Republican AGs Declare LGBTQ+ Merchandise May Be Obscene

In a letter to Target, seven Republican Attorneys General implied that LGBTQ+ merchandise could be considered obscene and threaten Target for selling LGBTQ+ youth merchandise.

Republican attorneys general from seven states have signed a letter to Target, insinuating that the retailer's LGBTQ+ youth content and merchandise may be considered obscene and in violation of law. The letter criticizes Target for offering youth-sized clothing featuring Pride themes and asserts that the states are obliged to “enforce state laws protecting children” from “content that sexualizes them,” including obscenity laws. The letter also suggests that Target may be breaching the law by making decisions that are allegedly “unprofitable” and not in the best interests of its shareholders, citing this as a violation of the company's fiduciary duty.

The letter, which is six pages long, does not provide specific details regarding potential legal consequences if Target continues to sell the merchandise in question. Notably, this follows a wave of bills introduced in various states that aim to ban LGBTQ+ content under obscenity laws, including measures to ban drag, ban books with LGBTQ+ characters, and restrict LGBTQ+ content in schools and libraries.

Here is the relevant portion of the letter implying potential violations of obscenity laws:

Letter implying obscenity law violations.

Earlier this year, Target was the focus of a vehement campaign led by far-right groups for offering LGBTQ+ merchandise. Figures like Matt Walsh played a leading role in this campaign, which resulted in an onslaught of threats, violence, and harassment aimed at the store's employees. In one tweet, Walsh proclaimed the aim was to “make Pride toxic,” ensuring that companies endorsing Pride would “pay a price.” Target, in response, removed the controversial merchandise from numerous locations to safeguard its staff. However, the threats persisted throughout Pride Month. Inspired by those threats, these Republican attorneys general now have issued stern warnings of potential legal repercussions to the store.

Obscenity laws have previously been invoked in efforts to target LGBTQ+ content in the United States. Earlier this year, several states either proposed or enacted legislation classifying LGBTQ+ content as obscene. For example, Texas passed a law widely interpreted as banning LGBTQ+ books from schools. Llano County in Texas also enacted a ban on several LGBTQ+ books, which was subsequently blocked by a judge on the grounds of likely unconstitutionality. Moreover, a number of states approved laws categorizing drag — defined by these laws as dressing and performing in a gender different from one’s assigned birth gender — as obscene. Among the proposed laws that did not pass were a West Virginia bill that sought to label “exposure to transgenderism” as obscene and a Montana amendment aimed at designating LGBTQ+ internet content as obscene if accessible by minors. The invocation of obscenity laws as a tool to eliminate LGBTQ+ content from public view shows signs of escalating, as evidenced by the recent letter aimed at Target.

The United States is also not the first country in recent years to use obscenity to target LGBTQ+ content in public. These laws and threats follow in the footsteps of more authoritarian countries that have successfully implemented such measures. Hungary, for instance, recently instituted a law that declared Pride flags and gay characters on television shows could only appear in late night TV or else would be considered obscene. Russia likewise has passed extreme laws that declare “promotion of homosexuality” illegal and obscene.

Lacking legislation that specifically declares content such as Target’s Pride line as obscene, some state attorneys general may turn to interpreting old obscenity laws as including LGBTQ+ content. The list of attorneys general who have signed onto this letter threatening Target with promoting “obscene” merchandise are:

• Todd Rokita - Indiana Attorney General

• Tim Griffin - Arkansas Attorney General

• Raul Labrador - Idaho Attorney General

• Daniel Cameron - Kentucky Attorney General

• Lynn Fitch - Mississippi Attorney General

• Andrew Bailey - Missouri Attorney General

• Alan Wilson - South Carolina Attorney General

While most legislation labeling LGBTQ+ content as obscene did not pass this year, advocates are concerned about the growing momentum behind such measures. There is an escalating trend among states in targeting the LGBTQ+ community, particularly on issues pertaining to gender identity. The readiness of attorneys general from several states to suggest that even rainbow logos could be deemed potentially obscene indicates the likelihood of further legislative attempts in 2024. Advocates continue to work to prevent the United States from following in the footsteps other countries that have eliminated LGBTQ+ content from public life entirely.