Writer: Evan Randle
Editor: Sandy Chen
Ever since their origins in ancient China, books have been facilitators for a great many aspects of human society. They spread information, facilitate discussion, incite passionate emotions, call others to action, and fulfill almost every purpose one can conceive of the written language. Despite their great significance in American society, past and present, books have been targets for heavy censorship in recent years. Book removal incidents in the United States doubled between 2021 and 2022 and have become heavily associated with political conflict (Ross, 2024). Though many of these bans have concerned the education system, there remain fears of censorship more broadly. But are these bans – whether within schools or the greater American culture – constitutional, especially regarding the First Amendment? Like all legal questions, this is a difficult answer to parse. While national or statewide book bans remain rare and considered unconstitutional in the United States, advocates against censorship face a difficult – though not impossible – battle to similarly argue educational book bans unconstitutional.
Though the United States has a history of nation or statewide book bans, these have largely dwindled in recent years. There have been multiple points in American history where book bans have been supported or at the very least considered – such was the case with abolitionist texts such as Uncle Tom’s Cabin in the antebellum south, or Robin Hood in 1953 due to its perceived support of communism (Nielsen, 2023). Today, most members of both political parties generally disagree with book banning on principle (Nielsen, 2023). Lawyer Srinivas Burra (2014) echoes this philosophy, “Books, like other artistic and creative works... fall under the freedom of speech and expression... generally a constitutional ... right in liberal democratic systems (p.18)”. Indeed, cases such as Abrams vs United States led to freer expression of ideas being incorporated into American constitutional jurisprudence (Burra, 2014). If most Americans assume and support the freedom of expression through published works, what separates this national right from those in schools?
The constitutionality of book bans in school is significantly harder to parse than federal book bans, though there are opportunities for those who wish to argue against them. A survey of citizens in Iowa, which has recently experienced numerous book restrictions in school, reveals a significant majority of the state’s population opposes banning books in schools (Nielsen, 2023). Why, then, does it continue to persist in such states? The answer is simultaneously simple and complex: public schools are regulated by state governments, which can constitutionally limit the right to free expression, specifically when relating to educational curricula and environments (Ross, 2024). Those who argue against these policies typically argue that libraries should be exempt from similar restrictions as zones of free inquiry, where students can assert their right to free inquiry (Ross, 2024). When making legal decisions revolving around book bans in public schools, however, courts have three primary complications to contend with: the weakness of the Board of Education v. Pico case – the only Supreme Court case addressing the issue, and one often ignored by state governments, the poor or non-existent guidance of appellate courts, and the incredibly diverse viewpoints of plaintiffs and parents (Ross, 2024). Though these obstacles are significant, plaintiffs in educational censorship cases have a few effective arguments at their disposal. Most important are the First Amendment’s right to receive education, Speech Clause claims based on overbreadth, vagueness, and prior restraint, and Fourteenth Amendment claims relating to due process and equal protection (Ross, 2024). Though these arguments must be portrayed near-flawlessly, they present some hope of breaking the constitutional wall erected around the banning of books in public schools.
Regardless of one’s stance on censorship within the United States’ education system, it is difficult to deny the incredible influence published works have on the country. It is therefore imperative to protect the rights of those who create these works, even if one personally disagrees or dislikes their content. Without the free spread of knowledge, information, and opinion, debate surrounding the freedom of expression or even this article would fail to exist.
References
Ross, C. J. (2024). Are “Book Bans” Unconstitutional? Reflections on Public School Libraries and the Limits of Law. Stanford Law Review.
Nielsen, T. E. (2023, Sept 15). Government by the People: Iowa’s Book-Ban Law and Direct Democracy. Harvard Law Review. https://harvardlawreview.org/blog/2023/09/government-by-the-people-iowas-book-ban- law-and-direct-democracy/
Burra, S. (2014). Decriminalising Creative ‘Offence’. Economic and Political Weekly, 49(40), 18–21.
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