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FAQ: Libraries, bookstores, and free speech

Books in public library

In the last few years, libraries have become an active front in America’s culture war. States are passing laws or rules that impose vague and broad restrictions on what materials school or public libraries can carry. At the local level, some governments are seeking to shut down public libraries that refuse to censor. Some books have even been taken to court to ban them from circulation.  

These are deeply troubling developments. Our democracy depends on citizens’ ability to explore, share, and discuss ideas and information free from government interference.

Unfortunately, the debate around library books tends to obscure more than it enlightens. There are important distinctions — for example, public libraries vs. school libraries, curricular vs. library materials, hostility to views or ideas vs. concerns about age appropriateness — that too often go ignored. 

Below, we address these issues and other commonly asked questions about restrictions on library materials.

How much discretion do public libraries exercise in selecting what to shelve?

The Supreme Court has recognized that public libraries “seek to provide materials that would be of the greatest direct benefit or interest to the community.” They “facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.” Public library collections are generally extensive, providing the public with unfettered access to material covering a broad range of subjects and perspectives. Texas law, for example, directs the state’s libraries to “make available the widest diversity of views,” including “those which are unorthodox or unpopular with the majority.” The American Library Association’s Library Bill of Rights, from which Texas’ law is derived, states libraries “should provide materials and information presenting all points of view on current and historical issues.”

A public library’s discretion is not limitless. Librarians and officials overseeing libraries may not remove books for the purpose of suppressing disfavored views or ideas. 

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Does banning books from public libraries violate the First Amendment?

Public libraries — as well as local or state governments that might impose bans — are government actors bound by the First Amendment. The First Amendment protects not only the right to speak, but the corollary rights to listen and to receive information. And public libraries are the “quintessential locus of the receipt of information.” 

While the government may choose to establish a library in the first place (or not), that power does not authorize transient officeholders to purge library collections of ideas that offend their personal sensibilities, defeating the library’s purpose of offering a wide variety of ideas and perspectives free from censorship. As one court observed, public libraries are “designed for freewheeling inquiry.”

Unfortunately, the debate around library books tends to obscure more than it enlightens. 

When public libraries or outside government actors order removal of a book to restrict access to an idea or viewpoint, they violate library patrons’ First Amendment rights. The government also lacks authority to childproof public libraries, restricting adults’ access to information based on what authorities deem suitable for children — though librarians and library boards have discretion to determine whether a book belongs in the adult or children’s section.

Given that no public library can carry every book in the world, don’t libraries have to curate their collections anyway?

Yes. Public libraries have a finite amount of resources with which to acquire and maintain materials, a finite number of employees to administer collections, and finite shelf space to house them, so they must decide to offer some books and to forgo or not offer others. It’s normal for libraries to regularly review their collections and add or remove books based on factors like accuracy, currentness, relevance, physical condition, and patron interest. 

But the prerogative to curate is not a license to censor. The key question is what motivates the decision to remove a book. Is it government hostility to a certain political viewpoint or philosophical idea and a desire to prevent members of the public from encountering it? If so, that crosses a First Amendment line, and the government threatens the values of intellectual freedom, open discourse, and uninhibited access to information that underpin our pluralist democracy. While First Amendment challenges to library curation decisions typically arise in the context of book removals, librarians should also leave their political and ideological preferences at the door when making decisions about what books to add to a collection.

How are public school libraries different from public libraries?

Like city or county public libraries, public school libraries overall enjoy significant discretion in deciding what to include on their shelves. Unlike public libraries, however, school libraries serve a specific part of the community — K-12 students. So public school libraries necessarily place greater emphasis on age appropriateness and may consider the material’s quality and how it supports the curriculum and the school’s educational goals, which are in turn subject to democratic oversight through locally elected (or appointed) school boards. 

As one court observed, public libraries are “designed for freewheeling inquiry.”

When weeding materials, public school libraries may consider the same factors that public libraries do, such as accuracy, currentness, and physical condition. In addition, public school libraries may consider whether the materials are relevant to the curriculum, of interest to students, or age appropriate. But the government may not order books removed from school libraries out of sheer hostility to disfavored views or ideas.

Does banning books from school libraries violate the First Amendment?

When public school libraries remove books from their collections based on partisan or ideological disapproval of the book’s contents, they violate the First Amendment. The Supreme Court addressed this issue in the landmark case of Board of Education, Island Trees Union Free School District No. 26 v. Pico. A plurality of justices held that public schools have discretion to determine the content of their libraries based on factors like “educational suitability,” but “that discretion may not be exercised in a narrowly partisan or political manner.” The well-reasoned plurality opinion emphasized the importance of established and unbiased procedures for reviewing book challenges.

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Justice Harry Blackmun’s concurring opinion similarly concluded that “school officials may not remove books for the purpose of restricting access to the political ideas or social perspectives discussed in them, when that action is motivated simply by the officials’ disapproval of the ideas involved.” He granted, however, that school officials “must be able to choose one book over another” for “politically neutral reasons,” such as a book’s relevance to the curriculum, writing quality, use of “offensive language,” or appropriateness for the age of the students. 

Although Pico did not produce a binding majority opinion, the plurality decision is faithful to First Amendment principles, and some lower courts have applied the plurality’s reasoning in ordering school districts to reshelve or lift restrictions on library books when those restrictions were motivated by school officials’ disapproval of the books’ ideas.

Don’t public schools have the authority and even a responsibility to ensure their library materials are age appropriate?

Public school librarians may consider whether library materials are appropriate pedagogically and qualitatively, and for the ages of students in the relevant grade levels. These factors are a standard part of librarians’ professional guidelines. For example, one Tennessee school district’s library policy seeks to develop “a school library collection appropriate for the age and maturity levels of the students who may access the materials, and that is suitable for and consistent with the educational mission of the school.”

Many school library book controversies have involved objections to books claimed to be sexually explicit and therefore inappropriate for K-12 students. For example, the American Library Association lists “Gender Queer: A Memoir” as the most challenged book of 2022. Many of the complaints about “Gender Queer” have centered on two panels in the book depicting a character performing oral sex on a strap-on dildo worn by another character. A school might reasonably decide that the book’s sexual elements make it inappropriate for students below a certain age. 

But the prerogative to curate is not a license to censor. The key question is what motivates the decision to remove a book. 

Importantly, age appropriateness is a sliding scale. It’s possible for a book to be appropriate for high schoolers but not elementary school students. School districts should make these distinctions, being careful not to restrict a 17 year old’s access to books based on what is considered inappropriate for a 5 year old.

Inherently, “age appropriateness,” a term often used as a catch-all reason for challenging a book, is subjective and, to that extent, vague. And because of that, in some cases, objections citing age appropriateness may be a pretext for personal aversion to a book’s themes or perspective.

The various motivations for challenging books underscore why schools must follow robust, impartial, pre-published, and transparent procedures when reviewing them. Such procedures will weed out pretextual rationales. Only then can parents and community members have confidence that a school’s decision is based on legitimate factors like pedagogical value or age appropriateness, and not rank disapproval of an idea or viewpoint.

What are some examples of school library books challenged for reasons other than sexual content?

Other book removals and challenges include titles like “And Tango Makes Three” — a story about two male penguins raising a chick — and “The Hate U Give,” a young adult novel about a black teenager whose childhood friend is killed by a police officer, which one school district superintendent said “can be read as having an anti-law enforcement agenda.” While parents or administrators may still consider whether these books are suitable for some grades, the superintendent’s comment demonstrates the risk of the government restricting access to books because of disagreement with the ideas involved, rather than a bona fide evaluation of age appropriateness or quality.

Too often, schools immediately remove books from libraries in response to a complaint, sometimes resulting in hundreds of books suddenly becoming unavailable before any decision on the complaint’s merit.

One Texas school district adopted a policy prohibiting all of its libraries — including high school libraries — from carrying materials that reference “gender fluidity,” which was defined so broadly as to potentially cover the Disney movie “Mulan” and a book about Revolutionary War hero Deborah Sampson. The school board president admitted the policy was about suppressing “an ideology, a perspective.”

These examples highlight the importance of a robust and transparent review process to ensure libraries do not remove books for illegitimate reasons. 

Are school libraries carrying pornography or obscene material?

Many school library books have been challenged for containing sexual elements, and schools can certainly take that into account when determining age appropriateness. But the mere depiction of or reference to nudity or sexual conduct does not make a book “porn,” by any sensible definition of the term. Such a broad definition would sweep in classics like “Slaughterhouse-Five,” “The Bluest Eye,” “Catch-22,” and Anne Frank’s “The Diary of a Young Girl.”

Arguments that challenged books are legally obscene also are generally misguided. The First Amendment does not protect obscene materials, but speech isn’t obscene in a legal sense merely because it depicts or discusses sex. For one thing, the obscenity exception does not reach expression that has serious literary, artistic, political, or scientific value. If a book has such value for even a small number of minors, the government can’t ban distribution of it to all minors on grounds that it’s legally obscene as to minors. 

What about laws or policies that broadly prohibit certain subject matter from school libraries?

Sweeping prophylactic restrictions on certain subject matter — whether sex, violence, drug use, or any other potentially controversial topic — are a blunt tool and a poor substitute for individualized, contextual assessment of an individual book’s value for students. Certainly, these elements are something for librarians and schools to take into account, but they should consider these elements in the full context of the works in which they appear. 

Broadly prohibitive policies can have unforeseen consequences and risk excluding many classic works of literature that would have had lasting educational value for students. For instance, an Iowa law that banned public school libraries — including high school libraries — from carrying any books with a description of a “sex act” led one school district to flag 374 books for review, removing from the shelves classics like “Ulysses,” “The Catcher in the Rye” and “The Color Purple.” In Utah, a school district removed the Bible from elementary and junior high school libraries “due to vulgarity or violence.”

In the K-12 context, is there a distinction between curriculum and library materials?

Yes. Because school attendance is mandatory up to a certain age, students are minors, and they are a captive audience in the classroom, it makes sense for elected officials to have wide discretion over what is taught, taking into account parental input and community values. As discussed above, schools have discretion in managing their library collections, too, but to the extent a library functions as a storehouse of knowledge and materials that students are free to access or ignore, that aspect of school libraries does not necessitate the same level of government control as mandatory curriculum. As the plurality observed in Pico, “libraries afford [students] an opportunity at self-education and individual enrichment that is wholly optional.” They should be a place where students have freedom to explore the wide world of ideas beyond the classroom.

However, libraries can also feature in the curriculum, as with library classes or when students otherwise receive instruction in the library. The selection of books used or featured in these situations is akin to other curricular decisions over which school officials exercise broad control

Don’t parents have a say in what books their children can read?

Yes. The above answer isn’t meant to suggest that parents should have no means to raise concerns about school library materials. Schools, however, should stick to an impartial and objective process for reviewing challenged books’ educational value and age appropriateness (see below). If a school district automatically deferred to every complaint that came its way, there would soon be long stretches of empty space on its library shelves. Schools should take parental concerns seriously but be mindful of not letting a vocal minority decide for everyone what books are available in a school library. As these issues have become politicized, certain candidates and officeholders have encouraged a mob mentality which has led to death threats and even the threat of criminal prosecution, which are likely to have a significant chilling effect on libraries.

Different parents inevitably reach different judgments about what content their kids are mature enough to handle or understand. Some parents may want their own children to have access to a challenged book. In addition to establishing a formal challenge process, school districts should create a way for parents to request that a school restrict only their own child’s access to certain library materials. In many cases, that would be a preferable solution to denying all students access to material that only some parents or community members consider objectionable. 

When is it acceptable for a school library to remove a challenged book? What steps must a library take before removal?

When schools review challenges to library books, they must adhere to established, impartial procedures and objective criteria that ensure decisions rest on legitimate educational factors — not the whims or biases of school officials or the opposition of a vocal minority of community members to certain views or ideas. 

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Any parent or community member wishing to challenge a book’s inclusion in a school library should have to submit a written complaint certifying that they have read the material and explaining why they think it should be removed. Ideally, a committee of various stakeholders (such as librarians, parents, teachers, administrators, students, and community members) would read the complaint and the book in full, and evaluate whether the book should remain in the library based on established criteria. 

The committee should consider factors like the purpose and theme of the material, the quality of the material, professional resources (reviews, awards, etc.), whether the content is appropriate to the ability and maturity of potential readers, whether the material contributes to a diversity of ideas and perspectives in the library’s collection, and whether it makes a significant contribution to literature. Challenged elements should be considered in the context of the work as a whole and its overall educational value. Books should remain on the shelves until a final decision is reached. Too often, schools immediately remove books from libraries in response to a complaint, sometimes resulting in hundreds of books suddenly becoming unavailable before any decision on the complaint’s merit.

When it has finished deliberating, the committee should produce a written decision that explains its reasons for retaining, relocating, or removing the material.

Is a book removed from a library because of objections to its ideas or viewpoint really “banned” if people can still access it elsewhere?

When the government decides to completely and permanently remove a book from a library collection because of hostility to the ideas or views expressed in the book, it is accurate to say the book has been banned from that library (just as it would be reasonable to say a library “bans” food and drink despite the existence of restaurants and supermarkets). Other times a library may remove a book from circulation pending review of a challenge. Even if the book hasn’t (yet) been banned in that scenario, the outcome of the challenge is uncertain and many investigations have dragged on for months, depriving readers access to the books during that time.

It’s true that when a book is removed from a school library, it’s typically still available elsewhere, such as in a public library, bookstore, online retailer, or other internet resource. But some students may have difficulty accessing the material elsewhere, whether because of lack of financial resources, internet access, or transportation. Many books, especially new ones, are not available for free online (without illegally pirating them). And if efforts to ban books from or shut down public libraries persist, students — and adults in the community — increasingly won’t be able to find challenged books there either.

Does the First Amendment protect private booksellers?

Yes. Bans on what materials are available in bookstores are the most clear-cut violations of the First Amendment. These authoritarian efforts are especially concerning because they threaten to make books and their ideas virtually unobtainable. 

The government can ban private distribution of a book that meets the legal definition of obscenity, but that is an extremely demanding standard. As mentioned above, speech isn’t obscene in a legal sense merely because it depicts or discusses sex. For one, the First Amendment’s obscenity exception does not reach expression that has serious literary, artistic, political, or scientific value.

For example, in 2022, a Virginia court dismissed a lawsuit that sought to have “Gender Queer” and “A Court of Mist and Fury” declared obscene for minors and restrict even Barnes & Noble from selling the books to minors. That was the right result

“Gender Queer” is a memoir written by Maia Kobabe, marketed toward young adults and older teens, which recounts the author’s struggles with gender and sexual orientation. While Kobabe does this mostly through descriptions of non-sexual experiences that contributed to Kobabe’s gender dysphoria, the book does contain two panels with sexual content. “A Court of Mist and Fury” is a young adult fantasy novel about the social roles of women in its fictional universe and the protagonist’s efforts to overcome barriers those roles place before her. The protagonist has two sexual encounters in the story. Whatever one thinks of these books — FIRE takes no position on their quality or the age group for which they are appropriate — there is no serious argument that, taken as a whole, they predominantly appeal to the prurient interest of minors (another requirement of the obscenity test, as applied to minors) or that not even a small segment of their intended audience would find that the books have serious literary, artistic, or political value.

The decision in the Virginia case rightly left the authority to decide what children can read with their parents — not an overbearing state government.