To live and to learn: On the constitutionality of book bans

By Lindsey Spencer

Book bans in the United States are as old as the printing of the first novel in the colonies. From the censoring of William Pynchon’s The Meritorious Price of our Redemption due to its Christian perspective, to the ban of the Judy Blume classic Are You There God? It’s Me, Margaret for its mentions of puberty and faith, seemingly “controversial” novels have been targeted by special interests and government officials alike for centuries. Despite this long standing issue, only a handful of these cases have been challenged on legal grounds.

Existing federal precedent opposes book bans in American schools. In a 5-4 decision by the U.S. Supreme Court, the 1982 case Board of Education, Island Trees Union Free School District No. 26 v. Pico asserted that school libraries do not have the authority to pick and choose books to censor, as these spaces operate as the cornerstone of education, community, and, most importantly, the tenets of the First Amendment. In banning books from their shelves, libraries would be denying school children access to books and henceforth speech.

However, it’s been over 40 years since this case was decided, and the assault on literary freedom has only compounded over the decades. According to the American Library Association, nearly 9,000 titles were challenged by public libraries and school districts over the last three years. Most of these texts are targeted because of perceived “sexually explicit” themes, and a large percentage of them are written by or about marginalized communities. Not only do these book bans violate the First Amendment, but they also disproportionately silence racialized, underrepresented communities.

It is high time that the Supreme Court reconsider the constitutionality of book banning. The precedent set in 1982 has dwindled in its capacity to protect books and readers across the country. As more school districts introduce potential bans and state courts decide in favor of literary limitations, it is paramount that the Court step in and establish a broad and modern legal standard to protect the right to read.

Appeals courts across the country have considered book bans in libraries and schools. The 8th U.S. Circuit Court of Appeals made a unanimous decision in 2024 to ban books that dealt with gender and sexual identity in the state of Iowa. This summer, the 5th U.S. Circuit Court of Appeals reconsidered a decision that censored the distribution of books on race and gender in a Texas public library. Just two of many legal debacles, these cases were brought forth because of the perceived inappropriate material in the texts. In the Iowa case, the state considered the censorship and placement of books to be a form of government speech, asserting that the ruling would protect students’ and parents’ rights alike. The champions of the Texas ruling claimed that the soon-to-be banned books were “obscene” and therefore subject to censorship.

The right to free speech goes both ways. Federal and state governments and courts are certainly entitled to this sacred ideal. But just as — if not more — importantly, parents, students and readers everywhere are also born with this right. Book bans may invigorate the freedoms of state courts and governments, but they simultaneously limit book lovers’ pursuit of happiness. Additionally, it is oppositional to the principles of the Fourteenth Amendment for the government — at any level — to censor material that they disagree with or merely dislike. Being both socially and constitutionally destructive, book bans must be reevaluated.

In the 1973 Supreme Court case Miller v. California, the Court set standards for what it considered to be “obscene” speech. The ruling stated that outright representations of sexual acts and masturbation could be regulated according to the will of a court, but the definition stopped there. The “value” of literary and visual materials, according to the Court, would be determined by asking oneself if a “reasonable person” would find value in it. With that, the Supreme Court avoided further consideration of the subject.

Distributing books about puberty isn’t “obscene,” it’s educational. Having a book about critical race theory in a public school’s library isn’t “lewd,” it’s valuable. This genre of texts doesn’t embody the “hard core” materials that the Court was referring to in 1973, so they ought not be over-regulated as such. Using this “obscenity” precedent and the protections afforded by Board of Education, Island Trees Union Free School District No. 26 v. Pico, the Supreme Court must once more rule in favor of community values, open dialogue, and the freedom of speech.

In both of these cases, the First Amendment was blatantly under attack. Today, it is once again. Refusing to teach or even distribute materials that a singular governing entity considers to be inappropriate devalues the principles of the First Amendment — if you can’t gain access to a printed material, how are you supposed to effectively communicate or grow? Barring people, particularly young people, from such literary engagement degrades the academic and social fabric of our country. The Supreme Court, and henceforth local courts, are to blame for this devolution.

The Supreme Court must learn from its past mistakes in granting authority to local courts for matters that have dire consequences. The supremacy clause of the U.S. Constitution gives the Court the “final say” when it comes to judicial matters, and it is forgoing this privilege in giving local and state courts so much leeway. Over the centuries, the clause has been used to emphasize the superseding voice of the federal government over that of the states in the context of trade, treaties and more. The states deciding on such consequential freedom of speech matters is a direct undercutting of this principle; with book bans being such an openly constitutional issue, federal courts are the correct avenue for their remedy. 

The Supreme Court ought to take up cases concerning book bans and censures from lower courts in order to set a more concrete, well-intentioned federal precedent to protect the sanctity of our First Amendment rights and the future of education and open dialogue. Book bans may be unconstitutional according to the Supreme Court, but it needs to be made much clearer — the states aren’t listening, so the federal court must step back into the spotlight.