Saturday, February 24, 2007

Howell controversey - Is there a case?

Update from Last Howell update

Is there a case of prosecution? From what I have seen, looking at it as objectively as possible, probably not. A surprise to me is that there is little to no precident that I have found. I MAY find some if I did more digging through my Westlaw access, but I don't have ten hours of free time to devote to this.

There are two series of statutes which may fit.

750.142 and 750.143: are one section of statutes

750.142 Furnishing obscene publications or criminal news to minors.

Sec. 142.

A person who sells, gives away or in any way furnishes to a person under the age of 18 years a book, pamphlet, or other printed paper or other thing, containing obscene language, or obscene prints, pictures, figures or descriptions tending to corrupt the morals of youth, or any newspapers, pamphlets or other printed paper devoted to the publication of criminal news, police reports, or criminal deeds, and a person who shall in any manner hire, use or employ a person under the age of 18 years to sell, give away, or in any manner distribute such books, pamphlets or printed papers, and any person having the care, custody or control of a person under the age of 18 years, who permits him or her to engage in any such employment, shall be guilty of a misdemeanor.

History: 1931, Act 328, Eff. Sept. 18, 1931 ;-- CL 1948, 750.142 ;-- Am. 1972, Act 14, Imd. Eff. Feb. 19, 1972

750.143 Children; exhibition of obscene matter.

Sec. 143.

Exhibition of obscene matter within view of children—Any person who shall exhibit upon any public street or highway, or in any other place within the view of children passing on any public street or highway, any book, pamphlet or other printed paper or thing containing obscene language or obscene prints, figures, or descriptions, tending to the corruption of the morals of youth, or any newspapers, pamphlets, or other printed paper or thing devoted to the publication of criminal news, police reports or criminal deeds, shall on conviction thereof be guilty of a misdemeanor.

History: 1931, Act 328, Eff. Sept. 18, 1931 ;-- CL 1948, 750.143

There has only been one case I found that covered those two statutes. Butler v. State of Mich. (352 U.S. 380), (77 S.Ct. 524) This was a Supreme Court Case from Feb 25, 1957. Due to copyrights, I can not reprint the whole decision unless it is found in the public record. An individual was convicted under this statute (sold a book to a cop, not a kid) and the conviction was overturned on 14th Amendment and Due Process grounds. It's not an exact precidence, but I suspect that charges under these two statutes would be dismissed based on the only precidence so far - the Butler decision.


The other statute section refers to 722.675.

However, Section 5 of 722.675 has an exception spelled out in 722.676. The question is this. Does it comply with the the revised school code and is part of a "school program permitted by law?"

While there is precidence of 722.675, not that I have found related to school programs. Cyberspace Communications, Inc. v. Engler however declared the internet and cyberspace portion (1999 amendments) of that statute unconstitutional on 1st Amendment Grounds.


Disclaimer - I'm not yet an attorney, nor did I spend the night at a Holiday Inn Express. This is not legal advice. However, based on what I have read by statute and precident, as well as common law principles of vagueness in how stautes can be read, I don't expect to see a final conviction against school officials for these books. That said, I'm not the prosecutor, nor a judge or juror. Those three elements make the final decisions on this matter unless there's a change in statute.


Labrador Blue Dog said...


A little historical context is necessary first:

MCL 722.676 was passed in 1978. When (b) was inserted, it was not part of the original bill. It was added in conference, after it was discussed that under the way the statute was written, it would be possible that it could be interpreted that anything discussed in a sex education class could be cosidered illegal under this statute.

Just two years before MCL 722.676 was passed, the state's sex ed process was set up. See Public Act 451 of 1976, under MCL 380.1507. This was set up to provide an extensive sex ed review panel, including at least 1/2 parents on the board, to review and approve the curriculm prior to it being taught.

That is what the "exemption" for teachers was for. It was to keep them out of trouble for teaching materials which the offical "sex ed" panel had approved. That "exemption" is the one that exempts from prosecution for sexually explicit materials.

Read carefully, now, the wording of the exemption:

(b) A teacher or administrator at a public or private elementary or secondary school that complies with the revised school code, 1976 PA 451, MCL 380.1 to 380.1852, and who disseminates sexually explicit matter to a student as part of a school program permitted by law.

As you can see, the exemption was intended to cover the sex ed material.

Now we have a small problem.

The material being taught here is NOT part of the sex ed material reviewed by the official sex ed board. And teachers have re-interpreted the exemption to mean that they can teach anything and not be prosecuted.

The word "pornography" is not applicable in this case, and it's use is not proper in the legal sense. I think Vicki is not correct in calling it that, but I DO think it is questionalable enough to meet the bar in MCL 722.680. of it requiring a legal opinion on the part of the county prosector prior to it's being distributed.

That is why Vicki asked the county prosecutor to review the material, under 722.680.

That is a legal, legitimate request, and was done BEFORE the board voted to adopt the material.

I will be interested to hear what the prosecutor says- although I believe that he probably will decide that his best action will be....not to decide.

Just my opinion.

To your point- about the 1st Amendment-

While it is true that Americans enjoy a great deal of rights under the 1st Amendment- I would point out that minors do not have all the same rights as adults. In some cases that is a good thing. For example, under the Second Amendment, Americans have a right to bear arms. Minors don't have the exact same rights. I don't know of a Supreme Court case where that has been challenged. You and I both strongly support the 2nd Amendment. But I do support laws that restrict handgun ownership to minors. I believe that gun ownership is a right of adults, but I do not believe the right to bear arms extends to minors. Do you?

And the Supreme Court has said minors do have rights in some instances, but not so in other before.


The difference between that case and the Howell case, is that PICO's first amendment hinged on the books being in the library, and NOT as required reading for the class. Indeed, the Court went out of it's way to highlight that schools DO have additional obligations to protect minors when the material is required reading in class, as opposed to simply a book sitting on a bookshelf in the library.

Read the PICO case, and then think about the comparisons here.

Labrador Blue Dog said...

And Dan- about your citing Butler vs. Michigan

Not even close. That was a case of an adult selling a book to an adult, and has nothing to do with it.

One more word about copyright- you said you couldn't post a case because of copyright issues. Not true.

All government court cases, as well as ALL federal government documents, are NOT copyrighted. U.S. Copyright law does not apply. Works by the U. S. government are not eligible for U. S. copyright protection. They belong to the people, and can be reprinted without copyright infringment.

Dan said...

Jim - I used Westlaw for my most of my searching. I could copy/paste cases themselves, but none of Westlaw's stuff. That's the copyright problem. I'm glad you found the findlaw citing of the case.

As for the school codes, I didn't have time to go through all of those and look for precedents. I assumed the exception was intended for sex ed classes, but wasn't sure that's what the law itself read in the school codes.

Butler was the only Michigan case I found at all on those statutes. While it is from a much different situation, oftentimes it is the text of the law that is considered in the case (from a criminal law standpoint).

Overall, I think it's a legit request, and I certainly don't have any use for "The Bluest Eye" being part of a school's curriculum. I don't fault Vicki for making the request. That said, I doubt it would get past the federal courts on either First Amendment grounds, or vagueness grounds. It's not what we think that is important. It's what the prosecutor and judges and maybe a jury think. I may very well be wrong on this. What amazes me most is that there is no Michigan precedent on this.

It's going to be interesting to see what happens.

Labrador Blue Dog said...


A good place to read some interesting, relevant cases regarding this is here.

While it is the ALA's site, it has some interesting reading, and is a good collection all on one spot for case references.

Two that you might find interesting are:

"Virgil v. School Board of Columbia County, 862 F.2d 1517"


"Ginsberg v. New York," 390 U.S. 62, 20 L. Ed. 2d 195, 88 S. Ct. 1274

You are right about there being no or very little Michigan precident in this area of law, under 722.676. That just means there haven't been cases where the matter has come up before. The language in 722.676 was crafted well after "Ginsberg", so it should stand up well.

So, as a side note- what are you learning in law school? Is it what you expected?

Have you discovered that msot of what you thought was always black and white, is now very clearly a great deal of various shades of grey?

Curley Sue said...

Nice exchange guys, very intelligent and interesting. Check your email later tonight for some updated information that will make you both scratch your heads.

Page Field said...

I did a simple google search for college bound reading list. Slaughter House Five was on virtually every list.

Should we go after the colleges for promoting the reading of so called smut.????????

Sure I appreciate the legal beagle discussion but these books are not pornographic. Its not even close. The fact Fyke would use the P word shows her lack of tack and just plain wierd. Mr. Morse will state there is no merit.

I pray the Love Group moves on because they are destroying this fine community. (I really question how many of the 1900 members are local, I've never met a single supporter- and I get around) They are vocal minority that the newspaper is using as a tool to sell newspapers. I spoke to a library staffer from the Cromaine Library and she was in tears talking about the dynamic of the situation. They were not tears of joy.

Dan said...

Jim - I'm more cautious on legal related matters than I was before. That's the biggest difference. Contracts is the class having the biggest impact on my views.