When are book bans unconstitutional? A First Amendment scholar explains

By Erica Goldberg

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

Erica Goldberg

Efforts to ban books school programsremove books from libraries and keeping lists of books that some find inappropriate for students increases 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, and the legal protections against it, are often very 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 most book bans take place, the bans are taking the form school boards » remove books from classroom programs.

Politicians have also proposed legislation banning the books which are what some lawmakers and parents consider too mature for school-aged readers, like “Not all boys are bluewhich explores queer themes and topics of consent. The classic from Nobel Prize-winning author Toni Morrison”The bluest eyewhich includes themes of rape and incest, is also a frequent target.

In some cases, politicians have proposed lawsuits librarians in public schools and libraries to keep these books in circulation.

Most books targeted for ban in 2021, says American Library Association, “were by or about black or LGBTQIA+ people.” State lawmakers have also targeted books they say make students feel guilty or anxious. based on their race or imply that students of any race or gender are inherently bigoted.

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

Define censorship

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

The First Amendment protects individuals against “restrict freedom of expression.” 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 tries to ban certain types of demonstrations solely on the basis of point of view demonstrators, it is an unconstitutional restriction on freedom of expression. The government cannot create laws or authorize lawsuits that prevent you from having particular books on your shelf unless the substance of those books fits within a narrowly defined framework. category of unprotected speech such as obscenity or defamation. And even these unprotected categories are precisely defined and still very protective of speech.

However, the government may make reasonable regulations that restrict “time, place or mannerof your speech, but generally it should be neutral in content and point of view. 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 up, 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. (Picture 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 which 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, book engraving or the actions of private universities in ability to punish because the sharing of unpopular ideas thwarts 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 given to “state 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 would cause a “substantial disturbance.”

But the officials can exercise control above study programme of a school without violating the free speech rights of K-12 students or educators.

There are exceptions to the government’s power over the curriculum: 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 –possibly protection against certain types of discrimination – they are generally authorized by the Constitution.

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 only constitutionally permitted if it is done based on the educational relevance of the book, not because it was intended to deny access to students books that school officials disagree with.

The book ban is not a new problem in this country – neither vigorous public criticism of such movements. 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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About Charles D. Goolsby

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