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)
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.