JEFFERSON CITY, Mo. — Missouri Secretary of State Jay Ashcroft this week attempted to clarify his proposed ban on funding for what he called “prurient” library books, explaining that he meant “smut.”
Ashcroft — a Republican whose father John Ashcroft served as attorney general under President George W. Bush, and a member of influential conservative legal organization the Federalist Society — has been vague about what standards he intends to apply in determining whether books are “prurient,” a concept central to the legal differentiation between obscenity and free speech protected under the First Amendment.
The Missouri Library Association said in a statement that it considers Ashcroft’s proposed rule “an infringement on the professional judgment of librarians, and an effort to further stoke division in the communities that libraries serve,” the St. Louis Business Journal reported.
When pressed for details, Ashcroft admitted that he does not currently have a list of “prurient” books, which he referred to as “smut.” However, he claimed to have seen “books written for ‘tweeners’ displayed in libraries near a computer intended to be used by young children,” according to the report. Neither “tweener” nor “smut” are legally recognized categories of persons or content.
Redefining 'Prurient' to Censor All Adult Content
Ashcroft’s proposed rule states that “no funds received shall be used to purchase or acquire materials in any form that appeal to the prurient interest of any minor.”
This would essentially constitute a redefinition of the term “prurient,” which bears a very specific legal meaning.
Industry attorney Lawrence Walters, of Walters Law Group, explained to XBIZ in 2020 that the word “prurient” is defined in the law as “a shameful or morbid interest in sexuality.” Walters pointed out that obviously, adult businesses take the position that their content “does not involve a shameful or morbid interest in human sexuality, but a healthy one.”
The 1973 Miller Test in the Crosshairs of Republicans
The Latin verb “pruire” literally means “to itch.” According to etymological sources, in the mid 1600s the term “prurient” poetically shifted meaning in English from “itching” to “having an itching desire.” It is only a century later, in the 1750s, that the word gained the puritanical connotation of “lascivious and lewd.”
In “Prurient Interests,” a 2002 column on NPR’s Fresh Air program, UC Berkeley information studies scholar Geoffrey Nunberg pointed out the difficulty of building law around obsolete words that few people can define properly.
The Miller test, developed in the 1973 case Miller v. California, is used by courts all the way up to the United States Supreme Court for determining whether speech or expression can be labeled “obscene” and therefore not protected under the First Amendment.
By devising the Miller test, Nunberg explained, the Nixon-era Supreme Court set the standard for judging obscenity as: "Whether, to the average person, applying contemporary community standards, the dominant theme of the material … appeals to prurient interest."
That formula, Nunberg noted, “has been widely used ever since then.”
Last week, Utah Rep. Ken Ivory (R-West Jordan) demanded a total reversal of the last 50 years of legal and judicial practice, dismissing the Miller test, which has been the nation's legal standard for a half century, as merely the opinion of a few Supreme Court justices at the time.
A Republican Dynasty of Midwestern 'Anti-Smut' Fighters
“In some cases, you have to look at a book to determine” whether it is prurient, Ashcroft declared, “and in some cases, you don’t have to look at it very long.”
Ashcroft's assertion seems to harken back to the pre-Miller "I know it when I see it" standard for defining obscenity, the vagueness of which ultimately led to the Miller test.
Ashcroft is expected to run for Missouri governor in 2024. His father, John Ashcroft, is enshrined in free speech legal history as the losing party of the “Ashcroft v. Free Speech Coalition” Supreme Court decision, which declared a 1996 censorship law that banned all porn in the name of fighting child pornography to be unconstitutional and overbroad.
The elder Ashcroft’s track record as an anti-sex crusader included a notorious 2002 incident, when he ordered his department to spend $8,000 on blue drapes to hide two giant, aluminum art deco statues of partially nude women in the Great Hall of the Department of Justice, “because he didn't like being photographed in front of them,” according to CBS and ABC News.
