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The Legal Implications of Banned Books Week
by
Posted On October 6, 2015
The American Library Association’s (ALA) annual Banned Books Week celebrates the freedom to read by drawing attention to attempts to censor reading materials in public, school, and academic libraries. The ALA’s Office for Intellectual Freedom (OIF), the event’s organizer, contributes to the week its list of the 10 most frequently challenged books of the year. The most recent list is for 2014 and includes Sherman Alexie’s The Absolutely True Diary of a Part-Time Indian, Toni Morrison’s The Bluest Eye, and Stephen Chbosky’s The Perks of Being a Wallflower. Past lists have included works from the Captain Underpants series and the Harry Potter series.

Book Challenges at Universities

Challenges to books are not limited to libraries. Recently, Duke University was in the news when several of its freshmen protested the inclusion of Alison Bechdel’s Fun Home on a summer reading list. The book is an autobiographical graphic novel about the author’s homosexuality and her relationship with her closeted father. The book was on The New York Times best-seller list and was the basis for a Tony Award-winning musical. Several Duke students, however, protested the book due to its “pornographic nature” and sexual themes, including homosexuality. In 2013, the College of Charleston’s use of Fun Home as the summer reading assignment for incoming freshmen resulted in the South Carolina state legislature penalizing the college by redirecting the funding for the reading program to other purposes.

Book Banning’s Roots

Book banning and book censorship are not new phenomena. The first copyright law—England’s 1709 Statute of Anne—arose in part due to the censorship exercised on behalf of the crown through a royally appointed printer’s guild. Court cases were brought against importers and publishers of novels such as Tropic of Cancer and Fanny Hill, and many totalitarian regimes have publicly burned books with which they disagreed. The OIF’s challenged books may not have faced those extremes, but the list indicates that censorship remains part of our present.

The difficulty is that some books are objectionable to people, either due to their subject matter or due to circumstances involving the reader or the context. I recall that my mother objected to me reading Richard Hooker’s novel MASH when I was a teenager because of its war and sexual themes and provocative content. (I read it anyway. Sorry, Mom.) The Duke students who protested Fun Home felt that reading the book would violate their sincerely held Christian and moral beliefs.

The First Amendment

These objections have given rise to a complex and nuanced legal structure governing censorship and the banning of books and other reading materials. Central to this legal structure is the First Amendment’s provision protecting the freedom of speech. Specifically, the amendment states, “Congress shall make no law … abridging the freedom of speech. …” The first part of this legal structure is critical in that the language “Congress shall make no law” (which applies not only to the federal government, but also to state and local governments) indicates that speech has the right to be free from governmental interference, but not necessarily from nongovernmental actions. Private schools and libraries, for example, are not government actors and have broader discretion to censor books based on content. Publishers, as private companies, have similar discretion to choose what they will and will not accept for publishing.

The next part of the First Amendment’s legal structure is also critical because it evaluates what constitutes freedom of speech. Is it only the freedom to speak or engage in actions that might be seen as speech (such as raising a fist or wearing an armband in protest), or does it include the freedom to read? Fortunately, the answer is a clear “yes.” As far back as James Madison’s day, the First Amendment has reflected not only the right to speak, but also the right to access information. “Knowledge will forever govern ignorance: And a people who mean to be their own Governors must arm themselves with the power which knowledge gives,” Madison said. More recently, the U.S. Supreme Court stated in unequivocal terms, “[T]he right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.”

The court made that statement in the case of Board of Education, Island Trees Union Free School District No. 26 v. Pico, a 1982 decision that remains key to any discussion of the legal rights and limitations of schools and libraries to censor books. The case involved a decision by New York’s Island Trees School District to remove nine books from high school and junior high libraries that the district board described as “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy.” In response, a group of students and parents sued the school district, arguing that the removal of the books violated their right to receive information under the First Amendment.

In a lengthy opinion, the court set down a series of holdings and guidelines that continue to broadly apply to book challenges. First, the court made it clear that books may not be removed from school libraries “because they [the board in this case] dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’” Next, the court advocated developing and maintaining a policy and procedure for addressing book challenges that includes the “advice of literary experts” and “the guidance of publications that rate books for junior and senior high school students.” Island Trees had such a policy and procedure, which the district board bypassed. The clear implication to the court was that the board’s removal decision was motivated by the desire to suppress the ideas presented by the books—which violates the First Amendment.

Book Challenges Today

There are several clear takeaways from the Pico decision and court decisions in other cases that are important in any discussion of the legality of book challenges. First, free speech protection applies most broadly to books that are already owned by the school or library. Freedom to access information does not require a library to obtain a particular work, and libraries have more freedom to decline to obtain a work than to ban or censor works already obtained. Second, a book used as part of the school’s educational curriculum may be more scrutinized than a book that simply is part of the school library collection. The Pico court made it clear that schools have broader—but not unlimited—discretion in setting their educational goals, including addressing “traditional values be they social, moral, or political.” Libraries, on the other hand, were eloquently described as places “dedicated to quiet, to knowledge, and to beauty.” Voluntary use of the library and access to a selection of books from the library are part of the students’ “self-education and individual enrichment” and are entitled to greater free speech protection.

Finally, the Pico court and subsequent courts acknowledge that books may be challenged and removed from libraries (or be access-restricted) for a number of reasons as long as the ideas presented by the book are not the reason for the removal. In a 2009 case from Florida, a former Cuban political prisoner challenged a children’s book called A Visit to Cuba because he asserted it was an untrue portrayal of life in Cuba. Notably, there was a procedure in place to deal with such challenges that the school administration followed. The book was determined to be factually inaccurate in several respects in both what it included and what it omitted and was removed with the recommendation that a more factually accurate book be found to replace it.

The court upheld the removal, although there was an argument that the book presented a depiction of Cuba in which children are “eating, working and going to school” just like in the U.S. Other legally acceptable reasons for removing books have included a lack of quality as recognized in reviews and other publications, age-appropriateness, obscenity, and “educational suitability.” However, these reasons cannot be used as mere pretexts for the suppression of the book’s ideas.

Any notion of censorship can and should be strictly scrutinized, preferably through a well-defined and established policy that is strictly implemented and enforced in a manner that complies with the First Amendment right to free speech and other constitutional rights of readers and citizens. That said, challenges are part of the legal process in that they allow people with sincere objections to works to be heard. It is in the response to those challenges that the law plays its most important role.


George H. Pike is the director of the Pritzker Legal Research Center and a senior lecturer at the Northwestern University School of Law. He teaches legal research, intellectual property, and privacy courses at the School of Law in both the J.D. and Northwestern’s innovative Master of Science in Law program. Prof. Pike is a frequent lecturer on issues of First Amendment, copyright, and Internet law for library and information professionals. He is also a regular columnist and writer for Information Today, publishing a monthly column on legal issues confronting information producers and consumers. Previously, Prof. Pike was director of the Law Library at the University of Pittsburgh School of Law, and held professional positions at the Lewis and Clark Law School and at the University of Idaho School of Law, and was a practicing attorney in Idaho Falls, Idaho. Prof. Pike received his B.A. degree from the College of Idaho, his law degree from the University of Idaho, and his Masters in Library Science from the University of Washington. He is a member of the American and Idaho State Bar Associations, the American Association of Law Libraries, and the American Intellectual Property Lawyers Association.

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