The Bluest Eye

The Bluest Eye is a unflinching look at racism, poverty, damaged self-esteem, the internalization of hatred, and the psychology of misplaced rage.  It is a tough look at people in tough situations, willing to confront human foibles as well as strengths. The Bluest Eye is widely used as a teaching tool in high schools and colleges, and even has its own Spark Notes (a students' guide to literary works) volume and web page.

The author, Toni Morrison, is an eminent American writer, with an MA in English from Cornell and an honorary doctorate from Oxford University, a winner of a Pulitzer Prize and a Nobel Prize for Literature.  She is noted for other tremendously successful books, including Song of Solomon and Beloved.  The standing of the author alone makes this a significant work.  Nonetheless, this book stands on its own two feet as a literary achievement and a profound social commentary.  

Once again I have to thank the would-be censors for calling attention to worthy literature.  I only read this book because it was challenged, and I have been enriched by that experience.

As with almost any worthwhile literature, this book will make some readers uncomfortable.  Included among its many diverse themes are sexualized violence, rape, and incest.  These, more than anything else, have caused some parents to object to the use of the book in high school curricula.  The Bluest Eye is listed as 34th on the American Library Association's list of the 100 Most Frequently Challenged Books 1990-1999.   More recently, it made it onto the top-ten list of challenged books in 2006, was challenged in 2008 at the Burke County, North Carolina, school district, and in 2009 at the Delphi Community high school in Delphi, Indiana. The Delphi case is quite refreshing compared to many others.  For one thing, the school board formed a review committee, who read the book in order to make an informed decision  instead of relying on mere innuendo.  As so often happens when people actually read a challenged book, the committee saw the book's literary value and recommended keeping it in the classroom curricula.  The second refreshing thing about the Delphi case is that the school board actually followed the review committee's recommendations and kept the book, unlike so many other cases, in which school boards have made political choices to override the review committees they appointed.

Speaking of challenges by people who haven't read the book they're challenging, disinformation about The Bluest Eye has taken on a life of its own on the internet.  It has, for example, become almost automatic now for would-be censors to proclaim that this book exposes young minds to bestiality.  There is, of course, no description of any such act in the book.  The evolution of this disinformation is quite plain.  The book does, exactly once, contain the word bestiality, without any description of what that term means, mentioning it as something a particular character cannot imagine or do.  No doubt, someone wishing to disparage the book claimed that it contained bestiality.  The first person making that claim surely knew that he was saying it contained the word without any description of the act, and surely knew quite well that others would misinterpret his statement as meaning the book contained such a description.

So typical of book challenges: once the disinformation is established anywhere, it is repeated and legitimated by those who don't read but want to tell those who do read what they can't read.

A Different Kind of Book Challenge

An unusual book challenge came up recently at a public library in Cheshire, Connecticut.  This challenge is unusual because there are no claims at all being made about obscenity, age-inappropriateness or the like.  Instead, the Cheshire challenge is about the raw emotions of a community traumatized by a violent criminal act.

The library director recently decided that the library would acquire two copies of In the Middle of the Night: the Shocking True Story of a Family Killed in Cold Blood, by Brian McDonald.  The book is one journalist's attempt to tell the story, from the perspective of one of the alleged perpetrators, of a gruesomely violent home invasion and murder that took place in the Cheshire community.  The director made a reasonable selection choice, given that the book a) deals with the recent history of the community served by the library and b) some patrons had requested the book.

A firestorm of controversy erupted, though, when some residents objected to the library's decision to acquire the book.  Emotions about the crime understandably run high, and some citizens would prefer not to be reminded of it.  While the community seems split on the subject, some of those who want to keep the book out of the library have been strenuous and vocal in their opinion.  They've accused the director of having dictatorial power over book selection, even as the director has tried to resist the challengers' attempts to take over control of that process.

A measure of the emotion involved can be seen in the heated rhetoric on some of the news blogs about this issue, and also in the red herring issues raised by the book challengers.  They've tried to claim, for example, that having the book on the shelf violates a judge's existing gag order limiting press discussion of the criminal case against the alleged perpetrators, or will taint the pool of possible jurors who might one day be called to that trial.  It is obvious that this is just a dodge, since the book will be available outside the library, and just having the book in the library doesn't mean every citizen will read it. Even if there were some validity to this argument, it would be for a judge and court to deal with, not a librarian or the general public.

When the distracting and empty rhetoric is cast aside, we're left with a reasonable selection decision made by a library, supported by some residents and objected to by others.  The objectors want to claim some kind of veto power over the library and it's director, or some kind of line-item control over the expenditure of tax dollars, neither of which can be justified ethically or legally

Given the status of a public library as a limited public forum, a place with very stringent protections against censorship, I suspect a judge would call the citizen's attempt to override the library director's decision a heckler's veto.  A heckler's veto is an attempt to limit speech by or on behalf of a hostile audience, and courts have generally disallowed it.

News media closer to Cheshire have given a loud voice to the book challengers, but media in other parts of Connecticut have tended to to support the library director as a defender of Free Speech, who thankfully had enough backbone to stand up to the would-be censors.  See my web page on this subject for links to news and other details.

The local Library Advisory Board will meet on November 16th to discuss the matter and perhaps to make a recommendation.  If I understand the situation correctly, they can only advise, rather than order.  Meanwhile, it now (as of 29 October) appears that at least one of the copies of the book ordered by the director has arrived.  That changes things quite a bit, since now we're talking about REMOVING a book from the library, rather than SELECTING a new book -- a distinction that has weighed heavily in a number of court cases on Free Speech and libraries.

Jessamine County Public Library in Kentucky

Two library employees in Nicholasville, KY, were fired for refusing to allow a child (apparently 11 years old) to check out the Black Dossier issue of the League of Extraordinary Gentlemen series of graphic novels (comic books for grown ups).  The series is written for adults and older teens, and was classified in the Jessamine County Public Library as General (i.e, "adult") fiction, not Juvenile or Young Adult.

That library's policy allows any patron to check out any library book, and states that it is a parental responsibility, not the responsibility of the library staff, to supervise their own children's reading.  The fired employees were aware of the policy and made an informed choice to violate it.

News coverage of this controversy has been a bit vague, failing to specify exactly which issue out of the series was involved, what about that issue was considered too adult by the library employees, and what the opinion of the parents of the child denied the book was.  A reporter identified the Black Dossier issue as the one in question in a response to my emailed question.

Black Dossier is different from the other challenged books I've reviewed on this blog.  Every other book I've looked at here was clearly within the realm of protected speech for any age group, and claims about pornography and sexual explicitness were perfectly ridiculous.  Not so Black Dossier.  On reviewing this volume, I found that, in a comic-book sort of way (drawings, not photographs), it depicted nude people, some of them engaging in sexual activity (you can generally see what they're doing, although you can't see the specific body parts involved).

In a legal sense, the book probably has serious value, as it makes wry commentary on politics and social foibles.  It is also unlikely to be prurient, since the illustrations probably don't appeal to an unhealthy interest in sex or bodies.  That means that although some readers will definitely find this book "patently offensive,"  it probably doesn't meet the legal definition of obscenity.  In other words, in spite of what many will find objectionable, perhaps even indecent, the book qualifies as protected speech.

Potentially, a book like Black Dossier could be the basis of a legal test that might allow some additional restrictions -- perhaps age-determined check-out limits -- on SOME books in public libraries.  If I understand the legalities correctly, that would involve classifying the book as Harmful to Minors.

Harmful to Minors, as a legal term, does NOT mean just anything that is age-inappropriate.  Harmful to Minors is a sub-category of obscenity, meaning "obscene with respect to minors."  It is a category that allows some access restrictions to be put in place, provided that the access of adults, for whom the material is not obscene, is not significantly impacted.

Harmful to Minors is a difficult legal category to work with, and going down this path could be a real Pandora's box. Its legal definition requires that all three aspects of the obscenity test -- prurience, patent offensiveness, and lack of serious value -- be evaluated by the standards of a minor.  The work, then, would have to provoke an unhealthy interest in sex or bodies in a minor, be patently offensive to a minor, and lack value for a minor.  Any application of the category to library materials would have to be very narrowly and carefully defined to pass constitutional muster, and it is likely that some kind of judicial oversight would be basic to the process.  It is also unclear what specific kinds of age grading could be imposed, given that the perspective of a 6-year-old on these standards is quite different from that of a 16-year-old.

I'm not saying that this or any library should proceed on this basis.  Most likely, doing so would require a willingness to test the process in court, and that could get expensive.  It is possible to imagine, however, that a court decision in the future might permit a system of age-graded access for some kinds of materials.

For the present, though, I'm not sure that the library can do any more than it has already done.  Their existing policy appears to my non-expert eye to comply fully with Free Speech law, and any changes in that policy would have to be carefully evaluated against First Amendment protections.

For links to news coverage and other information, see my web page on the subject at www.BannedInWestBend.info.

Street v. New York

In a 1969 case known as Street v. New York (394 US 576), the U.S. Supreme Court upheld the Free Speech rights of a citizen to burn a U.S. flag as a form of political expression. The important legal point in this case is one often overlooked or denied by censorship proponents: that the right of Free Speech means that some people are going to be offended by what others say, and the simple fact of that offense in no way legitimates the suppression of protected speech. As the court found in this case:

It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.

Butler v. Michigan

A Supreme Court decision frequently and heavily cited in other Free Speech cases is Butler v. State of Michigan (352 US 380), decided back in 1957 and still cited today. The decision overturned the conviction of one Alfred E. Butler, who had been found guilty of breaking a Michigan state law prohibiting the production, possession, or distribution of any literature, image, or recording "containing obscene, immoral, lewd or lascivious language, or obscene, immoral, lewd or lascivious prints, pictures, figures or descriptions, tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth . . . ." Mr. Butler had sold a book meeting these criteria to a police officer, and upon conviction was fined $100.

The US Supreme Court held that the state law was far too broad, largely because the law restricted adult access to materials that were inappropriate only for children.

It is clear on the record that appellant was convicted because Michigan . . . made it an offense for him to make available for the general reading public (and he in fact sold to a police officer)a book that the trial judge found to have a potentially deleterious influence upon youth. The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig.

. . .

We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual, now enshrined in the Due Process Clause of the Fourteenth Amendment, that history has attested as the indispensable conditions for the maintenance and progress of a free society.

Lake County, Florida, Still in Play?

I did hear from two of the five commissioners in Lake County, Florida, and they felt that the commission was unlikely to censor any books.  In spite of this, news media continue to report that the commission is considering various options, including the possibility of some kind of warning label on some Young Adult books.  See today's story in the Orlando Sentinel.  Part of the problem, of course, is that the commissioners don't all have a common understanding of what "censorship" is.

The good news, according to the Sentinel, is that the commission is waiting for a legal memo from the county attorney.  Hopefully, the attorney will correct any misunderstandings that the commissioners might have.

Open Letter to Lake County Commissioners

An Open Letter to the County Commissioners of Lake County, Florida

Regarding Censorship in the Leesburg and Lake County Library Systems.

22 October 2009

Dear Commissioner:

I have been following the recent Leesburg library controversy, in which some parents have objected to certain library books.  I recently read, in the Daily Commercial, that the Lake County commissioners are considering what action, if any, to take, as that controversy has expanded to include other libraries within the Lake County system.  I wish to submit for your consideration some legal and practical information that I think highly relevant.  I am writing as someone who has studied at some length a number of recent attempts at censorship in public libraries, but I must state at the outset that I am not an attorney.

In my opinion, the action taken by the Leesburg library is the maximum any public library can do toward accommodating parental concerns about materials that some might find objectionable but that do not rise to the legal definition of obscenity.  The Leesburg compromise has the library split their Young Adult collection into two distinct parts based on the age of the intended audience of each book.  This provides concerned parents with some guidance as to the age-appropriateness of each book, but imposes no access restrictions, creates no stigma, and does not discriminate on the basis of book content.  They have found the only legal channel, a narrow one indeed, that allows the library to accommodate some of the parental concerns.

This compromise seems not to have satisfied the book challengers, however.  The complaint of the challengers is that within each of the two collections (Young Adult and High School), minors may still find books that the parents consider objectionable mixed with books that the parents find acceptable.  This is undoubtedly true, and I submit that the amount of work this compromise imposes on library staff is a pointless waste of time and tax dollars, given that the book challengers have not been satisfied by it.

Beyond this limited compromise, the kinds of access restrictions demanded by the book challengers are likely to violate First Amendment protections of Free Speech, resulting in a costly lawsuits against the libraries and the cities or counties that run them.  It is  quite unlikely that any of the library books currently challenged in Lake County meet the legal definition of obscenity, the legal definition being quite a bit more rigorous than that in common usage.  That being the case, these books fall into the category of "protected speech," meaning that the right of citizens to access those books cannot lightly be infringed.  Please take note of a US District Court finding in "Sund v. City of Wichita Falls" :

The Wichita Falls Public Library, like all other public libraries, is a limited public forum for purposes of First Amendment analysis. . . . In a limited public forum, the government's ability to restrict patrons' First Amendment rights is extremely narrow. Thus, the City cannot limit access to library materials solely on the basis of the content of those materials, unless the City can demonstrate that the restriction is necessary to achieve a compelling government interest and there are no less restrictive alternatives for achieving that interest.

You should be aware that courts have found that when it comes to protected speech in libraries, even restrictions that appear quite small to the layperson can amount to an unlawful infringement upon Free Speech.  In "Right to Read Defense Committee v. School Committee of the City of Chelsea" the court termed the removal of a single title from the school library a "ban," and ordered the book returned to the shelves.  In "Sund v. City of Wichita Falls" the court used the term "censorship" to describe the re-shelving of two children's books from the children's section to the adult section of a public library, and ordered the books returned to the children's section without restrictions.  In "Counts v. Cedarville School District" the court found, among other things, that requiring a signed parental permission slip to access "Harry Potter" books was a violation of Free Speech rights, and ordered a halt to the practice.

Unlike a school or nursery, a public library has no authority to act as a parent to any minor. It is not up to a library or librarian, then, to determine which books any given child may or may not read.  This is a right each parent holds with regard to his or her own children, but not with regard to anyone else's children.  This right is also a responsibility, a burden that courts have clearly stated must be borne by the concerned parent.  As the US District Court wrote in Sund v. Wichita:

Moreover, if a parent wishes to prevent her child from reading a particular book, that parent can and should accompany the child to the Library, and should not prevent all children in the community from gaining access to constitutionally protected materials. Where First Amendment rights are concerned, those seeking to restrict access to information should be forced to take affirmative steps to shield themselves from unwanted materials; the onus should not be on the general public to overcome barriers to their access to fully-protected information.

I ask the commissioners to give careful consideration to the First Amendment issues that relate to any decisions made about public library holdings and procedures, and where appropriate, to seek guidance from an attorney with expertise in the area of Free Speech law as it applies to public libraries.  I ask you to consider carefully that the mission of any public library is to serve a diverse community with varying opinions about what is and is not objectionable material.  I ask you to consider the fiscal impact of civil action against the library and local government that might result from an infringement on the First Amendment.  Above all, I ask you to respect the right and responsibility of each parent to choose for his or her own child, and not anyone else's, what that child may read.

Thank you for your time and consideration.

Erznoznik v. City of Jacksonville

In a 1975 case called Erznoznik v. City of Jacksonville (422 U.S. 205), the U.S. Supreme Court overturned a city ordinance that prevented drive-in movie theaters from showing films that included nudity, if the screen was visible outside of the theater's parking area. The city argued, among other things, that the ordinance was a valid means of protecting children. While acknowledging that the city could limit some forms of expression visible to the general public, the court overturned the ordinance because it was overly broad, failing to distinguish between protected and unprotected speech. The ordinance prohibited showing any nudity, even if the movie that contained the nudity did not meet the legal definition of obscene. In other words, the ordinance placed an unacceptable burden on protected speech.

This case calls attention to legal principles often overlooked, intentionally or otherwise, by censorship proponents:

• Nudity, per se, has legitimate artistic and educational uses. It is not automatically obscene, and therefore can be protected speech
• Even when motivated by legitimate concerns, government agencies must carefully distinguish between unprotected speech and protected speech.
• Even minors have First Amendment rights to receive protected speech

Quoting the court:

In this case, assuming the ordinance is aimed at prohibiting youths from viewing the films, the restriction is broader than permissible. The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited. Rather, it sweepingly forbids display of all films containing any uncovered buttocks or breasts, irrespective of context or pervasiveness. Thus it would bar a film containing a picture of a baby's buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach. Clearly all nudity cannot be deemed obscene even as to minors.

. . .

It is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults. . . . Nevertheless, minors are entitled to a significant measure of First Amendment protection, . . . and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.

. . . .

In concluding that this ordinance is invalid we do not deprecate the legitimate interests asserted by the city of Jacksonville. We hold only that the present ordinance does not satisfy the rigorous constitutional standards that apply when government attempts to regulate expression. Where First Amendment freedoms are at stake we have repeatedly emphasized that precision of drafting and clarity of purpose are essential.

And now Lake County, Fla?

I've opined before on this blog about attempted library censorship in Leesburg, FL., motivated in large part by Bermudez Triangle and books in the Gossip Girl series.  That debate recently came to an uneasy compromise in which the library agreed to split it's Young Adult collection into two, creating a separate collection for high-school-aged teens.

Unable to resist stepping into a political fray, the government of Lake County, which contains Leesburg, is now considering requiring similar action within the seven libraries of the county system.  I guess they'll have to be reminded of the Counts v. Cedarville and Sund v. City of Wichita Falls court cases.

Censorship begets censorship, of course.  With each new incident I see the wisdom in vigorously resisting any censorship attempts: giving an inch just makes the censors demand a mile.

Click HERE to see the news on DailyCommercial.com

The Dirtiest Word?

In Cohen v. California, 403 U.S. 15 (1971), the U.S. Supreme Court overturned the conviction of a man who wore a jacket with the slogan "eff the draft" written on it (the "eff" word was fully spelled out on the jacket). In this widely cited decision, the court found that the four-letter word, per se, was neither obscene nor amounted to "fighting words," and was therefore speech protected by the First Amendment. This is an important legal point often overlooked by censorship proponents, who incorrectly assume that the mere presence of tabooed words on a page can make it legal to restrict access to such expression. The courts say otherwise.

How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

....

Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.

Sable Communications v. FCC

In a 1989 decision titled Sable Communications v. Federal Communications Commission (492 US 115), the US Supreme Court invalidated part of a federal law that prohibited "dial-a-porn" telephone messaging services. The law made it a crime to transmit commercial telephone messages that were either "obscene" or "indecent."

The court drew a sharp distinction between speech that meets the legal definition of "obscene" and speech that is "indecent" (sexually charged but not rising to the level of "obscene"). The court held that obscene speech could be restricted, but that merely indecent speech was protected by the First Amendment. This is an important distinction often overlooked by censorship proponents, who often, and quite mistakenly, jump to a conclusion that they can restrict any speech with sexual content.

The court acknowledged a legitimate governmental interest in protecting children from speech that might be obscene with regard to minors, but not obscene for adults. However, the court emphasized here, as it has in other cases, that such restrictions must be very narrow, carefully distinguishing what is and is not restricted, and carefully protecting the rights of adults to receive protected speech (even if that protected speech is indecent). This, too, is a critical point often passed over by the would-be censors. They act as if a "compelling state interest in protecting children" trumps any and every other consideration at law. It doesn't. Courts always couple that "compelling interest" clause with an "and" to a statement requiring that the compelling state interest infringe as little as possible on the Free Speech rights of both adults and minors.

In the words of the court:

Sexual expression which is indecent but not obscene is protected by the First Amendment. . . . The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. We have recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. . . .

The Government may serve this legitimate interest , but to withstand constitutional scrutiny, "it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Admendment freedoms." . . . It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends.

It's a Question of Motivation

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. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners' decision, then petitioners have exercised their discretion in violation of the Constitution.

--U.S. Supreme Court in Board of Education v. Pico, 457 U.S. 853 (1982). The term petitioners here refers to the school board, and respondents to the students and parents suing the school board for removing books from the school library. If we replace petitioner with the board and respondents with students we get:

Our Constitution does not permit the official suppression of ideas. Thus whether the board's removal of books from their school libraries denied students their First Amendment rights depends upon the motivation behind the board's actions. If the board 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, then the board have exercised their discretion in violation of the Constitution.

Banned and Censored?

Censorship proponents often claim that removing or re-shelving a handful of books here or there isn't serious enough to be called "banning" or "censorship." I've argued against that view in a number of posts on this blog.  I want to make it clear, however, that this is NOT just a difference of opinions about the proper use of terms like "ban" and "censorship."  The fact is that judges have established the usage of those terms in formal decisions, and have applied those terms to very small infringements upon Free Speech. The censors are trying to deny the court-established definitions of these terms. Consider the following two examples.

The issue in Right to Read Defense Committee of Chelsea v. School Committee of the City of Chelsea was the removal of a single title, Male and Female Under 18, from one school library. The US District Court in Massachusetts repeatedly referred to this as a "ban," including this example:

The most effective antidote to the poison of mindless orthodoxy is ready access to a broad sweep of ideas and philosophies. There is no danger in such exposure. The danger is in mind control. The Committee's ban of the anthology Male & Female is enjoined. [Emphasis added.]

In Sund v. City of Wichita Falls, Texas, Heather Has Two Mommies and Daddy's Roommate weren't even removed from the library, but just re-shelved out of the children's section into the adult section.  The US District Court for the Northern District of Texas referred to this a "censorship" over and over, including this:

. . .the Library Administrator of the excellent Library in Wichita Falls. . . . is the real heroine of this unfortunate story of the censorship of two children's Books-and the unconstitutional interference with her ability to perform her duties in running the Library as a trained, skilled, and very competent professional. [Emphasis added.]

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.

Not In Front of the Children

Not in Front of the Children, by Marjorie Heins. New York: Hill and Wang (2001).

An attorney with special expertise in the area of Free Speech and Censorship, Marjorie Heins meticulously explores here the underlying assumptions behind many forms of censorship in the United States. One can learn a great deal about censorship and the law from this book, but that is a side effect, not the main theme. The author's primary goal is to explore the nature of childhood itself, of the presumption of innocence, and the ways in which minors might -- and really might not -- be harmed by the materials many adults don't want them to see.

A great many assumptions about the nature of childhood and the way children might be harmed by violence, vulgarity, or sex in books must all be true if censorship is to be justified in the name of protecting children. Yet these assumptions mostly go unanalyzed, often even unarticularted, more instinctual than reasoned. Often, the most vociferous censors are the least able to explain how the books they want suppressed present any danger, or to offer a practical set of standards as to what kinds of book content are or are not "harmful."

This book is more about innocence, society, and the development of children into good citizens, than it is about the legalities of censorship. While some readers will find themselves more open to the author's point of view than others, all will come away with a clearer understanding of the censorship debate, a better grasp of the assumptions that motivate censorship and resistance to censorship.

Some quotes from the authors conclusion sum up her arguments well:

Intellectual protectionism frustrates rather than enhances young people's mental agility and capacity to deal with the world. It inhibits straightforward discussion about sex. Indeed, like TV violence, censorship may also have "modeling effects," teaching authoritarianism, intolerance for unpopular opinions, erotophobia, and sexual guilt. Censorship is an avoidance technique that addresses adult anxieties and satisfies symbolic concerns, but ultimately does nothing to resolve social problems or affirmatively help adolescents and children cope with their environments and impulses or navigate the dense and insistent media barrage that surrounds them. [p. 257]

Obviously, very young children have little capacity to enjoy the blessings of First Amendment intellectual freedom. But most of the harm-to-minors debate concerns children beyond the "age of reason" (about 7) and teenagers, at whose socialization "ethical and moral development" arguments are primarily directed. [pp. 258-259]

Harm-to-minors censorship frequently fails to make these age- and maturity-based distinctions. Too often, it merges toddlers, grade schoolers, and teenagers into one vast pool of vulnerable youth. If a First Amendment difference is to be maintained between minors and adults, there ought at least to be more thoughtful and finely calibrated judgments about it. As the Supreme Court has said, constitutional rights "do not mature and come into being magically only when one attains the state-defined age of majority."* [p. 259]

*The quote within the last quote is from Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 74 (1976).

Thanks to Kristin Pekoll, West Bend's Young Adult librarian, for writing up her recent experience confronting censorship in her library. And thanks to blogger NotEmily for calling attention to the article, which I otherwise would never have known about.

Ms. Pekoll's article, titled Stand Up! Defending Teen's Right To Read at West Bend Community Memorial Library, can be read by clicking HERE. That's a PDF file, and if you have trouble downloading it with Google Chrome or Mozilla Firefox, try Internet Explorer. The article is part of the October 2009 issue of VOYA, Voice of Youth Advocates, a library magazine (click HERE).

The Court Speaks Again

The Wichita Falls Public Library, like all other public libraries, is a limited public forum for purposes of First Amendment analysis. . . . In a limited public forum, the government's ability to restrict patrons' First Amendment rights is extremely narrow. Thus, the City cannot limit access to library materials solely on the basis of the content of those materials, unless the City can demonstrate that the restriction is necessary to achieve a compelling government interest and there are no less restrictive alternatives for achieving that interest.

US District Court in Texas, in Sund v. City of Wichita Falls (121 F.Supp.2d 530), a decision ordering Heather Has Two Mommies and Daddy's Roommate back to the children's shelves of the public library. Emphasis added above. That word and linking the two clauses of the last sentence is critical to understanding the legal framework of censorship in public libraries.

The Courts Speak

. . . if a parent wishes to prevent her child from reading a particular book, that parent can and should accompany the child to the Library, and should not prevent all children in the community from gaining access to constitutionally protected materials. Where First Amendment rights are concerned, those seeking to restrict access to information should be forced to take affirmative steps to shield themselves from unwanted materials; the onus should not be on the general public to overcome barriers to their access to fully-protected information.

US District Court in Texas, in Sund v. City of Wichita Falls (121 F.Supp.2d 530), a decision ordering Heather Has Two Mommies and Daddy's Roommate back to the children's shelves of the public library.

A Definitive Case

In September of 2000 the US District Court in Texas made its final decision in a case known as Sund v. City of Witchita Falls (121 F.Supp.2d 530). The case has some striking similarities to the library controversy in West Bend, and illustrates how courts apply Free Speech principles and established precedents to questions of censorship. Once again, it appears that much of the West Bend complaint has already been dealt with elsewhere. A modicum of homework should have made it clear to the West Bend censors that there was nothing to be gained by undertaking the controversy that has lead to so much community bitterness.

The court's opinion in this case directly contradicts many of the legal claims made by SafeLibraries, Ms. Maziarka, and other censors:

• The idea that Heather Has Two Mommies could even remotely qualify as "obscene" is so ridiculous it was never seriously mentioned in this case.
• Even when prompted by community input, governments cannot censor on the basis of content or point of view (when a book falls within protected speech)
• Courts take censorship seriously, even when very small in scale, affecting only a handful of books in a small town library.
• Re-shelving (moving books from the children's area to the adult area within the library) can be an unlawful infringement upon Free Speech, even when no other access restrictions are put in place.
• Parents concerned about what their children might find in the library should accompany their children to the library, and have no right to inflict their opinions on other parents or on the community as a whole.

The controversy in Wichita Falls started in 1997, when the public library there purchased two copies each of Leslea Newman's Heather Has Two Mommies and Michael Willhoite's Daddy's Roommate. Heather Has Two Mommies is on the Maziarka List, meaning that it's one of the books challenged in West Bend by Ginny Maziarka and the so-called West Bend Citizens for Safe Libraries. I reviewed the book in a blog post of August 26th. Daddy's Roommate is sufficiently similar to Heather to assume that it, too, would have been objected to by Maziarka and the WBC4SL, but the West Bend library just doesn't have a copy.

In the words of the court's decision

". . . in May 1998, a number of individual and special interest groups began attempts to censor the Books-which they considered to be offensive and objectionable. These individuals and groups, many of whom objected to the perceived messages of Heather and Daddy's Roommate on religious grounds, felt as if they were waging a “moral battle” against the Books.

The city's Library Advisory Board agreed to review the books, and after careful consideration made a non-binding recommendation that the books remain in the children's area of the library. This did not deter the would-be censors, who took their complaint to the City Council. The council at first resisted, but after what the court described as "relentless pressure," came up with what they thought was a compromise. Their "compromise" was a bill that came to be known as the "Altman Resolution," which allowed citizens to force the library to remove (i.e., re-shelve) books from the children's area to the adult area within the library. The resolution allowed this re-shelving process to be applied to books intended for children 12 and younger, if a specifically worded petition were signed by at least 300 adult library card holders.

In 1999, more than 300 signatures on the specified petition were gathered and turned over to the library, and the library complied with the Altman Resolution by moving the books from the children's section to the adult section. A group of parents and their children sued the city and the library on Free Speech grounds. They were quickly granted a temporary injunction requiring the books to be returned to the children's area. A short time later this became permanent, when the court ruled definitively against the city and the censors.

The court's "Conclusions of Law" were unequivocal:

The Altman Resolution, both on its face and as applied to the removal of Heather Has Two Mommies and Daddy's Roommate from the children's area of the Library to the adult section, violates Plaintiffs' federal and state constitutional rights to receive information. The Resolution and the Book removals burden fully-protected speech on the basis of content and viewpoint and they therefore cannot stand.
. . . .
The right to receive information is vigorously enforced in the context of a public library, “the quintessential locus of the receipt of information.” . . . In Pico, for example, the Supreme Court made clear that government officials may not remove books from school library shelves “simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’
. . . .
The Wichita Falls Public Library, like all other public libraries, is a limited public forum for purposes of First Amendment analysis. . . . In a limited public forum, the government's ability to restrict patrons' First Amendment rights is extremely narrow. Thus, the City cannot limit access to library materials solely on the basis of the content of those materials, unless the City can demonstrate that the restriction is necessary to achieve a compelling government interest and there are no less restrictive alternatives for achieving that interest.
. . . .
In addition, because the only children's books located in the adult sections of the Library will be those removed under the Altman Resolution, the Resolution attaches an unconstitutional stigma to the receipt of fully-protected expressive materials.
. . . .
Moreover, if a parent wishes to prevent her child from reading a particular book, that parent can and should accompany the child to the Library, and should not prevent all children in the community from gaining access to constitutionally protected materials. Where First Amendment rights are concerned, those seeking to restrict access to information should be forced to take affirmative steps to shield themselves from unwanted materials; the onus should not be on the general public to overcome barriers to their access to fully-protected information.

Robert Cormier on Censorship

I sympathize with parents who want to have control over their own children. What their children should do, see, read. My wife and I exercised those kinds of controls. If parents object to their children reading We All Fall Down, I don't protest. But when they forbid other children from reading it then I strongly object. This, in fact, is the censorship problem in its most basic concept. Telling other people what they can do, see, or read. Invading rights of individuals in a free country.

--Robert Cormier, award-winning author of frequently challenged books for young adults, quoted in Robert Cormier: Banned, Challenged, and Censored, by W. H. Beckman (2008), p. 32.

Robert Cormier: Banned, Challenged, and Censored

Robert Cormier: Banned, Challenged, and Censored, by W. H. Beckman. Published in 2008 by Enslow Publishers in Berkeley Heights, NJ.

A short (about 160 pages), illustrated guide, structured for use in middle and senior high schools as a teaching aid for the discussion of literature and censorship. This book gives a brief history of censorship in general, then describes book challenges around one particular author, Robert Cormier. Cormier was a prolific writer in several genres, including Young Adult fiction. Among his well-known Young Adult novels are I Am the Cheese, We All Fall Down and After the First Death. His book The Chocolate War was been among the most challenged school and library books during the 1990s.

This guide reviews several of Cormier's books, discussing their plots, and the literary devices used by the author (metaphor, imagery, symbolism, etc.). It also describes the claims by challengers and counter claims by supporters. Discussion questions for classroom use are included.

This really is an excellent resource for adults as well as teens.

The best news is that it's part of a series. Companion volumes, all with the Banned, Challenged, and Censored subtitle, focus on J.K. Rowling, John Steinbeck, Medeleine L'Engle, and Mark Twain.

BBW Wrap-Up

Another Banned Books Week is coming to a close, and I think it's time for a wrap-up. As I've said elsewhere, I think it's unfortunate that we still need an annual reminder that censorship is an active problem in these United States in this 21st Century. But given that censorship still happens in the here and now, it's great that we HAVE Banned Books Week to raise awareness of the problem.

I have to say I'm appalled at the way censorship proponents have belittled the value of, and need for, a program that calls attention to this problem. I'm thinking specifically of Ms. Maziarka, SafeLibraries, and Annoyed Librarian, as well as other contributors these bloggers have quoted.

These censors have tried to claim that the ONLY definition of censorship is "prior restraint." That is, restricting the distribution of ideas amounts to censorship ONLY if the government prevents a book from being published in the first place. To be sure, such an extreme situation IS censorship, but it is not and never has been the ONLY definition of censorship, and claiming otherwise is just illogical. Most of us can easily think of many serious infringements on Free Speech that are not prior restraint but are censorship nonetheless. An old-fashioned book burning is not prior restraint. Stealing objectionable books from the library isn't prior restraint. Keeping books on evolution out of a public school district isn't prior restraint. But all of these are censorship -- an attempt to control public discourse by limiting access to information and ideas -- and all have happened in America in recent years.

An important part of the censors' argument is that situations like those in Leesburg, FL, and West Bend, WI, can't be censorship because the restriction and/or removal is not being carried out by the government. This is ridiculously and obviously untrue. A public library, and a public school library, are both government agencies. Librarians in both institutions are government employees, and both groups report to elected officials, whether to a school board or a city council or a board of county supervisors. If those libraries carry out any action to remove, restrict access, or discourage readership of protected speech, that action is government action. To be sure, the demands for censorship in West Bend and Leesburg don't originate in government, and don't originate in the libraries themselves, but come from misguided private citizens. But those private citizens aren't the ones who are going to have to consider the law, make a formal decision, or take the censorious action. It is the government agency that ultimately must to the deed, and the private citizens are asking the government to censor on their behalf.

This is a critical point, and one the censors work hard to draw attention away from. They act as if the tax-funded nature of such institutions somehow narrows Free Speech, as if tax-funded institutions were required to pander to the most sensitive and restrictive citizens. The truth is quite the opposite. As creatures of government, in a secular state and pluralistic democracy, those tax-funded institutions are bound by law, not just ethics, to a very high standard of respect for Free Speech. They are duty-bound to neutrality with respect to point-of-view, and to protect what the law classifies as protected speech.

A very large portion of the modern-day censorship problem revolves around the inability, or simple refusal, to comprehend the distinction between public and private. A private individual doesn't have to read a book he or she doesn't approve of, nor keep such a book at home. A private group, such as a church, can remove from their own library shelves whatever they want, and nobody can cry censorship. But public space is bound by different rules. A parent can say, "I don't want my kids to read this book," and can enforce that opinion in their private space by supervising what the children read. A parent can stand up in public and say, "I don't want my kids to read this book, and you shouldn't let your kids read it either." That's an exercise of Free Speech. But Freedom of Speech has never meant that you get to force other people even to listen to you, let alone agree with you or obey you. It is censorship, plain and simple, for a parent to say to the library, "you must implement my personal opinon as public policy, you must deny other people's children what I would deny to mine."

The most twisted and irrational argument that the censors have published this week is their claim that small, local restrictions of access are just too small in scope or scale to amount to censorship. Just removing or restricting a book in one library doesn't mean you can't get the book somewhere else, so it isn't really censored, they say. The law clearly disagrees. In Board v. Pico the US Supreme Court made it quite clear that a school board can NOT remove books just because they object to the ideas in them, even if it's only a handful of books in a small school district nobody in the rest of country ever heard of. In Case v. Unified School District a District Court held that the removal of just one title from a library was an illegal infringement on Free Speech, even though the book was available in local stores. These and others were cases of censorship on a very small scale, but the courts took them seriously enough to allow them to be litigated, to order the books back on the shelves, and to chastise the censors for infringing on the Free Speech rights of others.

There are some kinds of materials that are not protected speech. Books that are obscene, in a legal sense, can be removed or restricted without infringing upon the First Amendment. Where minors are concerned, this can be broadened somewhat to restricting materials that are "harmful to minors," a term that still hinges very much on the concept of obscenity. The censors try to turn this into some kind of carte blanche, as if merely chanting the magic words "protecting children" nullified any and all Free Speech concerns. Again, the law says otherwise. The legal definitions of "obscene" and "harmful to minors" are difficult and demanding by design, and very few libraries shelve any materials that meet those criteria. I've reviewed nine challenged books on this blog, and not one came even close. I've challenged Ginny Maziarka by Email and on my blog to explain in detail how even one of the 40-odd books she objected to could meet those definitions, and my challenge went unanswered. I'm beginning that process now with the 40-odd books challenged in Leesburg, FL, and expect the same deafening silence.

Anyone in doubt about the need for Banned Books Week need look no further than West Bend or Leesburg, two towns that should be on the poster for next year's event, under the heading, "Don't Let This Happen to You!" These are both egregious examples, examples of somebody trying to inflict their personal ideology upon the public, examples of somebody trying to tell other people's kids what they can and cannot read. That is, they are egregious examples of censorship.

Ray Bradbury on Censorship

There is more than one way to burn a book. And the world is full of people running about with lit matches. . . . Fire-Captain Beatty, in my novel Fahrenheit 451, described how the books were burned first by the minorities, each ripping a page or a paragraph from this book, then that, until the day came when the books were empty and the minds shut and the libraries closed forever.

--Author Ray Bradbury, in an essay titled "Coda" to Fahrenheit 451, appearing in War of Words: The Censorship Debate, edited by George Beahm, Kansas City: Andrews and McMeel (1993), p. 40-42.

Leesburg: Judging a Book By It's Cover?

I've documented the 43 books that one news source says are being challenged in Leesburg, FL. While I acknowledge that you CAN'T judge a book by it's cover, I'd be embarrassed to be making a public stink over these. Click HERE to see the list in living color!

Crossing the Line into Censorship

In the typical censorship incident, an individual or very small group--sometimes parents, sometimes not--attempt to dictate to an entire community what all children can or cannot read or learn. To most observers, that kind of "dictating" crosses the line into censorship. And the results--for children, the parents and the community--can be very destructive.

-Arthur J. Kropp, then president of People For the American Way, writing in War of Words: The Censorship Debate, edited by George Beahm, Kansas City: Andrews and McMeel (1993), p. 190.