"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
The First Amendment seems pretty straight forward at first glance, doesn't it? With simple and elegant language, who could get confused? Who am I kidding...we can't seem to agree on much of anything in this country. Unfortunately, there are volumes of case law on the topic of free speech alone, not to mention the topics of freedom of religion, of the press, of peaceable assembly, and dissent, all of which are encompassed in the First Amendment.
According to the American Library Association, a book challenge is "an attempt to remove or restrict materials, based upon the objections of a person or group. Challenges do not simply involve a person expressing a point of view; rather, they are an attempt to remove material from the curriculum or library, thereby restricting the access of others."
The ALA has a thorough summarization of seminal legal cases involving the First Amendment. Interestingly, some of them involve conflicts between various guaranteed assurances within the amendment itself. For example, in the case below, the government's assurance that the state would not establish or sponsor a religion was used as the basis for a challenge to the King James version of the Bible in a school library:
Evans v. Selma Union High School District of Fresno County, 222 P. 801 (Ca. 1924)
The California State Supreme Court held that the King James version of the Bible was not a "publication of a sectarian, partisan, or denominational character" that a State statute required a public high school library to exclude from its collections. The "fact that the King James version is commonly used by Protestant Churches and not by Catholics" does not "make its character sectarian," the court stated. "The mere act of purchasing a book to be added to the school library does not carry with it any implication of the adoption of the theory or dogma contained therein, or any approval of the book itself, except as a work of literature fit to be included in a reference library."
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In a more recent case, the Harry Potter books survived attack:
Counts v. Cedarville School District, 295 F.Supp.2d 996 (W.D. Ark. 2003)
The school board of the Cedarville, Arkansas school district voted to restrict students' access to the Harry Potter books, on the grounds that the books promoted disobedience and disrespect for authority and dealt with witchcraft and the occult. As a result of the vote, students in the Cedarville school district were required to obtain a signed permission slip from their parents or guardians before they would be allowed to borrow any of the Harry Potter books from school libraries. The District Court overturned the Board's decision and ordered the books returned to unrestricted circulation, on the grounds that the restrictions violated students' First Amendment right to read and receive information. In so doing, the Court noted that while the Board necessarily performed highly discretionary functions related to the operation of the schools, it was still bound by the Bill of Rights and could not abridge students' First Amendment right to read a book on the basis of an undifferentiated fear of disturbance or because the Board disagreed with the ideas contained in the book.
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Courts have made a distinction between school libraries and public libraries, giving educators some latitude in determining the educational value of books they bring into students' curriculum. However, schools cannot remove a book because they simply don't agree with the ideas put forth in the book. An important case for school libraries:
Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982)
In 1975, three school board members sought the removal of several books determined objectionable by a politically conservative organization. The following February, the board gave an "unofficial direction" that the books be removed from the school libraries, so that board members could read them. When the board action attracted press attention, the board described the books as "anti-American, anti-Christian, anti-Semitic, and just plain filthy." The nine books that were the subject of the lawsuit were Slaughterhouse-Five by Kurt Vonnegut, Jr.; The Naked Ape by Desmond Morris; Down These Mean Streets by Piri Thomas; Best Short Stories of Negro Writers edited by Langston Hughes; Go Ask Alice; Laughing Boy by Oliver LaFarge; Black Boy by Richard Wright; A Hero Ain't Nothin' But a Sandwich by Alice Childress; and Soul on Ice by Eldrige Cleaver.
The board appointed a review committee that recommended that five of the books be returned to the shelves, two be placed on restricted shelves, and two be removed from the library. The full board voted to remove all but one book.
After years of appeals, the U.S. Supreme Court upheld (5-4) the students' challenge to the board's action. The Court held that school boards do not have unrestricted authority to select library books and that the First Amendment is implicated when books are removed arbitrarily. Justice Brennan declared in the plurality opinion: "Local school boards may not remove books from school library shelves simply because they 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."
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Though court challenges appear to be more common for school libraries, public libraries are far from immune:
Sund v. City of Wichita Falls, Texas, 121 F. Supp. 2d 530 (N.D. Texas, 2000)
City residents who were members of a church sought removal of two books, Heather Has Two Mommies and Daddy's Roommate, because they disapproved of the books' depiction of homosexuality. The City of Wichita Falls City Council voted to restrict access to the books if 300 persons signed a petition asking for the restriction. A separate group of citizens filed suit after the books were removed from the children's section and placed on a locked shelf in the adult area of the library. Following a trial on the merits, the District Court permanently enjoined the city from enforcing the resolution permitting the removal of the two books. It held that the City's resolution constituted impermissible content-based and viewpoint based discrimination; was not narrowly tailored to serve a compelling state interest; provided no standards or review process; and improperly delegated governmental authority over the selection and removal of the library's books to any 300 private citizens who wish to remove a book from the children's area of the Library.
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As we wrap up Banned Book week, it's worth a look at the legal challenges regarding books in our libraries. Take time today to look at the sometimes surprising situations in which libraries have been asked to remove books. All case law summaries above are from the American Library Association's website. These an many more cases can be found here.
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