When are book bans unconstitutional? A First Amendment scholar explains

By Erica Goldberg

The United States has become a nation divided on important K-12 education issues, including which books students should be able to read in public school.

Erica Goldberg

Efforts to ban books from school curricula, remove books from libraries and keep lists of books that some deem inappropriate for students are growing as Americans become more polarized in their opinions.

These types of actions are called “book bans”. They are also often referred to as “censorship”.

But the concept of censorship, as well as the legal protections against it, are often greatly misunderstood.

A 2021 campaign ad for Virginia GOP gubernatorial candidate Glenn Youngkin focuses on a book containing what one mother called “explicit material.”

Banning of books by the political right and left

On the right side of the political spectrum, where much of the banning of books occurs, bans take the form of school boards removing books from school curricula.

Politicians have also proposed legislation banning books that some lawmakers and parents consider too mature for school-aged readers, such as “All Boys Aren’t Blue,” which explores queer themes and topics of consent. Nobel Prize-winning author Toni Morrison’s classic “The Bluest Eye,” which includes themes of rape and incest, is also a frequent target.

In some cases, politicians have proposed criminal charges against public school and library librarians for putting these books into circulation.

Most of the books targeted for banning in 2021, according to the American Library Association, “were written by or about black or LGBTQIA+ people.” State lawmakers have also targeted books that they say guilt or distress students because of their race or imply that students of any race or gender are inherently bigoted.

There are also some attempts by the political left to engage in banning books as well as removing books from school curricula that marginalize minorities or use racially insensitive language, such as popular” To Kill a Mockingbird”.

Define censorship

Whether any of these efforts constitute unconstitutional censorship is a complex question.

The First Amendment protects individuals from government “restriction of free speech.” However, government actions that some may view as censorship – particularly in relation to schools – are not always clearly classified as constitutional or unconstitutional, as “censorship” is a colloquial term, not a legal.

Certain principles can shed light on whether and when banning books is unconstitutional.

Censorship does not violate the Constitution unless the government does.

For example, if the government attempts to ban certain types of demonstrations based solely on the perspective of the protesters, this is an unconstitutional restriction on speech. The government cannot create laws or authorize lawsuits that prevent you from having particular books on your shelf unless the substance of those books falls into a narrowly defined category of unprotected speech such as obscenity or defamation. And even these unprotected categories are precisely defined and still very protective of speech.

The government, however, may adopt reasonable regulations that restrict “the time, place, or manner” of your speech, but generally it must do so in a content-neutral and point-of-view manner. The government therefore cannot restrict an individual’s ability to produce or listen to a speech based on the subject of the speech or the ultimate opinions expressed.

And if the government tries to restrict free speech in this way, it likely constitutes unconstitutional censorship.

What is not unconstitutional

In contrast, when individuals, companies, and organizations create policies or engage in activities that prevent people from speaking out, those private actions do not violate the Constitution.

A teenager reads a book titled
In February 2022, a Tennessee school board ordered the removal of the award-winning 1986 Holocaust graphic novel, “Maus,” by Art Spiegelman, from local student libraries. (Photo by Maro Siranosian/AFP via Getty Images)

The Constitution’s general theory of liberty views liberty in the context of governmental restriction or prohibition. Only the government has a monopoly on the use of force that compels citizens to act in one way or another. On the other hand, if private companies or organizations restrict speech, other private companies may experiment with different policies that allow people to have more choices to speak or act freely.

Yet private action can have a major impact on a person’s ability to express themselves freely and on the production and dissemination of ideas. For example, the burning of books or the actions of private universities that punish professors for sharing unpopular ideas hinder free discussion and the unfettered creation of ideas and knowledge.

When schools can ‘ban’ books

Whether the current incidents of book bans in schools are constitutional or not is hard to say for sure. The reason: Decisions made in public schools are analyzed by courts differently from censorship in non-governmental settings.

Control of public education, in the words of the Supreme Court, is largely entrusted to “national and local authorities”. The government has the power to determine what is appropriate for students and therefore their school’s curriculum.

However, students retain certain First Amendment rights: Public schools cannot censor student speech, whether on or off campus, unless it causes “substantial disruption.”

But officials can exercise control over a school’s curriculum without infringing on the free speech rights of students or K-12 educators.

There are exceptions to the government’s power over school curricula: the Supreme Court ruled, for example, that a state law barring a teacher from covering the subject of evolution was unconstitutional because it violated the Establishment Clause of the First Amendment, which prohibits the state from endorsing any particular religion.

School boards and state legislators usually have the final say on what school curriculum is taught. Unless state policies violate another provision of the Constitution — perhaps protection against certain types of discrimination — they are generally constitutionally authorized.

Schools, with limited resources, also have discretion in determining which books to add to their libraries. However, several members of the Supreme Court have written that the removal is constitutionally permissible only if done on the basis of the educational relevance of the book, but not because it was intended to deny students access to the books. with which school officials disagree.

Book banning is not a new issue in this country – nor is vigorous public criticism of such measures. And even though the government has the discretion to control what is taught in schools, the First Amendment guarantees the right of free speech to those who want to protest what happens in schools.

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