Note: This text served as the basis for remarks made to the Michigan Library Association on March 16, 2023. The remarks draw heavily from material I have previously published elsewhere.
Good morning and thank you for inviting me to be with you today.
When you signed up to be a librarian you probably didn’t know you were signing up for service on the frontline of a major culture war. But here you are. And, as a free speech scholar and advocate, here I am with you.
In our time together, I’m going to talk about two current censorship efforts that are distinct but related.
One of these consists in attempts to exclude certain books and subjects from classrooms, especially public K-12 classrooms.
The other consists in efforts to exclude certain books and other materials from libraries, including both school and general public libraries.
The primary interest of this group may lie more with restrictions on libraries than with restrictions on classroom discussion and curricular choices.
But I think it’s important to discuss both of these efforts together because they reflect similar impulses in public policy and because they tend to fuel and foster each other.
To talk solely about libraries is to tell only half of a highly integrated story. So, I’ll talk about both.
These two different kinds of censorship efforts take lots of different forms.
In an increasing number of instances, they come to us in the form of state legislation.
But these efforts also come to us in highly localized forms, like ordinances passed by small communities and policies adopted by individual school districts or even specific schools
Attempts to measure these efforts therefore arrive at something less than mathematical precision. State bills are relatively easy to track and monitor, but local efforts often fly under the radar.
As a result, the only thing we can say with complete confidence is that whatever data we have will understate the magnitude of these censorship efforts, probably significantly, because they won’t capture many things that happen at highly localized levels.
With that said, it is possible to provide at least some sense of the magnitude of this movement.
Let’s start with efforts directed toward K-12 schools specifically—often including their libraries. PEN America monitors these proposed laws in what it calls its Index of Educational Gag Orders.
PEN defines an Educational Gag Order as a legislative effort to restrict teaching about race, gender, LGBTQ+ status, or history about those identities. As of March 7, 2023, when I last checked the site, the Index listed ninety-seven Educational Gag Order bills currently pending across the country.
Of course, the Florida and Texas legislatures have gotten most of the attention here. But bills have also been proposed in twenty-two other states, including Alabama, Arizona, Arkansas, Connecticut, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Maine, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Jersey, North Carolina, North Dakota, Oklahoma, Oregon, and Rhode Island.
In a report issued in August of last year, PEN summarized its key findings regarding these statutes. It showed these new efforts to censor classroom discussions to be significantly more worrisome than past attempts in multiple respects.
First, past attempts to censor classroom discussion have mostly been relatively isolated frolics involving a limited number of states or small (usually rural) communities. But the PEN report indicates that there has been a dramatic escalation in these efforts.
In 2022, for example, lawmakers in 36 states introduced a total of 137 educational gag order bills, a 250% increase over 2021. And, as I noted earlier, these numbers understate matters because the PEN report doesn’t monitor local authorities like school boards.
Second, past book banning efforts have usually led to limited consequences, like the removal of a text from a reading list or a shelf. But the current round of proposed laws includes punishments like heavy fines, loss of state funding, teacher termination, and even criminal charges.
The PEN report finds that within the past year these proposed laws have become “strikingly more punitive.”
Third, past censorship projects have usually focused on the K-12 context and legislators have largely stayed away from trying to dictate the contents of instruction in colleges and universities.
But some laws in the current batch expressly apply to institutions of higher education. This is remarkable in the face of precedent from the Supreme Court, which more than fifty years ago recognized that the academic freedom protected by the First Amendment “does not tolerate laws” that “cast a pall of orthodoxy” over the university classroom.
If we focus on libraries, we see similar patterns. In 2021, the American Library Association reported 729 attempts to ban library books and resources, impacting 1,597 unique titles.
It was the highest number of attempted book bans since the ALA began tracking them about twenty years ago.
In September of 2022, the ALA reported that bans were on track to exceed the 2021 numbers.
I don’t want to leave you with the impression that the great State of Michigan has remained blissfully immune from these impulses. Just this week, the Lapeer County Prosecutor stated that he might file criminal charges against employees or officials of the area public library if they didn’t remove an LGBTQ-themed novel from its shelves.
The prosecutor told Bridge Magazine that in his view the book—Gender Queer: A Memoir—could entice minors to engage in immoral acts with adults.
Of course, this argument makes no sense and any such prosecution would be rife with First Amendment problems. On the same theory, all copies of Moby Dick should immediately be seized from libraries and burned before they lure someone into violating the International Convention for the Regulation of Whaling.
But threats—even objectively silly ones—can have a chilling effect on speech. And, when librarians have to spend time looking over their shoulder for arrest warrants, the signs indicate that we have arrived at a truly Orwellian destination.
And, indeed, that’s exactly where we are. We are living through one of the most expansive and aggressive efforts to censor ideas from classrooms and libraries in the history of the United States.
Perhaps the most expansive and aggressive effort.
What does the law have to say about all of this? Well, alas, it’s more complicated than you might think.
When people hear that a government entity has banned a book from a school curriculum or a library, they often think it’s a straightforward case of censorship in violation of the First Amendment. And, indeed, several legal principles support the impulse that this is so.
The first of these principles is that government restrictions based on the content and viewpoint of speech are almost never constitutionally valid. Our First Amendment embodies the notion that ideas and opinions compete for our allegiance in an open marketplace and we have the right to choose freely among them. The government doesn’t get to make that choice for us.
The second of these principles is that the First Amendment doesn’t just give us a right to convey information and ideas; it also gives us a right to receive them. That right arguably extends to K-12 students, who, the Supreme Court said in the famous 1969 case of Tinker v. Des Moines School District, do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” And that right also presumably extends to the millions of patrons who visit public libraries every year.
But it’s not that simple because other, conflicting legal principles point in the opposite direction.
The first of those principles is that the government can control the content and viewpoint of speech when it is the one doing the speaking. This makes sense, because the First Amendment exists to protect individuals and private organizations against the government—not to protect the government against itself.
That principle matters here because most of the current rash of laws and policies restrict what government employees (like public school teachers) can say while they are on the job and acting in the course of their employment.
The second of these principles is that K-12 students have some rights when it comes to speech related to the school curriculum—but not many. Indeed, the general pattern of Supreme Court decisions since 1969 has been a steady retreat from the broad declaration of student rights we find in the Tinker case.
And the third of these principles is that the government has considerable latitude to decide to devote its resources to some things but not others. So, for example, a library might conclude that it doesn’t view graphic novels as a priority and so doesn’t want to dedicate its budget or shelf space to such publications.
Budget justifications can become an easy pretext for doing away with books with troublesome content.
It would be very helpful if we had a body of clear and coherent Supreme Court caselaw to help us find our way through this constitutional thicket.
But we don’t.
Instead, we have a mishmash of rulings that provide much less guidance than we would like. Some of them are old, some of them are fragmented, and some of them are old and fragmented.
I don’t have time to discuss every Delphic precedent we have in our inventory, but let me briefly mention two cases that demonstrate the problem.
The first is the case of Board of Education v. Pico, decided in 1982. That case squarely presented the question of whether the First Amendment imposes limitations on the authority of local school boards to remove books from high school and junior high school libraries because members of those boards disapprove of the contents of those books. Alas, the Court didn’t provide as clear an answer as we might hope.
The case resulted in seven different opinions, none of which represented a majority view of the Court.
Justice Brennan wrote an opinion recognizing that students have some First Amendment right to receive information and that school officials do not have unlimited rights to remove books. His opinion includes favorable language about the rights of students and the role of libraries and represents the holding of the Court.
But only three other justices joined the opinion in full and it qualifies as the ruling of the Court only because Justice Blackmun filed a partial concurrence that agreed with the outcome.
And even Justice Brennan’s decision includes a fair amount of language about how courts should generally defer to the curricular and other decisions of school administrators.
Chief Justice Burger and three other justices dissented, disagreeing with the notion that students have a right of access to any book in particular. Of course, dissents are just that—dissents—but this one seems much more closely aligned with the approach the Supreme Court has taken in recent years to the First Amendment rights of K-12 students than does the opinion of Justice Brennan.
The second case I’ll mention is United States v. American Library Association, decided in 2003. That case raised the question of whether Congress had the authority to require public schools and libraries to install internet filtering software on their computers as a condition of receiving federal funding.
The ALA argued that the filtering requirement interfered with the First Amendment rights of its adult patrons. It appeared that the case might provide some clarity about the breadth and significance of those rights. But it didn’t, for two reasons.
First, this case gave us yet another fragmented ruling. No opinion attracted the support of a majority of justices. Justice Rehnquist’s opinion, which stands as the opinion of the Court, was joined in full by only three other justices, with two more concurring only in the judgment. Three justices dissented.
Second, Justice Rehnquist’s opinion concluded that the case didn’t really implicate the rights of adult patrons because the federal law in question required libraries to install the software but did not require adult patrons to use it. To the contrary, patrons had the prerogative to ask the library to disable it when they conducted searches.
I could go on and on about the mysteries in this area with which the Supreme Court has left us, but I’ll leave it there. Those of you who are curious to know more about the First Amendment may want to read my book Free Speech: From Core Values to Current Debates, done with my co-author Tom Sullivan and published last year by Cambridge University Press.
And that ends my shameless self-promotional plug for today.
Suffice it to say that when government officials misbehave we like to think we can call for the Supreme Court to save us. It’s not so easy here. With respect to these issues, it’s hard to tell whose side they’d be on.
In some cases, the First Amendment will indeed provide a clear obstacle to the current wave of censorship. For example, in my opinion it would be a plain violation of the Constitution for a prosecutor to do what the Lapeer prosecutor has threatened—bringing criminal charges against a local librarian for having a non-obscene book about sex on a shelf.
And some of the statutes that have been proposed may be invalid on grounds other than the First Amendment, for example because they are so vague and incomprehensible that the violate the Due Process Clause.
Still, in my view the application of the First Amendment here is, indeed, pretty murky. Under those circumstances, the solution to these proposed laws may lie not in federal court lawsuits but in the political process.
That’s a tricky place these days, but it may well be where the fight need to get fought. And, if that’s right, then it falls to each and every one of us who opposes censorship to be able to explain to our public officials and fellow citizens exactly why these laws and policies are a bad idea.
Well, I argue with people for a living, so I’m going to try to help. I’m going to give you half a dozen arguments or your arsenal.
The first argument is that these laws won’t work and are a waste of time, energy, and political capital. If a school board or municipality finds some ideas worrisome and believes that keeping books off shelves will prevent students and adults from accessing them then they may wish to acquaint themselves with a phenomenon called the Internet.
Every idea imaginable waits there, available to anyone with a smartphone or a laptop, at no or little cost. The Brooklyn Public Library has made numerous censored titles accessible to anybody who cares to read them through its Books Unbanned Program. Given the realities of cyberspace, the banning of ideas from classrooms and the removal of physical books from shelves seems like a bad joke perpetrated by someone trapped in a time warp.
The second argument is that book banning often rests on misinformation or ignorance. The next time someone tells you about a book that should be banned, ask them if they’ve read it.
The history of censorship overflows with examples of people working to silence speech about which they knew little or nothing—and ending up looking ridiculous as a result. Consider, for example, when Frank Zappa’s album “Jazz from Hell” received one of those alarming black-and-white stickers warning parents about the “explicit lyrics” it contained.
The album consists entirely of instrumental music.
In those cases where aspiring censors do bother to acquaint themselves with the speech they seek to silence, they sometimes change their minds. In 2011, a Washington school board committee voted 3-2 to ban entirely Sherman Alexie’s often-targeted book The Absolutely True Diary of a Part-Time Indian. Then it occurred to them that maybe they should read it. After doing so, they reversed their prior judgment 4-1.
Third, book banning is hypocritical. Censors typically justify the practice on the basis that it protects innocent minds from dangerous and immoral ideas. But that justification fails if book banning doesn’t work—and it doesn’t—and if censors don’t even know what’s in the book they’re condemning—and they often don’t.
Banning books therefore has nothing to do with protecting anyone. Instead, it has everything to do with the egos of those doing the banning. It’s an exercise of raw power, a tantrum intended to show that the censor’s ideas win and the censored ideas lose. And it makes curious young minds the meat in that ego sandwich. Of course, those who enjoy wielding the power also overlook the fact that doing so has a fearful symmetry to it, and that tomorrow the books that they value could end up on the other side of the equation.
Fourth, if book banning did work—and, again, it doesn’t—it would have disastrous consequences.
It would deprive readers of access to some of the world’s great literature. The ALA list of most frequently banned books includes such critically acclaimed works as To Kill a Mockingbird by Harper Lee, A Brave New World by Aldous Huxley, Of Mice and Men by John Steinbeck, The Adventures of Huckleberry Finn by Mark Twain, Beloved by Toni Morrison, The Catcher in the Rye by J. D. Salinger, The Color Purple by Alice Walker, Diary of a Young Girl by Anne Frank, A Clockwork Orange by Anthony Burgess, Awakening by Kate Chopin, and I Know Why the Caged Bird Sings by Maya Angelou.
Furthermore, reading takes the reader into other minds, other experiences, other perspectives, and other ways of looking at the world. It destabilizes our natural human tendency to believe that everyone sees things like we do. It expands our capacity for empathy.
Henry Reese was onstage with Salman Rushdie when the author was attacked at the Chautauqua Institution and he published a powerful piece in the New York Times recounting the experience. He describes the “remarkable response” of audience members running to the stage to defend Rushdie.
Reese observes that this was “the opposite of the so-called ‘bystander effect,’ when individuals do nothing, relying on others to help.” He labels what he saw at Chautauqua as “the reader effect.”
Noting that Chautauqua is “an intentional community of readers,” he argues that reading creates empathy and that the “intuitive response of an empathetic community is to help.” I’ll come back to Reese’s idea later.
Fifth, even if book banning isn’t always a violation of the letter of the First Amendment, it is a violation of its spirit. The First Amendment exists precisely in order to keep government out of the business of deciding which ideas win and which ideas lose. In our democracy, we get to judge that for ourselves.
One of the most powerful expressions of this concept came from Justice Jackson in the Barnette case from 1943. There he said: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion …”
That’s what the current wave of book banning tries to do: prescribe and enforce an orthodoxy. It is morally obnoxious and aggressively un-American. It doesn’t need to hit the trifecta of also being illegal to earn our condemnation.
Again, for those who are interested, Tom and I discuss these ideas at length in our book, especially in a chapter we call “The Everyday First Amendment.”
The sixth argument may not appeal to all audiences, but for me it is the most powerful, most important, and most unsettling one. It turns on a difference between the current wave of book and idea banning and prior waves.
Of course, bans on ideas and books are nothing new to this country.
Early efforts to keep ideas out of classrooms sometimes arose from religious objections. A famous example came in Tennessee’s Butler Act of 1925, which prohibited instructors in public schools from teaching that human beings had “descended from a lower order of animals.” Teachers were expected to address the origins of life by offering the answer provided in the book of Genesis.
The Act led to the notorious Scopes Monkey Trial later in 1925.
Because biblical instruction in public schools violates the Establishment Clause of the First Amendment, the Supreme Court in 1968 held a similar Arkansas law unconstitutional. By then, however, the folly of the Butler Act had made it a subject of scorn.
Clarence Darrow’s brilliant defense of John Scopes, the schoolteacher charged with violating the statute, made the law look both sinister and ridiculous, a view reinforced by the dramatization of the trial in the 1955 play Inherit the Wind and the 1960 film adaptation. (If you haven’t seen it, watch it; if you haven’t seen it recently, watch it again.)
In general, however, efforts at censoring public school instruction have gone after smaller game than an entire scientific theory, focusing instead on a specific book.
Officials have usually offered as the reason for banning a book the fact that it describes events or behaviors inappropriate for young and impressionable minds. For example, the top-ranked book on the list, Sherman Alexie’s The Absolutely True Diary of a Part-Time Indian, which I mentioned earlier, has been banned because of its use of profanity and its descriptions of sexual activity, masturbation, violence, and bullying.
Public officials have sometimes targeted books for reasons other than their adult language or explicit references to sex or drug abuse. The dark visions of the future reflected in books like George Orwell’s 1984, Margaret Atwood’s The Handmaid’s Tale, Lois Lowry’s The Giver, and Ray Bradbury’s Fahrenheit 451 have undoubtedly fed the controversies around them.
And that’s ironic, because some of these dystopian fantasies imagine a world in which the abuses of a tyrannical government include the banning of books.
But most censorship of books and banishing of ideas from classrooms has been driven by arguments about what we don’t want our children doing: having sex, drinking, taking drugs, engaging in violence, and swearing a blue streak.
The current wave of censorship differs. It doesn’t go after scientific theories that conflict with religious beliefs. It doesn’t go after fictional narratives that anxious parents don’t want their children to glamorize or emulate.
It goes after who people are. And it does so through far-reaching policy proposals as well as through challenges to specific texts.
Indeed, current efforts seek to purge from classrooms and library shelves all discussion of social identities that don’t align with the version that the majority favors—and, not coincidentally, that favors the majority.
These efforts seek to forbid any meaningful discussion of how our race burdens or privileges our experience, how the social architectures of advantage and repression shape our society and our lives, how race actually works in the world as we find it and as we have made it, and how race makes us who we are.
Furthermore, as documented by last year’s report from PEN, these efforts have expanded in reach, increasingly targeting discussion of LGBTQ+ status.
In my view, the attacks on LGBTQ+ identity go even further. Those prohibitions don’t just require teachers to pretend that individuals in this population have the same experiences and opportunities as everyone else. They require teachers to pretend that these individuals don’t exist.
Some of these pending laws and policies ultimately won’t be adopted. And some that are adopted will probably be held unconstitutional.
But those possibilities offer cold comfort. We have a long history of adopting bad laws. And bad laws are more easily got than got rid of.
Clarence Darrow put the silliness of the Butler Act on full display in 1925. But it remained the law for over forty years.
That’s a long time to deny where we came from.
It’s an even longer time to deny the characteristics of identity that define who we are.
I’d like to conclude by going back to Henry Reese’s observation about readers rushing to the aid of Salman Rushdie and, with your indulgence, with a bit of a “Chautauqua” of my own.
I think Reese has things exactly right.
And his observation reveals what I view as the greatest evil of banning books and ideas. Not that it’s pointless, although it is. Not that it usually rests on ignorance, although it does. Not that it’s dishonest about its motives, although there’s plenty of that. Not that it offends the normative—and sometimes the legal—principle of free expression, although its tyranny does indeed make a mockery of liberty. Not that it asks us to deny the identities of our fellow human beings, although it unabashedly does so.
No, in my view the greatest evil of book banning is that it has the potential to stunt the empathic development of human beings.
And that’s a serious problem because, given the collective challenges our society currently faces, we need now more than ever the helpers, the people who rush in, the brave souls who will put themselves in between the freedom of the human conscience and the evils that would dispense with it.
Banning books fosters passivity. It fosters fear. It fosters the bystander mentality.
And that, my friends, is how the world ends.
Not with a bang.
Not with a whimper.
But with an audience looking on—silent, indifferent, and inert.
Leaving us, as Justice Jackson also said in the Barnette case, with only “the unanimity of the graveyard.”
Thank you for your patience and attention.
