HR 7661 is an unconstitutional campaign-year ploy that even its sponsors don’t think will pass. Its real aim: to get free press as the defenders of children while making it look like our agenda is to sexualize kids in schools. Should we be playing their game?
What is HR 7661?
On February 24th, a small group of Republicans in the House of Representatives introduced House Bill 7661, the so-called Stop the Sexualization of Children Act. The title is an all too common rhetorical trick, signaling from the outset that this bill is less about solving real problems than scoring a cheap political point against anyone who dares to oppose it.
As for what the bill purports to do, here’s the core provision: HR 7661 would prohibit the use of federal funding to schools for “to provide or promote literature or other materials to, children under the age of 18 that includes sexually oriented material, including any program, activity, literature, or material that exposes such children to nude adults, individuals who are stripping, or lewd or lascivious dancing.”
Banned books – and dancing?
The first half of this bill, focusing on “literature or other materials,” turns the chilling effect into public policy. Schools from the elementary through high school level could choose to purchase books that include what HR 7661 defines as “sexually oriented material,” but they could not do so with federal funds. Because school administrators and the state officials who help administer federal funds do not want to jeopardize a vital source of financial support, the bill’s likely effect would be for schools to remove any material that risks falling within this category – a result we have already seen in Missouri, Utah, and other states that have taken action against books.
The references to programs, activities, stripping, and dancing might seem out of place in a book ban bill, but they too are in fact aimed at schools and school libraries. The target: drag queen story hours. The fact that this bill does not follow several failed state bills in including a direct reference to individuals who wear attire inconsistent with their “biological sex” or “gender recorded at birth” reflects an awareness of the Supreme Court’s ruling in Bostock and Harris Funeral Homes, in which job discrimination on the basis of alleged gender-nonconforming attire was found to violate Title VII of the Civil Rights Act.
This part of the bill does not, though, reflect a serious attempt at legislative drafting. For one thing, the proscription on “lewd or lascivious dancing” is unconstitutionally overbroad, capable of encompassing everything from a pole dance exercise class to a slow dance in a church basement. Equally problematic is the bill’s clumsy attempt to target drag queen story hours by prohibiting the portrayal of “nude adults.” Under the fundamental interpretive principle that the inclusion of one thing means the exclusion of others, nude *children* would arguably be permissible if not done in a manner prohibited under the bill’s definition of sexually oriented material.
What constitutes “sexually oriented material”?
To get any even clearer sense of what this bill is targeting, note the use of the word “oriented” rather than “explicit.” That’s deliberate – while the bill’s definition of “the phrase “sexually oriented material” includes material often associated with the word “explicit,” HR 7661 also expressly prohibits funding of *any* material that “involves gender dysphoria or transgenderism.”
In addition to this bar on funding books with a mere mention of transgender identity or individuals, the bill also defines the phrase to include sexually explicit material as defined in Sections 2256(2)(A) and (B) of Title 18 of the U.S Code. For our purposes it’s an interesting choice, because if you scroll down Section 2256 further you might also notice a passage expressly excluding “drawings” and “cartoons.” That’s because this is the very statutory provision encompassed by the Supreme Court’s landmark ruling in Ashcroft v. Free Speech Coalition, in which the Court discussed at length, with examples, why material with sexually oriented content accessible at schools can have constitutionally protected educational, literary, artistic, and scientific value.
In other words, the media being targeted by Section 2256 are not books actually being used in schools, but explicit videos and photos of actual children, photorealistic images indistinguishable from actual children, or images based on identifiable children. The only way that the government can prosecute other material the meets the definition of explicit in this Section is if it is obscene.
I am not going to delve into more detail into this aspect of the definition, because that is exactly what the bill’s proponents want us to do. It’s another rhetorical trick: they hope that we will dwell on explaining why certain books are not sexually explicit and why certain books with sexual material should not be removed. Why? Because even these defenses reinforce the association of banned books with “sex” and “sexually explicit,” which can render them intuitively taboo in ways that transcend rational argument.
Designed to fail
I’ve been involved in discussions about this legislation practically since the moment it was filed, and while I understand why it is being treated as the Big Bad of book bans, the reality is that few, if anyone, in the know on the Hill think this bill has a snowball’s chance of getting passed, let alone survive judicial scrutiny in the remote chance that it does.
Besides the cynical title and bad drafting, the specific provisions of the bill are themselves a tell that it was designed to fail. For example, if the sponsors really wanted to enact legislation that would garner significant support among their colleagues and judges, they would not have included a provision that literally defines exempt “classic works of literature” as books included in home school curricula sold by a Christian publisher. Conditioning the allocation of federal funds on whether a a book appears on a list of approved texts that “teach your kids to think Biblically about the world” is a clear violation of the First Amendment’s Establishment Clause. You don’t put a poison-pill provision such as this in your own bill if you have any expectation that it will become law.
The same is true of the unbounded prohibition on any reference to gender dysphoria or transgender identity. Setting aside the fact that this provision seeks to prohibit educational institutions from mentioning a medical condition and individuals whom the Supreme Court has found to be protected by federal civil rights law, this provision is a textbook content-based restriction that makes the bill vulnerable to a First Amendment free speech challenge, which, of course, the CBLDF and countless other First Amendment groups would file immediately were it ever to be enacted.
However, the odds of that ever happening are remote. Even if the bill had widespread Republican support – which, based on the smattering of sponsors as well as some inside info, my sense is that it does not – it has little chance of overcoming a Senate filibuster. The bill’s proponents could try to circumvent the filibuster by attaching it to a budget reconciliation bill that merely requires a majority vote, but allocation of funds based on non-budgetary content-based policy concerns make it highly vulnerable to a point of order invoking the Byrd rule.
Designed for fear
These and other fatal flaws are so egregious that they would scream self-sabotage if their real purpose were not self-evident. The bill’s sponsors are from districts where book bans and the Democrats-are-for-they/them-but-we’re-for-you anti-LGBTQ rhetoric were notable campaign issues. HB 7661 gives its supporters an opportunity to show that they’re still championing these issues – the more that opposition to the bill gets headlines, the more the bill’s target audience will see it as proof that kids are under siege.
And that’s the real point. As I’ve said repeatedly in book ban panels throughout the past several years, those who want graphic novels and manga removed from schools and libraries have realized that they do not need to win the battles they choose to start. They just need make people afraid. Fear is the goal: whether a bill becomes law or is doomed to be struck down in court is irrelevant. Fear gets them more votes; it gets books off the shelves; it keeps us from seeing what is really going on.
What next?
So, what’s the best response? If you want to contact your representative to express your opposition to the bill, you are certainly encouraged to do so. We’re opposed to it too, and behind the scenes we’ve been working to make sure that it will die.
That said, we should also be mindful that putting a spotlight on HR 7661 is exactly what the bill’s advocates want. There are a number of First Amendment advocates working on this issue who believe that giving this bill oxygen is keeping it alive. From that perspective, it’s Congress’s version of Gachnar the fear demon, and rather than keeping it in the headlines as the focus of our free speech campaigns, we should simply dismiss it as the transparent campaign gimmick that it is.
We’ll keep watching what happens with HR 7661 in Congress, and if the bill does defy the consensus odds to move forward in a way that risks passage, we’ll sound the alarm. In the meantime, there are bills, laws, court cases, arrests, and other direct attacks on graphic novels and manga in states across the U.S. that pose more imminent threats. We will continue to fight to protect free expression through the comic arts, and with your help, we will win.