Can the Law Tell Me What Not to Read?
Six hundred and seven. This is the number of book challenges in 2019.[1] This number increased to 1,269 book challenges in 2022.[2] Book challenges are threats to knowledge, defined as “an attempt to remove or restrict materials, based upon the objections of an individual or group” off curricula or libraries, restricting others’ access to those materials.[3] Sometimes, a book challenge can lead to a book ban and the removal of that challenged material. Fahrenheit 451 does not seem like a distant dystopia when children are impeded from enjoying the knowledge that grows in the pages of books. In this article, I will explain the main reasons why books are being challenged, how book challenges take advantage of the law, and why I think books cannot be banned based on their content.
Most book challenges are made on the grounds that banning such content protects children from potentially harmful ideas, where the material is “sexually explicit,” “unsuited to any group age,” or contains “offensive language.”[3] Usually, the people challenging books are parents. These can be conservative parents to whom books related to race, LGBTQ identity, and sex pose a threat to their ideology, but also non-conservative parents who are worried about the impact of certain narratives and vocabulary on their children. For example, To Kill a Mockingbird by Harper Lee and Of Mice and Men by Steinbeck have been challenged for containing “racial slurs” or “racist stereotypes.”[4] As explained by Michael Cary, director of curriculum and instruction of a Minnesotan district, the decision of removing To Kill a Mockingbird and Huckleberry Finn was justified with the idea that “we could still teach the same standards and expectations through other novels that didn’t require students to feel humiliated or marginalized by the use of racial slurs.”[5]
However, whether books can or not be banned from schools for their content is still an ongoing legal battle. Considering the First Amendment, I argue not, as it protects freedom of speech and press.[6] However, there are other factors that weigh on judicial decisions. The majority opinion in Board of Education, Island Trees Union Free School District No. 26 v. Pico (1982) addressed how the First Amendment could be conciliated with the right of school boards to manage school affairs. The Court decided that this right “must be exercised in a manner that comports with the transcendent imperatives of the First Amendment,” providing some guidelines but not explicitly prohibiting book bans altogether.[7] As such, it is difficult to balance rights protected by the First Amendment with the school boards’ power to choose what is included in their curriculum and library. Other expressions left the case with loopholes to ban books. For example, the Court held that books could not be removed from the shelves of a school library; however, by limiting the restriction of the ban to school library bookshelves, the decision does not prohibit the removal of books from the school curriculum.[7] Furthermore, the Court held that books could not be banned on “narrowly partisan or political” grounds and that public officials could not remove books “simply because they dislike the ideas contained in those books,” protecting plurality of beliefs and ideologies in school libraries.[7] Nonetheless, this same case also stated that public officials can ban books if they are “pervasively vulgar.”[8] Therefore, this case grants school boards the right to prioritize “community values” over information.[9] The expression “pervasively vulgar” is fairly vague, but a previous case, Miller v. California (1973) established the “Miller test,” which defined some parameters for defining obscenity based on community standards.[10] Though widely used, this test is not universally accepted, as community standards in contemporary society are not clear and can different not only between states, but also within the same community.[11]
It can also be highlighted a tension between allowing the presence of some books in an educational setting and the values society strives to protect. Allowing certain books on school library shelves and in the curriculum might seem to pose a threat to the values of tolerance and mutual respect toward the other that schools uphold. Schools can choose to promote these values, but they can also be obliged to, like in Massachusetts, where “all public school systems shall, through their curricula, encourage respect for human and civil rights of all individuals regardless of race, color, sex, gender identity, religion, national origin or sexual orientation.”[12]
On these grounds, curricula cannot promote hate speech. I argue that restricting hate speech is significantly different from book banning. While hate speech constitutes a direct threat to a person or group’s safety, books do not. First, teenagers do not feel as distressed about seeing sexually explicit materials as some parents might think.[13] Second, if there are worries about how certain materials — like books with a “white saviorism” narrative — might negatively impact the students, it is possible to suggest that a book is only appropriate for children of a more advanced age with a more developed understanding. For example, moving a book from the 6th grade curriculum to the 8th grade curriculum, or, perhaps most importantly, providing proper contextualization of the material. Therefore, banning books is not a condition to creating a safe, inclusive learning environment.
Let us take the example of one of the most challenged books in 2019, with whose content I believe the general public is familiar: The Handmaid's Tale by Margaret Atwood.[14] This novel has been challenged for being “sexually explicit, violently graphic and morally corrupt,” “detrimental to Christian values,” and for its profanity and “vulgarity and sexual overtones.”[15] When it comes to religious concerns, Atwood herself has addressed this issue.[15] Regarding sexual content, The Handmaid’s Tale does not equate to pornography just because it deals with sexuality and gender issues. Besides this, if books are banned because they contain violence or values contrary to morality (which morality? one might ask), then history books can be banned because they mention slavery and barbarian acts perpetrated by our ancestors. Finally, banning Atwood’s dystopian novel completely fails the Miller test, as, in addition to the problems raised about “community standards,” one of the conditions to ban a material is that “the work, as a whole, lacks serious literary, artistic, political or scientific value.”[10] The Nobel-winning author won numerous awards — such as the Arthur C. Clarke Award, given for the best science fiction novel published in the UK the previous year, and the Governor General’s Literary Award, which recognized the dystopia as the best English-language fiction book in 1985 — in direct contradiction to the previous condition. Following this reasoning and given that the novel is a powerful portrayal of a totalitarian society through intersecting politics and sexuality, clearly not lacking “serious value,” there are no grounds to ban The Handmaid's Tale.[11]
So, what will happen now? It seems that nearly every issue is political, and banning books is no exception. Despite some liberals supporting the removal of certain books from school curricula, book ban is an issue mainly associated with conservative ideas.[17] When the President appoints Federal Judges and Supreme Court Justices, they do so having in mind their political interests, expecting the justices they appoint to rule according to their political beliefs while respecting the natural constraints imposed by law (Fiorina pp. 442-443, 445-446).[18] Though many book bans have been struck down when reaching higher levels of court, I am unsure whether that would continue to happen with a conservative majority on the bench. The French philosopher Tocqueville noted that “[t]here is hardly a political question in the United States which does not sooner or later turn into a judicial one.”[19] However, new ways are emerging to combat book bans. For example, it is now possible to defend a book against a ban under Title IX.[20] As the Biden Administration considers Title IX to include discrimination based on sexual orientation and gender identity, it is now easier to protect LGBTQ books from being banned.
To conclude, any book challenged for its content must not be banned should it not pose such a serious threat to children such that it cannot stand in public school’s libraries bookshelves. There are other mechanisms to restrict or disencourage access to young children without banning books. As expressed in Todd v. Rochester Community Schools (1972), “[o]ur Constitution does not command ignorance,” and any effort against knowledge should be disregarded.[21] Unless the Court holds that books are a real threat to children, lack any value to their formation, and disregard the power of non-coercive methods in the face of law enforcement, then, there is no reason why the law should tell us what not to read.
Bibliography
[1] “Infographics,” Banned and Challenged Books, accessed October 21, 2023, https://www.ala.org/advocacy/bbooks/frequentlychallengedbooks/statistics.
[2] “Book Ban Data,” Banned and Challenged Books, accessed October 21, 2023, https://www.ala.org/advocacy/bbooks/book-ban-data.
[3] “About Banned & Challenged Books,” Banned and Challenged Books, accessed October 21, 2023, https://www.ala.org/advocacy/bbooks/aboutbannedbooks.
[4] Kiara Alfonseca, “How Conservative and Liberal Book Bans Differ amid Rise in Literary Restrictions,” ABC News, accessed October 21, 2023, https://abcnews.go.com/US/conservative-liberal-book-bans-differ-amid-rise-literary/story?id=96267846.
[5] Lisa Kackze, “Duluth Drops Two American Novels from Reading List, Citing Use of Racial Slur,” TwinCities.com, February 6, 2018, https://www.twincities.com/2018/02/06/duluth-drops-two-american-novels-from-reading-list-citing-use-of-racial-slur/.
[6] “How Do Books Get Banned?,” First Amendment Museum, accessed October 15, 2023, https://firstamendmentmuseum.org/how-do-books-get-banned/.
[7] “BOARD OF EDUCATION, ISLAND TREES UNION FREE SCHOOL DISTRICT NO. 26 et al., Petitioners, v. Steven A. PICO, by His next Friend Frances Pico et Al.,” Legal Information Institute, accessed October 21, 2023, https://www.law.cornell.edu/supremecourt/text/457/853.
[8] Richard Dahl “Book Banning Efforts Are on the Rise. What Does the Law Say?,” FindLaw, January 6, 2022, https://www.findlaw.com/legalblogs/law-and-life/book-banning-efforts-are-on-the-rise-what-does-the-law-say/.
[9] Morgan Gillbard, “What You Need to Know About the Book Bans Sweeping the U.S.,” Teachers College - Columbia University, accessed October 21, 2023, https://www.tc.columbia.edu/articles/2023/september/what-you-need-to-know-about-the-book-bans-sweeping-the-us/.
[10] David L. Hudson Jr., “Miller Test,” The Free Speech Center, accessed October 21, 2023, https://firstamendment.mtsu.edu/article/miller-test/.
[11] Ronald Steiner, “Community Standards,” The Free Speech Center, accessed October 15, 2023, https://firstamendment.mtsu.edu/article/community-standards/.
[12] “Safe Schools Program for LGBTQ Students,” Mass.Gov, accessed October 21, 2023, https://www.mass.gov/info-details/safe-schools-program-for-lgbtq-students.
[13] Hannah Natanson, “She Challenges One School Book a Week. She Says She’ll Never Stop,” The Washington Post, September 28, 2023, https://www.washingtonpost.com/education/2023/09/28/virginia-frequent-school-book-challenger-spotsylvania/.
[14] “Top 10 Most Challenged Books Lists,” Banned and Challenged Books, accessed October 13, 2023, https://www.ala.org/advocacy/bbooks/frequentlychallengedbooks/top10/archive.
[15] “Banned Books 2022 - The Handmaid’s Tale,” Marshall Libraries, accessed October 21, 2023. https://www.marshall.edu/library/bannedbooks/the-handmaids-tale/.
[16] Margaret Atwood, “Go Ahead and Ban My Book,” The Atlantic, February 12, 2023, https://www.theatlantic.com/ideas/archive/2023/02/margaret-atwood-handmaids-tale-virginia-book-ban-library-removal/673013/.
[17] Martin Pengelly, “Book Bans in US Public Schools Increase by 28% in Six Months, Pen Report Finds,” The Guardian, April 20, 2023, https://www.theguardian.com/books/2023/apr/20/book-bans-us-public-schools-increase-pen-america.
[18] Morris P. Fiorina, Paul E. Peterson, Bertram Johnson, William G. Mayer, “Chapter 15: The Courts”, in The New American Democracy, ed. Reid Hester (Longman, 2011), 429-460.
[19] Alan Kahan, “What Tocqueville Saw in the Courts,” Law & Liberty, September 12, 2023, https://lawliberty.org/what-tocqueville-saw-in-the-courts/.
[20] Sylvia Mendonza, “Does Banning Books Violate the First Amendment?,” New Jersey State Bar Foundation, February 15, 2023. https://njsbf.org/2023/02/15/does-banning-books-violate-the-first-amendment/.
[21] “Todd v. Rochester Comm Schools, 41 Mich. App. 320,” Casetext, accessed October 21, 2023, https://casetext.com/case/todd-v-rochester-comm-schools.