The Political Implications
It’s been discussed that censorship is wrong in both moral and developmental contexts, however, this does not inherently mean censorship is wrong in a legal context. This section will explore whether limiting access to literature is legally wrong, and what the implications of this decision mean for censorship in a broader context.
First, it is important to define the difference between unconstitutional and illegal. The constitution is defined as “a document that formally states the powers…the people have consented to grant to their government…a constitution governs government” (Rogers, 2012). It decides what the government can and cannot do and what the people will and will not tolerate from its leaders. A constitution can be changed only by “another written, ratified document” (Rogers, 2012), which is more commonly known as an amendment. Guidelines established by constitutions are upheld throughout the country (in this case, we are referring strictly to America and American political policies).
Inversely, a law is defined as “a rule of conduct or action …formally recognized as binding or enforced by a controlling authority” (Merriam-Webster Dictionary). This means that the government creates the limitations for the people (“law governs persons” [Rogers, 2012]). Also, a law can be changed “by the legislature that originally passed it” (Rogers, 2012). Therefore, laws are easier to change and vary from place to place.
Therefore, when individuals act improperly, it is considered illegal; whereas when the government acts improperly, it is considered unconstitutional. Thus the concepts of unconstitutionality and illegality are not mutually inclusive. In the legal sense, this is a simplistic concept; however, when applied to censorship the issue becomes a bit more complex.
The First Amendment prohibits “abridging the freedom of speech, or of the press” (US Const. amend. I). While this is widely known to mean it protects an individual’s right to speak without fear of legal consequences, its protection extends beyond simply speaking. The Cornell University Law School has further specified that the freedom of expression (N.d.) is also protected. The ACLU also identifies freedom of expression as “artistic expression” (2006), thereby including “books, theatrical works and paintings… posters, television, music videos and comic books -- whatever the human creative impulse produces” (ACLU, 2006). Because there are now a lot more avenues in which ‘speech’ is present, that also means that, wherever a form of ‘speech’ is, it is protected; “the government cannot limit expression just because any listener, or even the majority of a community, is offended by its content” (ACLU, 2006). Therefore, censorship imposed by the government is considered unconstitutional (ACLU, 2006).
However, there are still notable limitations to what is broadcast in the media. TV shows, for example, are not permitted to use profanity or show detailed sex scenes. Doesn’t this count as a form of censorship, as it is instituted by the government? And isn’t it unconstitutional? The short answer is no.
In regards to regulation, the courts have made a distinction between obscene and indecent. Indecent expression (ACLU, 2006) is a term created by the courts that serves as a sort of loophole for allowing a certain amount of lewdness in media. This concept is most notable in late night TV programs that advise viewer discretion before beginning. Indecent expression, according to the courts, “is entitled to some constitutional protection, but that indecency in some media (broadcasting, cable, and telephone) may be regulated” (ACLU, 2006). So while there are instances where censorship is seemingly allowed, it is done in such a way that does not actually qualify as censorship (especially the type of censorship discussed in this website). This type of indecency is allowed to exist on the condition it is shown late at night when children will be least likely to be exposed to it (ACLU, 2006). Therefore, it is more of a cautious regulation than an instance of censorship.
Additionally, there are acts of censorship by individuals or small, localized groups. This type of censorship is not only the primary focal point in this website, but also the most common form of censorship in modern society. Censorship imposed by individuals, under the First Amendment, is a bit difficult to understand. To deny an individual or a group the right to express disagreement or even boycott a book they find disagreeable would be, naturally, unconstitutional. It has been discussed that freedom of expression is a constitutional right, regardless of its delivery; whether it be via mouth or keyboard, expression deserves protection. Still, it is perfectly legal for anyone to express dissatisfaction with a form of media (book, magazine, etc.) (ACLU, 2006).
However, censorship--specifically removal-- of literature seems to stand in legal limbo. The ACLU of Vermont student handbook states the answer to the question Can school officials remove books from the school library? is both yes and no (2009). How can this be? It is because censorship can be unconstitutional but not illegal.
Alone, or as a group, parents (as parents are the primary challengers of books, according to the American Library Association) are just individuals; the decision to remove a book from their child’s possession is more of a personal parenting choice, despite prior evidence that exposure is healthy. It becomes censorship when a book is pushed for removal from public access, that is from a school or town library. Schools have been given the right to regulate what books stay in the libraries (the right to regulation was discussed earlier in this section), but the motive for removal must be assessed before removal commences. The ACLU student handbook states a book must be deemed extremely and consistently vulgar to warrant its removal; otherwise, removal based on controversial topics is considered suppression of ideas, and is unconstitutional (2009).
Cases have been made on behalf of books prone to removal that said removal would be a violation of the students’ constitutional rights. The most famous case of this is the Board of Education, Island Trees School District v. Pico, which took place in 1982 (Mullally, 2002). Mullally has even gone as far to say that this case is “ the most important court decision to date concerning school libraries and the First Amendment” (2002). In this case, the school board acted independently of a review committee and removed several books from the library on the grounds that the contents were too controversial and immoral for students to access (Oyez, n.d.). Students Francis Pico and Steven Pico sued the school on the grounds that the First Amendment rights of the students had been violated. Though initially the courts sided with the board, the students won an appeal; the school board then appealed to the Supreme Court, where ultimately it was decided in a 5-to-4 ruling in favor of the students (Mullally, 2002). It was stated that “although school boards have a vested interest in promoting respect for social, moral, and political community values, their discretionary power is secondary to the transcendent imperatives of the First Amendment” (Oyez, n.d.), thereby deciding that books cannot be removed “simply because [the board] members disagreed with their idea content” (Oyez, n.d.).
This case has set the standard for book banning in school libraries, and continues to do so. Since this case “litigation involving book censorship in schools has usually turned on the rights of a school board to control classroom curricula” (Mullally, 2002).
The American Library Association (ALA) reports that at least 311 books were challenged in 2014, while estimating that roughly 80% of challenges or removals are not reported (2014). This supports a claim made by the The National Council of Teachers of English (NCTE) that “pressures [of censorship] have mounted in recent years, and English teachers have no reason to believe they will diminish” (Fink, 2014). Furthermore, the ALA reports that in 2014, of the 311 books challenged, 38% of challengers wanted the books removed from the town’s public library; 36% wanted the books removed from schools; and a mere 11% wanted the books removed from the school libraries (2014). This distinction suggests that parents--as parents comprised the largest percentage of challengers (35% in 2014 and 40% in 2015)-- do not simply want books taken out of libraries, but also banned from the entire premises. This trend seemed to taper in 2015, as 45% of challengers wanted books removed from public libraries, while the school premises was replaced with curriculum (28% of challengers petitioned for this), while 19% wished to ban books from the school library (ALA, 2015). Despite this, it is clear that parents are pushing more aggressively to limit any possible exposure their children might receive. Furthermore, the increase in challenges from 2014 to 2015 (a 5% increase) also supports the NCTE’s claim that the push to censor is not likely to slow down.
With this in mind, it is difficult to identify the exact legal standing censorship has. Though the courts generally tend to support controversial books, it seems as though decisions are made on a case-to-case basis, as there is no definitive answer. This inconsistency with legal standards raises concerns about the status of free speech. While the law tends to protect free speech and has prevented instances of unjust censorship in the recent past, the fact that there are many instances of societal (and subsequently legal) disagreement, raises the question: why does society continue to bicker within itself over something it is supposedly entitled to? Are our rights as indisputable as we think? And what does this mean for the future of free speech?