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-Spencer L. Simons, former Director, O'Quinn Law Library and Associate Professor of Law



Monday, September 23, 2013

Banned Books and the Law



September 22-28 is the 31st annual banned book week, an awareness campaign that celebrates the freedom to read in America. Though individual books in American are not banned by specific laws,  they are none the less often restricted by other entities. Many of the cases regarding these “banned” books center on a school library restricting access to the material in some way. Historically, in cases where a book is removed or restricted from a school library due to the graphic nature of the content or language, courts have usually sided with the judgment of the school board (see, e.g. Presidents Council, Dist. 25 v. Cmty. Sch. Bd. No. 25, 457 F.2d 289 (2d Cir. 1972)). Yet, when book removals appear from the facts to be motivated by political or religious censorship, courts have typically ruled that this violates the challenging student’s First Amendment rights (see, e.g. . Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577 (6th Cir. 1976)). 

The United States Supreme Court has considered this issue once, in Board of Education,  Island Trees Union Free School District 26 v. Pico (457 U.S. 853 (1982). In this case, the Court considered an incident where a school board “unofficially” directed the superintendent of the district to order the removal of nine books deemed to be objectionable (Pico, 457 U.S. at 857). 

The Court concluded that the Island Trees School District's school board's removal of books from the library violated students' First Amendment rights. The Court held that “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,”(Pico, 457 U.S. at 872). But, a school district may remove a book that is “pervasively vulgar,” (Pico, 457 U.S. at 871).

Though this is the only time the Supreme Court has granted certiorari to a case involving a school district’s removal of material from a school library, other cases decided post-Pico by the circuit courts since then have been more favorable to school districts’ discretion than the First Amendment rights of students (see, e.g. Campbell v. St. Tammany Parish Sch. Bd., 64 F.3d 184 (5th Cir. 1995). Courts have begun to look more at the motivation of the school board, a fact specific inquiry that is difficult to prove. 

This week, as we consider banned and challenged books, it is important to consider not just the books themselves, but also the jurisprudence that has shaped the way books are banned in schools across America. But, for those interested in some good restricted reads, try some of the books on this list- the most frequently challenged books of the last two decades.

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