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Book Bans, Lawsuits Resurgent 40 Years After ‘Island Trees’

Aug. 8, 2022, 6:27 PM

Missouri students and Texas patrons are suing their libraries to restore acclaimed titles now removed, while a former Republican Congressional candidate in Virginia Beach, Va., seeks to have two books put on trial for obscenity to minors.

Forty years after the US Supreme Court ruled that school boards can’t take books off library shelves simply because they disagree with ideas or viewpoints, book challenges have erupted anew as a political and cultural flashpoint.

‘Island Trees’ is the only school library case to have been decided by the Supreme Court. Its lead plaintiff, Steven Pico, cautions that as the high court illustrated this term, constitutional rights thought to be established by precedent can be taken away. And, on Aug. 5, a US judge rejected Missouri students’ bid for a preliminary injunction in a suit over school library book removals. His opinion, questioning their reliance on Justice William Brennan‘s plurality opinion as binding, illustrates Pico’s concern.

Nearly 1,600 bans affecting 1,154 titles have been documented between July 2021 and March of this year by PEN America, a group dedicated to preservation of free expression. PEN considers a school book ban to be the removal of or restricted access to a previously available title based on its content.

For 2021, the American Library Association’s Office for Intellectual Freedom reported 729 challenges—requests to remove materials from schools or libraries, involving 1,597 books—a record-setting number since it began keeping count in 2001.

“We’re seeing an inflection point that is drawing on a number of things,” said Deborah Caldwell-Stone, director of the OIF and executive director of the ALA’s Freedom to Read Foundation litigation arm. “What’s available to young people in classrooms and libraries is perceived as a political wedge issue, following the success or apparent success of Virginia Governor Glenn Youngkin (R) in using that as an issue in his gubernatorial campaign,” she said.

“The long and short of it is, we believe we are observing a coordinated campaign to remove materials dealing with racism and LGBTQ lives and experiences from schools and libraries, and impose a kind of orthodoxy based on conservative beliefs around those topics,” Caldwell-Stone said.

Island Trees v. Pico

Led by Pico, in 1976 Island Trees, N.Y., junior high and high school students sued their school board after it took away Kurt Vonnegut’s “Slaughterhouse Five” and 10 other books it deemed to be “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy.”

Pico, interviewed by Bloomberg Law, recalled that when he fought book banning as a teen, “The Diary of Anne Frank” was being targeted and “today it is Art Spiegelman’s ‘Maus,’” a Pulitzer Prize-winning graphic novel also about the Holocaust.

Bans are an attempt to silence people, and distort history, Pico said. “Life in a ghetto or in a concentration camp, or during wartime and slavery, must be portrayed realistically,” he said.

“Our Constitution does not permit the official suppression of ideas,” Brennan wrote for the 5-4 plurality in 1982. School boards may not remove books simply because they dislike the contents, he said.

Challenged books now primarily deal with LGBTQIA topics, racism, and Black Americans’ perspectives on US history, Caldwell-Stone said. Those seeking to ban LGBTQIA books and sex ed books argue they’re obscene for minors, she said. “That’s not true of course, but that’s their argument.”

“Gender Queer: A Memoir” by Maia Kobabe topped both groups’ lists as the most-frequently banned book. Others making the lists include “All Boys Aren’t Blue” by George M. Johnson; “Lawn Boy” by Jonathan Evison; and “The Bluest Eye” by Nobel and Pulitzer Prize winner Toni Morrison.

Also targeted: titles such as “Caste: The Origins of Our Discontent” by Pulitzer-winner Isabel Wilkerson, and books related to sex education and bodily functions, including “It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health” by Robie Harris.

‘A Disservice’

“In 2022, I see politicians using book banning as part of a game plan to frighten parents, to divide communities, to scare voters, and to pit one group of Americans against other citizens for the sole purpose of advancing those lawmakers’ political gains,” Pico said.

Three types of banners are active in the US today, he said: A “handful of sincere parents who are worried about their children being traumatized by books; hateful extremist groups who advocate censorship to indoctrinate their racist, anti-Semitic and homophobic beliefs; and politicians who use fear and division for political gain.”

Not only is it unconstitutional for schools to control the flow of ideas, Pico said, it also does students a disservice if they aren’t appropriately prepared for challenges “such as bullying, gangs, abuse, violence and the dangers of using drugs.”

Suits can be initiated by proponents as well as opponents of book restrictions.

Books on Trial

Virginia Republican Tommy Altman, who lost a primary for the state’s Second Congressional District, seeks a declaration under a decades-old Virginia law that “Gender Queer,” and “A Court of Mist and Fury,” by Sarah Maas are obscene for minors, and a ban on their sale to them.

Barnes & Noble, the books’ authors, and others have asked the Virginia Beach Circuit Court to dismiss the matter. The bookseller raises First Amendment challenges and argues in a recent filing that the law is limited to “adjudication of the obscenity of the book” for adults—there is no mechanism to deem it obscene for minors.

Barnes & Noble also says the books aren’t obscene under controlling law, which looks at whether a work “considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex.”

But Altman says in an August filing that the old one-size-fits-all standard is no longer effective because books featuring extreme, graphic sexual content that hadn’t traditionally been available to minors are now widely available.

The law “must evolve” and restrict children “from having access to obscene materials without the consent of their parent or guardian, just as a minor would be identically restricted when seeking access to an R rated movie,” he says.

A hearing to address the dismissal motions is set for Aug 30.

A Texas ‘Weeding’

In Texas, Llano County officials and library administrators say in court filings that books were pulled there because they met the criteria for “weeding,” a regular process to cull books that are in poor condition, inaccurate, not circulating, or have declined in popularity.

They also say patrons can still access the books because a donor has offered to purchase copies for a special in-house library circulation program.

But the library targeted the books because of complaints about content related to sexuality, gender identity, and racial issues, and then manufactured weeding as a reason to pull them, a recent filing from the patrons says.

The defendants can’t mitigate their First Amendment violation “by creating a secret lending library where, if people somehow discover it exists, they may be able to access certain of the banned books,” those suing said.

Attorneys for the Llano County defendants didn’t respond to a request for comment.

‘Rank Suspicion’

In Wentzville, Mo., two students claim eight books were taken out of circulation in January because board and community members disagreed with their viewpoints.

“The Bluest Eye” and some other titles were put back, but the students say district policies requiring challenged books to stay off library shelves pending review violates their right to receive the information.

The American Library Association’s best practices say challenged materials shouldn’t be pulled from the collection while under reconsideration.

US District Judge Matthew T. Schelp denied their preliminary injunction request on Aug. 5.

Questioning the binding nature of the Island Trees plurality opinion, he also said the students failed to show they had a fair chance to prevail under its framework—which he said recognized “an amorphous, but circumscribed, right” to receive information in a school setting, but tied that right “exclusively to the conduct of the school officials.”

The students “have provided only rank suspicion” to show that the district intended to deny them access to ideas with which it disagreed, let alone that that was the decisive factor, Schelp said.

Removal of books from the district’s schools doesn’t stop any student from reading or discussing them, “which surely would raise a more serious issue,” he said.

Removing a book from a high school library “greatly reduces equity in education by making it more difficult or impossible for students of marginalized communities to access the same information as students who come from privileged backgrounds,” the ACLU of Missouri, which represents the students, said Monday.

The ACLU said it will continue to evaluate all options to ensure the students’ First Amendment rights are preserved and noted the decision “relates only to the motion for preliminary injunction, not the final outcome.”

Lawsuits are tough to pursue, Caldwell-Stone said. People are afraid to serve as plaintiffs because they’re afraid of repercussions, especially in communities where they worry about job or social backlash, she said.

Nonetheless, Pico said, “I am confident the current upsurge in censorship will be challenged both publicly and in the courts because Americans of all ages are acutely aware that their Constitutional liberties can be rolled back and perhaps lost.”

To contact the reporter on this story: Julie Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com