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Is Book Banning Constitutional?

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By: Delaney Szekely, Staff Writer

Photo courtesy of Pixabay

Since the first book ban in 16371 there has been a steady increase to 4,240 unique titles challenged in 2023 in the United States.2 New English Canaan, the first book to be banned in what would become the United States, challenged the Puritan treatment of the Native Americans in the English colonies. Although scholars emphasize there is not a direct connection between this banning and the modern-day book bans in America, the underlying principle of the ‘“power of books to change people’s minds’” is as applicable today as it was in 1637.3

The president of the American Library Association, Emily Drabinski, explains the process of removing a book from a public or school library. After a “challenge” is issued against a book alleging it is “harmful or dangerous,” library officials begin the formal reconsideration process to determine if the book fits the “library selection criteria.”4 Both public and school library boards tend to restrict access to a challenged book immediately.5 A book may be challenged, but the term “banned book” is reserved for books pulled from shelves and removed from circulation.6

While some disfavor the term book ban, as an overly inflammatory and inaccurate description of the current efforts to remove books from public and school libraries7, there is no question that the stories targeted disproportionately represent those of the BIPOC and LGBTQIA+ communities.8 47% of the 1,247 requests to remove library material were stories written by and about the lived experience of BIPOC and LGBTQIA+ individuals.9 Opponents of these books argue that topics of race, gender and sexuality are too mature for younger audiences, and therefore should not be available to them in any form. Books have also been banned for containing themes of sexuality, violence, drug use, and witchcraft.10

Book banning is deeply entangled with First Amendment rights. The process of challenging a book is an exercise of a person’s First Amendment rights of free speech and petition. However, to actually ban a book can be a violation of First Amendment rights. While libraries are within their right to remove books that are “‘pervasively vulgar or educationally unsuitable,’” the Supreme Court addressed the extent to which school libraries can ban books in Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico.11

More commonly referred to as Pico, the case arose out of a controversial book banning at public schools within the Island Trees School district.12 Students from the junior and senior high schools sued after members of the school district’s Board of Education gave an “unofficial direction” to the Superintendent and Principals of the schools to remove the listed books from the libraries for inspection by the Board.13 The books removed were described as “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy.”14 The books were reviewed by a committee or parents and board members who recommended two of the eleven books be removed from circulation. Ultimately, the board rejected the report and determined only one book could be returned to circulation and another could be made available upon parent approval. The remaining books were to be removed entirely from circulation in the school libraries.15 

The Pico Court emphasized that the student’s First Amendment right of  access to information and ideas was violated when the books were removed from their school library.16 However, the Court also determined that while schools do have “significant discretion,” the discretion “may not be exercised in a narrowly partisan or political manner.”17  Although schools do have significant say in what is in their libraries, local school boards are not permitted to ban books “simply because they dislike the ideas contained in those books.”18

Despite the significance of the Pico decision, book banning is still occurring at an alarmingly increasing rate. Indeed, book banning is still the topic of many lawsuits that allege books are being removed from libraries because of the opposition to political and ideological material presented in the narratives.19 Ultimately, removal of books can in fact be a violation of the right to information under the First Amendment when books are attacked arbitrarily based on opposition to the book’s content.20 Such extreme measures to remove books from those who see knowledge emphasize the great power books hold to educate.

  1.  https://www.smithsonianmag.com/history/how-americas-first-banned-book-survived-and-became-an-anti-authoritarian-icon-180982971/ ↩︎
  2.  https://www.ala.org/news/2024/03/american-library-association-reports-record-number-unique-book-titles ↩︎
  3.  https://www.smithsonianmag.com/history/how-americas-first-banned-book-survived-and-became-an-anti-authoritarian-icon-180982971/  ↩︎
  4.   https://www.npr.org/2024/06/04/nx-s1-4941240/book-bans-schools-libraries-censorship ↩︎
  5.  https://www.freedomforum.org/book-banning-unconstitutional/ ↩︎
  6.  https://www.npr.org/2024/06/04/nx-s1-4941240/book-bans-schools-libraries-censorship ↩︎
  7. Id. ↩︎
  8.  https://www.ala.org/news/2024/03/american-library-association-reports-record-number-unique-book-titles ↩︎
  9. Id. ↩︎
  10.  https://www.freedomforum.org/book-banning-unconstitutional/. ↩︎
  11.  https://www.freedomforum.org/book-banning-unconstitutional/ ↩︎
  12.  Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 856 (1982).  ↩︎
  13.  Id. 857 ↩︎
  14. Id. ↩︎
  15. Id. ↩︎
  16. Id. 863 ↩︎
  17. Id. 871 ↩︎
  18. Id. 871-72. ↩︎
  19. https://www.freedomforum.org/book-banning-unconstitutional/ ↩︎
  20. Id. ↩︎
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