Counts v. Cedarville School District

Following citations within citations, I continue to stumble upon legal cases that demonstrate how seriously the courts take even small infringements on Free Speech in libraries, and that demonstrate that the interpretations of law offered by the wanna-be censors are deeply flawed. An important case in this category is Counts v. Cedarville School District, decided in 2003 by the US District Court in the Western District of Arkansas (295 F.Supp.2d 996).

After a parent's request for reconsideration of Harry Potter and the Sorcerer's Stone, the school board governing the Cedarville, Arkansas, school district had some concerns about this and other novels in the popular Harry Potter series. They began following their own established procedures by forming a review committee. But when the committee unanimously recommended retaining The Sorcerer's Stone, the school board ignored that input and voted to restrict access to the entire series then in the library. The result was that the books were visible to students in the library but were not accessible, and could not be read in the library. Students were allowed to check the books out only if they had a signed permission slip from a parent or guardian.

A student named Dakota Counts, together with her parents, sued the school board on Free Speech grounds, and won. The court ordered the books back into unrestricted access at the school library (and ordered the school board to pay the legal fees).

One of the things that makes this case interesting is that the idea of requiring parental permission before allowing minors to access some books is a frequent part of censorship campaigns. Censors claim that this is not censorship, because access is only restricted, not completely eliminated. Here we have an example where the court has ruled clearly and unambiguously against that concept:

. . . the Court finds that Dakota Counts' First Amendment rights are being infringed by defendant's decision to restrict access to the Harry Potter books to those students whose parents sign a permission slip allowing them to check out the books.

Note whose rights it is that the court says were infringed.  It was the rights of the student herself, a minor, not of her parents.  Court documents do not state Dakota Counts' age, but online news about the case state that she was a fourth grader.

To appreciate the full impact of this decision, one must take note of the extremely small scope of the censorship that took place. Only a handful of books in one school library were affected. Also, the board argued in court, the student was not really denied anything, since she personally owned several of the Harry Potter books, and her parents had signed the permission slip allowing her to check the books out from the school library. The court rejected this argument for two reasons. First, the district court cited the Supreme Court's decision in Reno v. ACLU, and concluded that the availability of a book in one place does not alter or remedy any restrictions on access in another place:

The fact that Dakota has access to the books at home does not undermine this decision. The Supreme Court has held that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”

Second, the court pointed out that the access restrictions placed a "stigma" on these books:

[The court] finds that the stigmatizing effect of having to have parental permission to check out a book constitutes a restriction on access. Further, the fact that Dakota cannot simply go in the library, take the books off the shelf and thumb through them-perhaps to refresh her mind about a favorite passage-without going through the permission and checkout process is a restriction on her access.

As in other cases, the court here gave careful consideration to the motivations behind the censorious action. The board claimed they were restricting access because the Harry Potter books might encourage disobedience and disrespect for authority. The court did not believe the board's claim, considering some of the discussions that took place between board members prior to their vote to restrict access to the books. The court concluded that the board's real motivation was religious, and found that to be an improper motivation for censorship. The important point to remember is that courts can and do consider the motivations behind censorship attempts, and will use the available evidence to assess whether the claimed motivations are honest as well as applicable.

Given that a school board has regulatory powers over a school library that nobody has over a public library, it is clear from this case that access restrictions such as requiring parental permission cannot be applied to protected speech in a public library. It is clear that even small infringements on Free Speech, involving narrow restrictions to only a handful of books in a single library, are taken seriously by the courts and will be overturned.