In 1972, the Idaho Legislature enacted Idaho Code section 18-1514, which defined the term “harmful to minors” for Idaho’s obscenity laws. In April 2024, the Idaho Legislature amended that definition and also enacted H.B. 710, the Children’s School and Library Protection Act. H.B. 710 prohibited schools and public libraries from making “harmful” content available to minors, as it is defined in section 18-1514. The law made doing so a civilly enforceable offense and created a private right of action authorizing a minor, parent, or legal guardian to recover statutory damages, actual damages, and injunctive relief, and it authorized the State to seek injunctive relief. Section 18-1514’s definition of “harmful to minors” incorporates prurient-interest and patent-offensiveness elements and provides that nothing in the definition proscribes material that, taken as a whole and “in context in which it is used,” possesses serious literary, artistic, political, or scientific value for minors.
In July 2024, the Northwest Association of Independent Schools and two of its member schools filed a pre-enforcement action under 42 U.S.C. section 1983 against the Idaho Attorney General and two county prosecutors. The plaintiffs alleged that H.B. 710 violated free speech rights under the First and Fourteenth Amendments. They sought a statewide preliminary injunction to enjoin the enforcement of H.B. 710 statewide.
The district court dismissed certain plaintiffs for lack of standing and denied the preliminary injunction, concluding that plaintiffs failed to demonstrate a likelihood of success on the merits. The private school plaintiffs appealed to the Ninth Circuit Court of Appeals.
The Ninth Circuit applied the three-step overbreadth analysis used in obscenity cases. Under this analysis, a court determines the statute’s scope, assesses whether it covers protected expression, and decides whether the law can be construed in a limited way that would avoid the constitutional issue.
The Ninth Circuit first construed the reach of the statute. It acknowledged that section 18-1514(6)’s use of “includes” is expansive on its face. It then analyzed the definition in the context of the entire statutory scheme. The statute defines “harmful to minors” only as material that (1) appeals to the prurient interest of minors and (2) depicts specified sexual content in a patently offensive way, and it excludes material that, taken as a whole, possesses serious literary, artistic, political, or scientific value for minors. Because material only falls within the definition when all those elements are present. Therefore, the Ninth Circuit concluded that the provision can be construed narrowly to cover only sexually explicit material that satisfies those requirements.
The Ninth Circuit applied the same structural reading to the definition of “sexual conduct,” which includes “any act of . . . homosexuality.” The Ninth Circuit noted that although the phrase is broad if read in isolation, it triggers liability only within the “harmful to minors” framework and only when the additional prurient-interest and patent-offensiveness elements are met. In that context, the Ninth Circuit construed the phrase to reach only sexually explicit conduct between persons of the same sex, but not non-erotic or innocuous depictions.
The Ninth Circuit’s analysis ultimately turned on the serious-value clause, which excludes material that, taken as a whole and “in context in which it is used,” possesses serious literary, artistic, political, or scientific value for minors. The parties disputed whether that “context” language permits age-based determinations among different groups of minors. Accepting the State’s proposed age-based reading for purposes of the overbreadth analysis, the Ninth Circuit concluded that the clause allows evaluators to assess serious value differently depending on the age of the minor audience.
The Ninth Circuit held that this construction imposes a variable, age-based standard tied to the reviewer’s view of what is appropriate for particular age groups, rather than an objective standard. The statute provides no objective criteria for determining how “context” should operate, and its private enforcement mechanism amplifies the risk for schools and libraries. In combination, these features risk restricting access to non-obscene material, particularly for older minors, and encourage self-censorship by schools and libraries.
The Ninth Circuit held that the context clause is likely facially overbroad because it threatens to regulate a substantial amount of protected expression and is not readily susceptible to a narrowing construction. It reversed the denial of the preliminary injunction and remanded for the district court to determine the appropriate limited scope of injunctive relief focused on that clause.
Nw. Ass’n of Indep. Sch. v. Labrador (9th Cir. Jan. 29, 2026, No. 25-2491) 2026 LX 24215.