CBA Record November-December 2023

Free Speech and Book Bans By Lynn Semptimphelter Kopon

A discussion of free speech and censor ship invokes the topic of book bans. Since 2021, 10 states have passed class room censorship bills that restrict discus sions about race and gender in schools. In 2022 alone, state legislatures introduced 11 new censorship bills across 33 states. ACLU, Defending Our Right to Learn, March 10, 2022. In Island Trees School District v. Pico , 457 U.S. 853 (1982), the Court asked whether the First Amendment imposes limits on the exercise by local school boards to remove library books from school libraries. In framing this issue, the Court acknowledged that students’ First Amendment rights may be directly impli cated in the removal of books. While local school boards possess discretion to determine the content of school libraries, that discretion may not be exercised in a narrowly partisan or political manner. In reviewing the challenged book removal, the Court considered the Board’s motives in removing books. The Court stated that the right to read is implied by the First Amendment, and a public school cannot restrict speech because it does not agree with the content. The case was remanded to decide issues of fact. In a 2009 Eleventh Circuit case, ACLU of Florida v. Miami-Dade County School Board, 557 F. 3rd 1177, the Court held that whether petitioner’s removal of books from school libraries denied respondents their First Amendment rights depends on the motivation behind petitioners’ actions. The Court decided that the books were removed due to inac curacies and errors, and not because the school board disfavored the views they presented. The American Library Association and PEN America report record numbers of requests for book bans in schools across the country. PEN reports that 2,532 book bans were requested for the one-year period between July 2021 - June 2022.

The majority, 657 titles, had story lines or characters representing LGBTQ+ themes and protagonists or secondary characters of color, or directly addressed issues of race or racism. Mendoza, S., Respect, NJ SBF Diversity Newsletter, Winter 2023. In Texas, the ACLU filed a complaint with the U.S. Department of Educa tion Office of Civil Rights claiming the Texas School District violated Title IX, which prohibits discrimination based on sex, when it removed 130 books from library shelves, three-quarters contain ing LGBTQ+ themes. Sylvia Mendoza, Respect, NJ SBF Diversity Newsletter, Winter 2023. The ACLU of Texas also filed civil rights complaints for adopting anti-LGBTQ+ policies. In yet another affront to the First Amendment, children’s book pub lisher Scholastic debuted a collection of “diverse” books called “Share Every Story, Celebrate Every Voice” in October of this year. The collection included 64 titles, most of which are stories about LGBTQ+ characters, civil rights activists, and people

of color. The publisher originally planned to inform school districts that the collec tion could either be included in school book fairs or be excluded entirely from what is presented to children at such fairs. However, Scholastic faced strong back lash to its plan to separate books based on content and ideas: the publisher halted the new practice less than 10 days after announcing it. D. Goldstein, Publisher Scholastic Backtracks on Isolating Works on Race and Gender , www.NYTimes.com, Oct. 25, 2023. Book bans implicate free speech because they impede the right to receive information. In a free society governed by laws, this impediment must be viewed with the strictest scrutiny. If we are talk ing about the free exchange of ideas and information, the Constitution guarantees unrestrained speech. If we are talking about true threats, incitement to violence, fraud, and obscenity, that speech is not protected. As lawyers, we weigh the interests. Let’s be careful about this.

CBA RECORD 23