These types of actions are known as “book bans.” They are also often referred to as “censorship”.
But the concept of censorship, as well as the legal protection against it, is often greatly misunderstood.
Politicians have also proposed legislation banning books, which some lawmakers and parents are considering too ripe for school-age readers, like “All boys are not blue’, which explores queer and consent issues. The classic by Nobel Prize winner Toni Morrison “The bluest eye‘, which includes themes of rape and incest, is also a common target.
In some cases, politicians have proposed criminal prosecutions by librarians in public schools and libraries to keep such books in circulation.
Most books set to be banned in 2021, says American Library Association, “Were by or about Black or LGBTQIA+ people.” State lawmakers have also targeted books they believe induce guilt or anxiety in students based on their race or imply that students of any race or gender are inherently bigoted.
There are also some attempts on the part of the political left to campaign for book bans exclusion from the school curriculum of books that marginalize minorities or use racially insensitive language, like the popular To Kill a Mockingbird.
Whether these efforts amount to unconstitutional censorship is a complex question.
The First Amendment protects individuals from the “restriction of freedom of speech.” However, government actions that some might view as censorship – particularly in relation to schools – are not always clearly classified as constitutional or unconstitutional, as ‘censorship’ is a colloquial term and not a legal term.
Some principles can help determine if and when a book ban is unconstitutional.
Censorship is not against the constitution unless the government does.
For example, when the government tries to ban certain types of protests on the basis of the law alone position of the protesters, this is an unconstitutional restriction on speech. The government cannot legislate or allow court cases to prevent you from having certain books on your bookshelf unless the content of those books fits into a narrowly defined unprotected language category such as obscenity or defamation. And even these unprotected categories are defined in a precise way that is still very language-protective.
However, the government may issue appropriate regulations thattime, place or type’ of your speech, but usually neutral in content and point of view. The Government therefore cannot limit a person’s ability to produce or hear a speech based on the subject of the speech or the opinion expressed.
And when the government tries to restrict speech in this way, it likely constitutes unconstitutional censorship.
What is not unconstitutional
In contrast, when individuals, businesses, and organizations create policies or engage in activities that suppress people’s ability to speak, these are private acts not violate the constitution.
Nonetheless, private actions can have a major impact on a person’s ability to express themselves freely and to produce and disseminate ideas. For example, book burning or the actions of private universities in punitive faculty for sharing unpopular ideas thwarts free discussion and the free creation of ideas and knowledge.
When schools can ban books
Whether the current cases of book bans in schools are constitutional is difficult to say – or not. The reason: decisions made in public schools are analyzed differently by courts than censorship in non-governmental contexts.
Control of public education, according to the Supreme Court, is largely “state and local authorities.” The government has the power to determine what is appropriate for the students and therefore the curriculum at their school.
However, students retain some First Amendment rights: Public schools may not censor student speech on or off campus unless it causes a “significant disruption.”
There are exceptions to the government’s power over the curriculum: the Supreme Court, for example, ruled that a state law prohibiting a teacher from teaching evolution is unconstitutional because it does violate the settlement clause of the First Amendment, which prohibits the state from supporting a particular religion.
School boards and state legislatures generally have the final say over what school curricula teach. Unless the policies of States violate another provision of the Constitution – perhaps protection against certain types of discrimination – they are fundamentally permissible under constitutional law.
Schools with limited resources are also free to choose which books to add to their libraries. However, several members of the Supreme Court have written that the removal is constitutionally permissible only if it is done on the basis of the book’s educational adequacy, but not because it was intentional deny students access to books that school officials disagree with.
book ban is not a new problem in this country – is still strong public criticism of such measures. And although the government has discretionary control over what is taught in schools, the First Amendment safeguards the right to free speech for those who wish to protest what is happening in schools.