Reader Mail: Is Book Banning Constitutional?
I received an email asking an interesting question about whether book banning is constitutional under the First Amendment. (I also received this a while ago and took too long to get to this). As I often joke, there are rarely easy answers to these questions. This reader specifically referenced the banning of 22 books in Alpine School District in November 2023. Sadly, the banning in Alpine is (probably) constitutional.
“I’m still a bit confused about how schools won’t be violating First Amendment laws. Especially since the State School Board allowed school districts to come up with their own process for reviewing school library books, which it looks like that’s what ASD did and then officially banned 22 titles. I guess what I’m trying to understand is did ASD come up with an illegal process? Or is HB374 illegal?”
The reigning Supreme Court opinion on book removals from school libraries is Board of Education v. Pico (1982). I wrote about this almost four years ago here and won’t repeat myself too much. The gist of it is that Justice Brennan’s opinion in Pico found removal of books to raise constitutional concerns. Such removal would be unconstitutional if the school “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 suggested that if the books were removed for being “pervasively vulgar” or educationally unsuitable then it would be constitutional; contrary to popular wisdom, he did not hold that this was the case, it was just that the students’ argument in Pico conceded that it would be constitutional. One limitation is that Brennan’s opinion was only a plurality opinion and thus did not create binding precedent. Despite this, nearly every case since heard in lower courts have used his opinion as the precedent because the Supreme Court has not issued any other guidance in the area. These lower courts have also treated vulgarity and educational suitability as legitimate grounds for removing books.
The fact that the law is so vague and undeveloped has meant that the few victories against book bans have unusually clear facts. For example, school board members who required parental permission to access Harry Potter explicitly testified that if the book was sufficiently Christian, in their view, then it would not have been removed. Similarly, when the Olathe, Kansas, School Board removed Annie on My Mind, the board members repeatedly asserted that the book about lesbian teens living normal lives was educationally unsuitable. But on cross-examination they revealed that this just meant that any depiction of a gay teen was dangerous. One even testified that gay fiction is always inappropriate and she would only allow “factual” books documenting “[t]hat it is a very difficult lifestyle, if it is chosen” and that it “can affect them physically mentally, socially, and emotionally.” As the District Court found, this testimony made clear that the ban was driven solely by a desire to hide any story of happy gay teens and this violated Pico.
So where does that leave Alpine? Well without the clear kind of admission that the ban is driven by some specific objection to the nature of the books, it is probably constitutional. The reality of Pico is that it is easy to justify a lot of book removals, officials just have to not be idiots (as the examples above were). This is one reason why lawsuits against book bans are rare, until recently the last one was a decade ago (here in Utah!) and again represented an absurd justification that the school knew wouldn’t survive a trial. There are a few going on now and the furthest along, I believe, is against the Wentzville School District in Missouri. The District Court there recently refused to issue a preliminary injunction noting that the law wasn’t clearly against the removal. One of the books removed was Alison Bechdel’s masterpiece Fun Home, which depicts oral sex on a few pages, and the court noted that while a librarian could conclude that it was fine for high schools, this was not the only logical outcome and it would not assume that removal was based only a pretext to justify homophobia. I’ve written an article on two earlier attempts to remove Fun Home that make the same basic point. Frankly, Pico only requires a pretty thin justification to make it probable.
A much better candidate for legal challenges are districts like Keller ISD in Texas that recently banned all books mentioning “gender fluidity,” meaning any books with trans characters. There is no way to justify this as anything other than transphobia. It would be much easier to win this lawsuit. And the Federal Government is currently investigating Granbury ISD, also in Texas, for potential Title IX violations because, in part, the superintendent ordered removal of all LGBTQ books. This is another great strategy as attacks on LBGTQ stories is part of an attack on LGBTQ people. However, this strategy will end in the next Republican administration as the Republican Party is happy to support the erasure of queer people as well.
So the Alpine removal is probably constitutional absent some really clear smoking gun. The question references HB374 passed last legislative session here in Utah. As I wrote last summer, HB374 didn’t actually do anything. I explained this in my first response to the Attorney General’s office guidance, the law just states largely what was already required: schools aren’t allowed to provide obscene material to minors. But as I explained there and in so many other places in this blog (and in an upcoming paper): none of these books are obscene as to minors. (The Utah AG then issued a new guidance under political pressure that again basically admits that the law did little but that Pico doesn’t limit removal a whole lot.) HB 374 is more about fear and threats. It raises the specter of law to threaten teachers, librarians, and school administrators to bend to book banners or else. And it is working as more districts remove the books that these challengers refuse to even read. And sadly even this isn’t enough as pro-censorship members of the legislature, like Karianne Lisonbee (who also supports child torture) and Ken Ivory want to make even broader content bans. I worry that a supermajority Republican legislature will make it even easier to scrub stories of people of color and LGBTQ people from library shelves. Sadly, the First Amendment may not provide much cover in this situation, especially when the ultimate arbiter is a six member conservative Republican majority Supreme Court.
