Niki Kelly: Bar to ban books for obscenity is high — as it should be


When lawmakers recently heard an amendment to tackle allegedly harmful or obscene books, one member had a list of objectionable titles at his desk that he refused to read out publicly.

He shared it with others, noting the legislature has to step in because the system isn’t working.

But what does it mean to say the system isn’t working?

After listening to debate on this measure for at least three years, the answer seems to be if a parent objects to a book and the library or school administration disagrees, then the system isn’t working.

I vehemently disagree. There is a process in schools and libraries to review books. There are state statutes that define obscenity and matters harmful to minors. Those reviews are occurring, but the reality is these books don’t rise to the level of those laws.

Banning a book should be a high bar in a free society. Just because a few parents find a book to be inappropriate — a highly subjective term — doesn’t mean the book shouldn’t be available to those who are fine with the book.

Now back to that list the House rep had on his desk. It was titled “Porn Books.”

Looking deeper

I’ll take the first book on the list, “Nineteen Minutes” by Jodi Picoult. The book is about bullying and a school shooting. It is at times uncomfortable and devastating — I have read the entire book — but that’s not why the book is on the list.

It’s because of a graphic sex scene — bordering on rape — on page 313.

That’s right. The reason this book has been banned elsewhere around the United States and is being used in Indiana’s discussion is because of one page out of more than 400.

And now, it’s time to introduce you to the actual definitions in law that matter.

A book is obscene if:

-The average person, applying contemporary community standards, finds that the dominant theme of the matter or performance, taken as a whole, appeals to the prurient interest in sex

-The matter or performance depicts or describes, in a patently offensive way, sexual conduct

-The matter or performance, taken as a whole, lacks serious literary, artistic, political or scientific value

A book is harmful to a minor if:

-It describes or represents, in any form, nudity, sexual conduct, sexual excitement or sado-masochistic abuse

-Considered as a whole, it appeals to the prurient interest in sex of minors

-It is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors

-Considered as a whole, it lacks serious literary, artistic, political or scientific value for minors

Let’s look at a key phrase in both of these laws — “taken as a whole” and “considered as a whole.”

Banning a book has to be about the whole book, not a few objectionable pages. And even those passages that some are referencing don’t rise to this high bar for criminal prosecution.

The law also requires the book to have no “serious literary, artistic, political or scientific value.” I can tell you for sure that “Nineteen Minutes” has all of that.

A different problem

I actually think the parents demanding change have more of a problem with that legal definition than the process to review books. The fact is those definitions are hard to reach, purposefully. Because taking something away from the general public is a big deal.

It is absolutely appropriate for a parent to object to a book as a classroom assignment and ask for an alternate task for their child. School libraries can note specific books a student isn’t allowed to check out.

All of those options protect the rights of parents on one side without infringing on the rights of others.

The future of any harmful books legislation is unclear as the legislature slides into the remaining days of the session. The vehicles have died, but language has cleared one chamber, meaning it could be put elsewhere.

My suggestion is to better define the actual problem. Inappropriate is a far cry from obscene and harmful.

Niki Kelly is editor-in-chief of, where this commentary first appeared. She has covered Indiana politics and the Indiana Statehouse since 1999 for publications, including the Fort Wayne Journal Gazette. Send comments to [email protected].

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