By Claire Mullally, Contributing Writer, and Andrew Gargano, First Amendment Center Intern
Last updated: November 29, 2017
“Local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books …”
— U.S. Supreme Court in Board of Education, Island Trees School District v. Pico (1982)
The Pico case is the most important court decision to date concerning school libraries and the First Amendment. In it, the Court recognized that the First Amendment rights of students are “directly and sharply implicated” when a book is removed from a school library. Therefore, the discretion of school boards to remove books from school libraries is limited. The law requires that if a book is to be removed, an inquiry must be made as to the motivation and intention of the party calling for its removal. If the party’s intention is to deny students access to ideas with which the party disagrees, it is a violation of the First Amendment. (Also see Book censorship section.)
Book-banning in school libraries is only the latest battleground in a centuries-old war over the censorship of ideas. Secular and religious authorities have censored books for as long as people have been writing them. In 360 B.C., Plato described the ideal Republic: “Our first business will be to supervise the making of fables and legends; rejecting all which are unsatisfactory… .”
In ancient times, when hand-scribed books existed in only one or a few copies, destroying them (usually by burning) guaranteed that no one would ever read them. Once the invention of the printing press around 1450 made it possible to circulate many copies of a book, book-burning, though still highly symbolic, could no longer effectively control the dissemination of texts.
Twenty years after Johann Gutenberg’s invention, the first popular books were printed and sold in Germany; within another 20 years, Germany’s first official censorship office was established when a local archbishop pleaded with town officials to censor “dangerous publications.” In England, Henry VIII established a licensing system requiring printers to submit all manuscripts to Church of England authorities for approval and in 1529, he outlawed all imported publications. In 1535, the French king Francis I issued an edict prohibiting the printing of books. By 1559, in reaction to the spread of Protestantism and scientific inquiry, the Roman Catholic Church issued the Index Librorum Prohibitorum, likely the first published and most notorious list of forbidden books. The purpose of the Index was to guide secular censors in their decisions as to which publications to allow and which to prohibit, since printers were not free to publish books without official permission. At a time when society was dominated by religion, religious and secular censorship were indistinguishable. The Catholic Church continued to print this Index, which grew to 5,000 titles, until 1966, when Pope Paul VI terminated the publication.
Censorship followed the European settlers to America. In 1650, a religious pamphlet by William Pynchon was confiscated by Puritan authorities in Massachusetts, condemned by the General Court and burned by the public executioner in the Boston marketplace. The incident is considered to be the first book-burning in America.
The pioneer of modern American censorship was Anthony Comstock, who founded the New York Society for the Suppression of Vice in 1872. In 1873, using slogans such as “Morals, not art and literature,” he convinced Congress to pass a law, thereafter known as the “Comstock Law,” banning the mailing of materials found to be “lewd, indecent, filthy or obscene.” Between 1874 and 1915, as special agent of the U.S. Post Office, he is estimated to have confiscated 120 tons of printed works. Under his reign, 3,500 people were prosecuted although only about 350 were convicted. Books banned by Comstock included many classics: Chaucer’s Canterbury Tales, The Arabian Nights, and Aristophanes’ Lysistrata. Authors whose works were subsequently censored under the Comstock Law include Ernest Hemingway, James Joyce, F. Scott Fitzgerald, Victor Hugo, D.H. Lawrence, John Steinbeck, Eugene O’Neill and many others whose works are now deemed to be classics of literature.
Paul Boyer, in Purity in Print: Book Censorship in America from the Gilded Age to the Computer Age, claims that the Comstock Law merely formalized what had been a “gentleman’s agreement” among publishers, booksellers and librarians enforcing a Victorian “code” of literary propriety. In the 1920s, nationally publicized court battles over such novels as James Joyce’s Ulysses, began to erode this code. The frightening specter of the Nazi book-burnings in Germany in 1933, Boyer says, crystallized anti-censorship sentiment in the United States. Within a few months after the book-burnings in Germany, the landmark federal court decision in United States v. One Book Called “Ulysses” clearing Ulysses broke the back of the Comstock Law.
Despite the lessons of the past, incidents of book-banning have continued to the present. Many of the most recent incidents occur at a local level, in public schools and libraries.
Henry Reichman, in Censorship and Selection: Issues and Answers for Schools, defines censorship as: “[T]he removal, suppression, or restricted circulation of literary, artistic or educational material — of images, ideas and information — on the grounds that these are morally or otherwise objectionable in light of standards applied by the censor.”
People trying to ban books from libraries do not usually regard their efforts as censorship. A member of the community, school board member or parent objects to, or “challenges,” a book, requesting its removal or sequestration so that students may not have free access to it. Most frequently, books are challenged because they contain profanity or violence, sex or sex education, homosexuality, witchcraft and the occult, “secular humanism” or “new age” philosophies, portrayals of rebellious children, or “politically incorrect,” racist or sexist language. The American Library Association has documented more than 5,000 such challenges in the United States between 2000 and 2009.
If enough people protest the challenge, the book may not be removed. But sometimes no one notices: A book is removed and stays lost to a school or community. Sometimes a parent, community member or even a librarian fearing controversy will quietly remove the book from the shelf. It is impossible to document and quantify this form of “stealth censorship.” The American Library Association estimates that between 82 and 97 percent of book challenges go unreported.
Classic literature such as Mark Twain’s The Adventures of Huckleberry Finn and John Steinbeck’s Of Mice and Men were among the top 20 most frequently challenged books from 2000 to 2009, according to the ALA’s Office for Intellectual Freedom. Of the 323 recorded challenges in 2016 (up from 275 in 2015, but down from 646 in 2000), some of the most often challenged books were those that included LGBT characters and themes.
The Pico decision
In 1975, several members of the school board from the Island Trees School District on Long Island, N.Y., obtained a list of books deemed “objectionable” by Parents of New York United, a conservative organization. The board determined that the district’s school libraries contained several titles on the list: The Fixer, by Bernard Malamud; Slaughterhouse Five, by Kurt Vonnegut Jr.; The Naked Ape, by Desmond Morris; Down These Mean Streets, by Piri Thomas; Best Short Stories of Negro Writers, edited by Langston Hughes; Go Ask Alice, authorship anonymous; Laughing Boy, by Oliver LaFarge; Black Boy, by Richard Wright; A Hero Ain’t Nothin’ But a Sandwich, by Alice Childress; Soul on Ice, by Eldridge Cleaver; and A Reader for Writers, edited by Jerome Archer.
The school district’s established policy required the school superintendent to appoint a review committee upon a receipt of a complaint about a book. Nevertheless, the board members arranged to have the books “unofficially” removed from the libraries without appointing a committee.
When word of its actions reached the news media, the board issued a press release that characterized the books as “anti-American, anti-Christian, anti-Semitic and just plain filthy.” They said the books contained “obscenities, blasphemies, brutality and perversion beyond description,” and concluded that “it is our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers.”
A committee later appointed by the superintendent determined that several of the books should be placed back on the shelves. The board rejected the recommendations of the committee and again ordered that the books be removed. Steven Pico, a 17-year-old high school student, led a group of students who sued the board in U.S. District Court, claiming a denial of their First Amendment rights. The district court found in favor of the board, citing “respect for the traditional values of the community and deference to a school board’s substantial control over educational content.” The students appealed to the 2nd U.S. Circuit Court of Appeals, which reversed the decision and sent the case back to the district court for trial. The school board then appealed to the U.S. Supreme Court.
A closely divided Supreme Court ruled 5 to 4 in favor of the students. Writing for the plurality, Justice William Brennan reasoned that the First Amendment right to express ideas must be supported by an implied right to receive information and ideas. While school officials do have significant authority to control the content of speech in schools, that power is not absolute: “’…students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.’” School officials “cannot suppress ‘expressions of feeling with which they do not wish to contend.’”
Brennan noted that the “special characteristics of the school library make that environment especially appropriate for the recognition of the First Amendment rights of students.” Nevertheless, he emphasized that his decision was a narrow one, limited to the removal of books from a school library, and not extending to the acquisition of books or their use in the school curriculum. Brennan also recognized that local school boards had “broad discretion in the management of school affairs,” and said that if a board acted solely upon the “educational suitability” of the books in question or solely because the books were “pervasively vulgar,” such actions would not be unconstitutional.
The Progeny of Pico
Since Pico, First Amendment litigation involving book censorship in schools has usually turned on the rights of a school board to control classroom curricula by prohibiting the use of certain texts and/or an inquiry into whether a certain challenged text is “vulgar.”
In 1989, the 11th U.S. Circuit Court of Appeals upheld a Florida school board’s removal of a previously approved classroom text because of its perceived vulgarity and sexual explicitness (Virgil v. School Board of Columbia County). Interestingly enough, the high school literature textbook was banned because it contained selections from Aristophanes’ Lysistrata and Chaucer’s The Miller’s Tale, two authors whose works were among the thousands banned under the Comstock Law in the late 19th century.
Since Pico was decided, a number of federal circuit courts have noted in their opinions that since Pico was a plurality opinion, it does not hold binding precedent over their decisions. However, since Pico is the only Supreme Court decision dealing with banned books in public libraries, and since there are so few other cases on point, most courts have continued to follow the Pico decision in their analyses.
In 1995, a federal district court in Kansas found that a local school board violated the First Amendment when it voted to remove a novel depicting a lesbian romance. In Case v. Unified School District No. 233, the federal court determined that the actual motivation of the board members was that they “disagreed with ideas expressed in the book” and thus “intended to deny students . . . access to those ideas.” The court looked to the highly irregular and erratic manner in which the book was removed as evidence of the board’s improper motivation. The court also noted that the fact the book was available from other sources did not “cure defendants’ improper motivation for removing the book.”
A similar issue arose in 2001 when an Arkansas school board voted to restrict student access to the Harry Potter series books because they referenced witchcraft and the occult, and promoted disobedience. The school board required any student wishing to take out a book from the series to first obtain a signed permission slip from a parent or guardian. In the 2003 case Counts v. Cedarville School District, a federal district court found the board’s claims to be unreasonably speculative, especially since no one on the board had read all of the books in the series. The court determined that “regardless of the personal distaste with which these individuals regard ‘witchcraft,’ it is not properly within their power and authority as members of defendant’s school board to prevent the students at Cedarville from reading about it.”
Most recently, however, the Eleventh Circuit in 2009 held that “the First Amendment does not require a school board to leave on its library shelves a purportedly nonfiction book that contains false statements of fact.” In American Civil Liberties Union of Florida, Inc. v. Miami-Dade County School Bd., civil liberties organizations and a local parent challenged the Miami-Dade School Board’s decision to remove the book A Visit to Cuba, and its Spanish-language counterpart ¡Vamos a Cuba!, from its classrooms and libraries. The school board argued that the book did not accurately portray the politics of the country nor the “harsh realities that exist there.” The majority applied Pico and found that the book was not removed over a disagreement of the ideas, but rather because it was factually inaccurate and thus educationally unsuitable.