By Sydney Welch, Staff Member Vol. 20
This post is dedicated to Ahmaud Arbery, Breonna Taylor, George Floyd, and the thousands of other Black Americans who have been unjustly murdered by police.
During the summer of 2020, the COVID-19 pandemic was raging, presidential election campaigns were in high gear, and public attention turned to racial injustice in response to endless news reports of police brutality that culminated in the murders of Black men, women, and children.
What followed was a Racial Reckoning, an outcry for justice that reverberated across the globe. Predictably, with that outcry came whitelash—a term that describes how white people and established systems often respond to progress for people of color with more oppression and violence—in the form of counterprotests on the values of property over life, “law and order” over justice, silence over speech. This fight for “traditional American values” extended beyond street protest and has since infiltrated our public education system in the form of book bans and legislation governing how race is discussed in the classroom.
The Office for Intellectual Freedom compiles a list of the top 10 books challenged or banned from public libraries and educational settings across the U.S. each year and cites the reasons parents or other community members seek censorship of those materials. Before 2020, The Hate U Give was the only book listed as challenged for promoting “anti-cop” or “anti-racist” views.
After the Racial Reckoning, there were four. Stamped: Racism, Antiracism, and You was challenged for containing “selective storytelling incidents” and because of “author’s public statements”; All American Boys for promoting “anti-police views,” containing “divisive topics,” and discussing “too much of a sensitive matter right now”; and Something Happened in Our Town: A Child’s Story About Racial Injustice for “divisive language” and for promoting “anti-police views.” The Hate U Give was challenged again for promoting “anti-cop” views.
Clearly, the challenges are exclusively based on the content of the books. Within First Amendment jurisprudence, content-based restrictions are limitations imposed on speech by state actors that are solely based on that state actor’s disapproval of the substantive ideas expressed by or contained within the speech.
Content-based restrictions are presumptively unconstitutional and automatically trigger strict scrutiny. In order to meet this high standard, the regulation must implicate a compelling government interest in restricting speech, the government must narrowly tailor the regulation to achieve that interest, and the regulation must be the least-restrictive alternative that would achieve the same goal. Though rarely, the Supreme Court has upheld certain content-based restrictions as constitutional, but only if they restrict speech within specified subject-matter categories, including obscenity, child pornography, profanity, etc.
Within the broader category of content-based restrictions is a more specific type of regulation: those based on viewpoint. Viewpoint-based restrictions limit speech solely based on the ideology communicated by the speaker, i.e., allowing books to be published that are about Buddhism, but not books about Judaism. Unlike a more general content-based regulation, the Supreme Court considers viewpoint-based restriction much more egregious, and as a result, the Court has never upheld a regulation that discriminates based on viewpoint alone.
The Supreme Court addressed this particular issue in Island Trees School District v. Pico. The plurality of the Court held that school boards could not remove books from school library collections solely because the board disapproved of the ideas within those books and, through the books’ removal, wished to establish what is acceptable in terms of politics, nationalism, religion, etc. Notably, the Court limited this finding to school libraries and refused to apply it to materials used in classroom curriculum. In effect, the Supreme Court stated that it is unconstitutional for a school board to ban books from school library collections simply as a “suppression of partisan or political views it did not share.”
Moreover, the Supreme Court has held that in determining First Amendment applicability, they must consider the book’s context. Books included in library collections warrant more First Amendment protection than do books included in the curriculum taught in classrooms. The reasoning for this distinction turns on voluntariness—students can choose whether to check out a particular book from a library, where every student is uniformly required to read books used in their school curriculum. A court should view challenges to books held in libraries with more exacting scrutiny because of the potential for removal of access to certain titles, which implicates the right to receive information as one chooses, a corollary of free speech.
Public and school libraries received the most challenges and petitions in 2020, thus implicating the heightened standard afforded to those institutions. The various petitions cited no reasons for censorship related to a compelling government interest—nothing about preventing children’s access to violent content, nor any reasons related to historically regulable topics like obscenity or profanity. The books were exclusively challenged for discussing political views about policing and racism, which is a pure and unconstitutional viewpoint-based restriction. The fact that the petitioners employed egregious viewpoint discrimination in their challenges disclaims the rest of the test—one cannot narrowly tailor a restriction nor argue that it is the least restrictive alternative when the very goal of that restriction is patently unconstitutional.
Not only is the restriction unconstitutional, but it also represents unsound policy. A commonly-cited foundational principle of the First Amendment is the preservation of the marketplace of ideas—that with higher quantity and more varied speech, we step closer in our pan-societal search for truth. Banning literature solely based on its penchant to offend or critique a singular point of view stands directly in the face and spirit of the First Amendment. Further, utilizing the First Amendment right to protest solely to prevent students from accessing literature that discusses protest is plainly hypocritical.
These books are of particular value in the context of America’s history with racial inequality and our current racial climate. America has a dark past regarding our treatment of people of color. We are still reckoning with that past to this day. Our well-established policy of protecting this type of speech, coupled with the increased national emphasis on addressing racial inequity, demands that these books be protected and made accessible to the public.