraries. You can join the struggle by making a donation or reporting censorship today!