9.20.2010

Speak Loudly AND Carry a Big Stick

So. Another small-minded person is trying to have three very incredible books — SPEAK by Laurie Halse Anderson, TWENTY BOY SUMMER by Sarah Ockler, and SLAUGHTERHOUSE FIVE by Kurt Vonnegut removed from a public school curriculum in MO, under the guise of Christianity. 

I am Jewish, so I cannot speak to this man’s Christian justifications, but CJ Redwine, Veronica Roth, and Myra McEntire did. And they did so beautifully. 

But as the #SpeakLoudly twitter movement gained traction, a friend of mine and fellow author asked me how it could even be possible, in 2010, to ban a book. So while I am not a Christian, I am a lawyer, and can speak about that. 




The First Amendment of our Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

But what does that actually mean? Let’s break it down. “Congress shall make no law respecting an establishment of religion;” this text, called The Establishment Clause, has been held by the Supreme Court of the United States to mean that our state and federal government cannot establish a national religion, indicate a preference for one religion over another, or even indicate a preference for religion over non-religion.  So, legally, there can be no statement from the state or federal government that declares the United States to be a Christian (or Jewish or Muslim or Buddhist) country, or even that it is “One Nation Under God.” 

The second part, called the Free Exercise Clause, has been held to mean that the government cannot prohibit me from lighting my menorah in my house on the Jewish holiday of Chanukah, though it can enact neutral laws of general applicability (i.e. Laws that illegalize the use of peyote, even though some religions use the drug in their ceremonies). 

There is so much more to say about how the Establishment and Free Exercise clauses are applied, but this isn’t a legal blog, so I’ll restrain myself, and move onto the next pertinent part of our First Amendment: that Congress shall make no law abridging freedom of speech or of the press. 

What this doesn’t mean: that all speech in any form and uttered in any place is protected. All speech is not created equal. There is core political speech, commercial speech (advertisements and commercials are two examples of these), obscene speech, speech that incites imminent danger, “fighting words,” and libel and slander. And as most of my readers are also writers, we know that copyright laws balance John Does’ “right” to copy and disseminate our words without our permission or attribution against our interest, as authors, in the works we create.  

So, now we know that not everything we say is protected. Our words are not inviolate. If I call Veronica Roth a meanie on my blog, I’d be wrong, and an idiot, but not civilly liable. But if I call her a murderer, I’d not only be wrong, and an idiot, but subject to a lawsuit, as well, because the only thing V’s ever killed are characters.  

I can’t say anything I want any old time I feel like it, and neither can you. And once we enter school property, free speech can be restricted even more, even though the Court in Tinker v. Des Moines famously held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 

But a student’s right to free speech, or the access to ideas, discussed in cases like Tinker, Bethel School District v. Fraser (1986), Hazelwood v. Kuhlmeier (1988) Guiles v. Marineau (2006) and Morse v. Frederick (2007) is weighed against the school board’s right to determine whether the student’s speech poses a substantial threat of disruption (Tinker), whether the speech is offensive to prevailing community standards (Bethel), and whether the speech, if allowed as part of a school activity or function, would be contrary to the basic educational mission of the school (Hazelwood). 

As the Court stated in Board of Education v. Pico (1982), the seminal case on book banning, local school boards have broad discretion in the management of school affairs; they can create, establish, and apply their curricula to however they see fit in order to transmit their community values, and the Court upheld their interest in promoting respect for social, moral, and political values, whatever those may be. (See, e. g., Meyer v. Nebraska, Pierce v. Society of Sisters, and Epperson v. Arkansas

HOWEVER. 

The Court in Pico also said that: 

“We think that the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library.” 

“The right to receive ideas is a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and political freedom.” 

“In sum, just as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.”

And so, the Court held that while the school board had significant discretion to determine the content of their school libraries, “that discretion may not be exercised in a narrowly partisan or political manner. If a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books. The same conclusion would surely apply if an all-white school board, motivated by racial animus, decided to remove all books authored by blacks or advocating racial equality and integration. Our Constitution does not permit the official suppression of ideas. Thus whether petitioners' removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions.” (Emphasis mine). 

And that, my friends, is how books get banned. If a school board claims that it is banning a book from the curriculum and library because it does not meet the district’s “community values,” (i.e. the books are vulgar, not educationally suitable, irrelevant, immoral, and in bad taste) and no racial, religious, or political motivation can be proven, a court may very well find in the school board’s favor. But if it can be shown that there are religious motivations behind the banning, well, that definitely impinges on the Establishment Clause, might frustrate the Free Exercise Clause, but absolutely impedes on students’ First Amendment Rights to access the free marketplace of ideas and exceeds the school board’s discretion. 

If a lawsuit were brought to challenge the ban, the court would look at the public documents and public explanations offered by the school board to justify the removal of the books. As the Court in Pico said, “This would be a very different case if the record demonstrated that petitioners had employed established, regular, and facially unbiased procedures for the review of controversial materials.”

Does the Stockton school district have established, regular, and unbiased procedures for the review of “controversial” books? 

I don’t think they actually do. But I do think they pretend to. Sherman Alexie’s Absolutely True Diary of a Part Time Indian was banned in the same district, by the same officials now considering the banning of Sarah Ockler’s TWENTY BOY SUMMER, Laurie Halse Anderson’s SPEAK, and Kurt Vonnegut’s SLAUGHTERHOUSE FIVE. And a news article stated that “Speakers who supported the original ban said it reflected community values in Stockton.”

That’s all the school board needs to prove. 

So what can be done about it, then? Here’s where I’m going to violate the “no sex, politics, or religion,” policy Myra McEntire discussed in her blog post.  But not on religious grounds. On political ones. 

Because the members of the Stockton School Board? They’re elected officials. They theoretically represent the values of the citizens who elected them. Even though we know that dozens of students, parents, and teachers showed up at the Alexie hearing to protest against the removal of the book, they were outnumbered and outvoiced by the pro-removal crowd. And short of the ACLU’s involvement, short of a lawsuit, if we are truly and honestly opposed to book banning, the only thing we can do as writers, as readers, as good parents, and good teachers is to put our ballots where our mouths are. We need to vote for local, state, and federal officials whose policies won’t support it. 

Otherwise we’re just speaking loudly, and carrying no stick. 



There is much, much more to say and discuss on this topic, so if there are questions in the comments, I’ll definitely try to answer them as best as I can, and as always, nothing in this post or on this blog should be construed as legal advice and I am not your lawyer. For some great info on the legalities of book banning, see The First Amendment Center’s Overview on Book Censorship by David L. Hudson, Jr., and Overview on Banned Books by Claire Mullaly.  

18 comments:

  1. This is a terrific breakdown, Michelle. Thank you -- helps show the (unfortunate) reality of this debate.

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  2. Oh, this was a wonderful post. Thank you for explaining the "how", because if we don't understand then how can we fight back? I wish it could be mandated that before you could vote to ban a book, you have to prove you've read it. THAT would be an interesting process.

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  3. This is fascinating. I am so glad you could provide this side of the argument to our community.

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  4. This is fascinating.

    What are the implications of the following lines in the Scroggins piece, then? "This is unacceptable, considering that most of the school board members and administrators claim to be Christian. How can Christian men and women expose children to such immorality? Parents, it is time you get involved!"

    Seems fairly religious to me.

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  5. Weronika, Leigh, and Sarah, I'm so glad you liked it. It was SO hard to write, because there is SO much more to say. Thanks, as always, for reading- it was a mammoth post!

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  6. I feel so very INFORMED now, which is spectacular. Thanks for this post!

    And also, for affirming that I am not A. a meanie or B. a murderer.

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  7. Jess- looks like we were posting at the same time :D

    I'm super glad you asked that question, because it wasn't something I had the space to get into deeply. But it comes down to this: Scroggins is NOT a member of the school board. He's an associate professor of management at Missouri State University. He was also a speaker at Reclaiming Missouri for Christ. His complaint and opinion piece in the News-Leader was just him screaming (loudly) about the books. So HIS complaint being completely, 100% religious in nature doesn't mean that the school board's decision will be, though I think that a strong case can be made that the board didn't review TWENTY BOY SUMMER or SLAUGHTERHOUSE FIVE until his religious complaint was made. (as of this posting, the News-Leader piece doesn't say that SPEAK is under review). It is going to come down on what language the school board itself uses to justify the removal of the books (if the books are removed, in the end).

    Does that help?

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  8. Veronica - one word: BODYGUARD. RAWR.

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  9. It's helpful to have a good breakdown on how books can still get banned. Thanks!

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  10. It does but it's disheartening. It seems too easy a guise - this reflects our community values. Done. Even when we can see the religious buttresses?

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  11. I needed to put on my smarty pants for this post. These elected officials that reflect the opinions of the community drive me crazy.

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  12. Deeds- glad to help!

    Jess- I feel you. And the stats in the two First Amendment Center posts I linked at the bottom are disturbing as well--for every challenged book removal, something like FOUR books are quietly removed with no fanfare at all.

    That's why I think, personally, that it's important to know who's on your school board, and learn the values of the people you're voting for, because school boards do have the discretion to choose what material is appropriate for the children in their district, and if you get the wrong board members, the kids will suffer for it. My overall message, if I could pass it along, would be for parents to get involved and stay involved, and if there are squicky board decisions being made, to hit the school board members where it hurts: at the elections.

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  13. YOU. ARE. A. GENIUS.

    Thanks for breaking it down for us.

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  14. Wonderful post.

    I will never understand how, in this case, it is taken that the thoughts of the few reflect the thoughts of all.

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  15. It is so frustrating that this is allowed, but thank you for explaining the legality behind it. You are right, we have to speak up by voting for those who will not stand for this.

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  16. Very well stated, Michelle. Thank you so much for breaking this down. Personally, I think it would be hard for anyone to refute an argument like yours, but clearly some would still try. You are intelligent and awesome in so many ways. I may possibly link to you on my blog post later this week, if you don't mind.

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  17. Great post Michelle! Public schools serve the public. If parents (or a community) are strong in their faith and instill that faith and their values in their children, I can't imagine they can believe that it can all be undone by a few books. If it can, maybe the books aren't the problem. If a parent needs to control every aspect of their child's educational experience, I suggest they consider home-schooling as an option.

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  18. Myra, Lindsay, Lisa, and Sunday - *BLUSH*. Thank you.
    Angel - thank you so VERY much, and I would not mind at all :)

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