Embedded in each conversation about banning books are arguments that use legal terminology. A brief conversation about banned books with a librarian will likely lead to a discussion of the “Library Bill of Rights” published by the ALA. No one is bound by the ALA’s Bill of Rights, which lacks a method of enforcement. Thus, the question remains: what is the legal landscape of banning books? Unfortunately, the Supreme Court has not provided a clear precedent about banning books from public school libraries. In fact, the Supreme Court has only taken cases about libraries on three occasions, each of which has resulted in its own complex web of plurality opinions. For public school libraries, Board of Education v. Pico is the guiding case. Yet, as the past few decades have demonstrated, Pico falls short when lower courts attempt to apply it. In the face of the myriad of potential cases that could soon arise about banned books, federal courts are not completely lost. Rather than cobble together a Franken-precedent from pieces of the Pico plurality, courts can draw upon binding precedents from West Virginia State Board of Education v. Barnette and Brown v. Entertainment Merchants Ass’n to guide decisions about books in public school libraries.
First, Part I of this Note will establish a baseline understanding of the background of book bans in public school libraries. Part I begins with the vocabulary of banning books, continues to the history of how banning books connects to free speech, and concludes with why banning books should be viewed as a question of free speech rather than parental rights. Potential speech implications for parents, school governments, authors, students, and librarians each receive attention. Then, Part II examines how the Supreme Court addressed the removal of books from a public school library in Pico and how federal circuit courts of appeals and federal district courts have applied the Pico plurality. In light of these shortcomings, Part III argues that even without binding precedent from the Supreme Court, courts can combine the Pico plurality with binding First Amendment precedents from Barnette and Brown to guide how they think about upcoming decisions regarding banned books.
Battlegrounds for Banned Books: The First Amendment and Public School Libraries,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol98/iss3/8