An interesting aspect of this research is that it occurs within a grey zone of constitutional doctrine. There are rarely hard and fast answers to constitutional debates but there is usually at least some (reasonably) clear doctrine to begin the debate. A grey zone, I would argue, is a place where even the doctrine itself is unclear. The place of libraries in free speech doctrine is a great example of a grey zone. The Supreme Court (SCOTUS) has address this question exactly three times and in none of those cases has it been able to reach an official statement of the Court—meaning that no opinion has ever managed to garner the five votes necessary to make it binding precedent. Instead, what we have are three confused cases full of conflicting opinions that resolve few answers. For studies of book challenges and removals, the key case is Board of Education v. Pico (1982). Much of the following is drawn from the case and supplemented by a 1989 speech Steven Pico, the named plaintiff, delivered to school librarians.*
In the days before the Internet, I imagine most book challenges began as Pico did. In 1975, three members of the school board went to a Parents of New York United conference. This conservative organization was presumably designed to question and correct the immoral turn in American education. The board members were all given a collection of excerpts from various books that they characterized as “anti-American, anti-Christian, anti-[Semitic], and just plain filthy.” Pico reports that the board members explored the library at night and discovered 10 of the books in the various collections (and found one other in the curriculum).** The board ordered the books removed over the strong objections of the superintendent and district librarian who both noted that the district had a formal policy allowing parents and citizens to object to material, a policy that no parent had ever invoked against these books. (Pico reports that the superintendent left the district the next year and the librarian was demoted.) Instead of following policy, the books were removed and the board initiated a review process by appointing a committee made up of four parents and four school district staff. The committee recommended five books be retained, two be removed, deadlocked on two, abstained on one, and recommended one be restricted to use with a parent’s permission. The board rejected this recommendation and removed nine books and restricted the tenth to use with parental permission. It gave no reason for this decision but one can presume that it continued to see these books as they had earlier described them, as objectionable because of their controversial content. A group of parents and students filed suit arguing that the board took action because the “books offended their social, political, and moral tastes and not because the books, taken as a whole, were lacking in educational value.”
Pico reports that depositions were held to explore the reasons for banning the books. For example, The Fixer by Bernard Malamud was described as anti-Semitic because it depicted the language used by anti-Semites. A Hero Ain’t Nothing’ But a Sandwich by Alice Childress was objectionable because of the use of the word “ain’t” in the title and because of a line noting George Washington was a slaveholder. This was interpreted as bringing Washington into disrepute and, thus, was “anti-American.” The District Court concluded that the school board enjoyed nearly unlimited latitude in the control of which books were educationally suitable and rejected the constitutional argument without fact finding or a trial. The Second Circuit reversed concluding that a trial was required to discover if the school board’s reasons were justifiable or not. At this point the board became worried because their views on the books were already well-known. So at this point, on appeal to SCOTUS, the board shifted tactics. In its argument summary, the board noted that any claim of political motivation was unproved by the evidence but even if it did exist it would be irrelevant because “a public school through its curriculum is an instrument of political socialization … and all school systems carry on some form of political indoctrination in the better sense of the word.” The “better sense” of indoctrination was the board’s interest in passing on community values to students. In this framing, the books were removed because they contained vulgarity and were thus indecent. One problem that came up in oral arguments (here at about 1:05) is that one of the books contained absolutely no vulgar language. The board’s attorney fell back on bad taste as the legitimate rationale for that book and found that Justice Stevens was unimpressed by such an unrestricted standard.
SCOTUS fractured heavily in Pico. Five justices ultimately voted in favor of the parents and children but only two joined Justice William Brennan’s opinion, the only one I will discuss in depth. Brennan began by constraining the discussion to a narrow question of removal of books from a school library. He stressed that no question was presented as to curricular decisions or the acquisition of library books. As the District Court found no constitutional limitation existed on the board’s discretion, Brennan framed the issue as only whether “the First Amendment imposes any limitations upon the discretion” of the board. If it did, then reversal for trial would be necessary. As arguably the prime architect of modern free expression law, it is unsurprising that Brennan found such a constitutional limitation. The Court had long recognized that students maintain their freedom of expression rights in school, whether from a right to be free from compelled political speech or a right to engage in non-disruptive speech. The right to speak includes within it a right to receive information. “[T]he right to receive ideas follows ineluctably from the sender’s First Amendment right to send them” and “[m]ore importantly, the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights” because free speech requires the ability to acquire information. This right is particularly important in the context of a school library because a library is “a place dedicated to quiet, to knowledge, to beauty” and students must be free to explore ideas within. The board could not exercise an unfettered control over the content of the library even if it might have a similar control over curriculum.
Having found a constitutional right, Brennan turned to the test for whether the right was infringed. Precedent established that the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom” and Brennan stressed that a school’s discretion over content in the library could “not be exercised in a narrowly partisan or political manner.” “Our Constitution does not permit the official suppression of ideas.” Thus, Brennan held, the dispositive concern was whether the board “intended by their removal decision to deny [students] access to ideas with which [the board] disagreed, and if this intent was the decisive factor in [the board’s] decision.” Brennan noted that the students’ argument had conceded that a constitutional violation would not have occurred if the board removed books because they “were pervasively vulgar” or “was based solely upon the ‘educational suitability’” of the books. Brennan closed with a warning that “we hold that local school boards may not remove books … 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.”
There are issues with this analysis. The most significant, as Justice Rehnquist noted in his dissent, is Brennan’s segmented analysis of libraries: removals of books are covered by his doctrine but acquisition decisions are not. Thus, a school would be perfectly within its rights to refuse to acquire The Fixer because it disagreed with the ideas within but it could not remove on that basis. This is an odd separation as the result is the same: students will not have access to the book. The most reasonable explanation for this is pragmatism. A decision to remove a book comes with an identifiable actor, or set of actors, who can be questioned and their intent ascertained. A failure to acquire is an omission to act that is far more difficult to explore and easier to justify. The major problem with Brennan’s doctrine comes in the mention of “pervasively vulgar” and “educational suitability.” While Brennan does not actually hold that these are justifiable reasons for removal, he only notes that the students’ admitted that they would be, subsequent commenters have read this as an exception to his doctrine. One cannot remove a book because they disagree with the ideas but can if it is “pervasively vulgar” or educationally unsuitable. The problem is that we have no doctrinal guidance on what these terms mean. Both are so broad that administrators can likely create pretextual reasons for actions against a book. Challengers often cataloged the instances of profanity in books as a means of showing pervasive vulgarity, though we have no measure for when vulgarity becomes “pervasive.” “Educational suitability” is an even more fungible standard. Thus, Pico is likely to have significant impact only where the administrators in question were particularly incompetent in constructing their reasons for removing or restricting a book, as seen in this example from Davis County, Utah, I’ve discussed before. The doctrine is further weakened by the fact that Brennan wrote for only two other justices and thus did not create binding precedent—two other justices agreed that the students should win but for different reasons. This problem has been mitigated by the tendency of lower courts to apply Brennan’s logic anyway.
All of this adds up to a grey area doctrinally. There is likely a “right to read” in some sense but the doctrine is malleable and, at least in the school library context, likely not hard to meet by competent book banners. This is probably one reason why lawsuits against restrictions are so rare, I currently have only one challenge that triggered formal litigation. This does not mean that Pico is without value. The very fact that a SCOTUS opinion declared such a right gives weight to defenders of literature. From time to time, legal advisors have warned schools or libraries that adverse action against a book would be untenable in court and cost a significant sum in litigation. Governments rarely want to expend money to appease challengers. There is ideational value as well: challengers are transformed in Pico from legitimate objectors to illegitimate censors seeking to limit the rights of others. This is one reason why so many challengers speak in terms of parental rights, it provides a method of shifting the argument about who is really in favor of rights protection.
The Pico story had a happy conclusion. Pico reported that the school board returned the books to the library rather than defend their action at trial. It is likely that the board feared additional expense as litigation to SCOTUS is not cheap and continuing the fight would just compound the cost; additionally, these kinds of civil rights actions could have resulted in the school district paying the students’ legal fees as well. The case was also on shaky legal grounds making a loss more likely. The board had no reason to expect to have to defend its decision so it did not create a pretextual basis for removal based on vulgarity or suitability. Instead, the limited facts developed showed that it happily admitted to disagreeing with the ideas and tastes of the books in question and only years afterwards attempted to construct an alternative explanation. Trying to walk back these statements under cross-examination would be difficult and surrender became the only way to avoid the cost and embarrassment of a further loss. This happy ending, however, does not change the fact that the books were unavailable for seven years and, according to Pico, teachers were afraid to even mention the controversy out of fear of reprisal; this makes sense as the two officials to make a stand against the board were either replaced or demoted.
* Pico, Steven. 1990. “An Introduction to Censorship.” School Library Media Quarterly (Winter): 84-87.
**SCOTUS provided the following footnote on the books: “The nine books in the High School library were: Slaughter House 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, of anonymous authorship; Laughing Boy, by Oliver LaFarge; Black Boy, by Richard Wright; A Hero Ain't Nothin' But A Sandwich, by Alice Childress; and Soul On Ice, by Eldridge Cleaver. The book in the Junior High School library was A Reader for Writers, edited by Jerome Archer. Still another listed book, The Fixer, by Bernard Malamud, was found to be included in the curriculum of a 12th grade literature course.”