Censorship should lose in the Arkansas case and students likely will be able to borrow the next Harry Potter book from their school libraries without restriction. What Do Harry Potter, Captain Underpants and Huck Finn Have
in Common?

Still three months away from the scheduled release of the fifth in the best-selling series by J.K. Rowling, Harry Potter is back in the news and topping the charts. But this time it's not The New York Times Bestseller List or the weekend box office numbers. According to the American Library Association's (ALA) Office for Intellectual Freedom, Harry Potter tops the list of books most challenged in 2002, a list that includes books such as Captain Underpants, The Adventures of Huckleberry Finn, and The Chocolate War. Falling out of the top ten, but still the subject of many challenges, are classics like Of Mice and Men, The Catcher in the Rye, and The Color Purple.

A challenge, according to the ALA, constitutes a written complaint, filed with a library or school, requesting that a book be removed because of content or appropriateness. Hundreds of challenges are reported each year, while hundreds more go unreported.

Most challenges are resolved without legal action. But many are not. Last July, the parents of a student in Cedarville, Arkansas, filed suit against the School Board's decision to restrict access to the Harry Potter series. The Board's decision limiting the availability of the book only to students who received parental clearance came in response to a parent's complaint that Rowling's books promoted witchcraft and defiance of authority.

If only we could wave a magic wand and educate parents and school boards about the First Amendment.

Fortunately, that's exactly what happened earlier this month when a dozen national groups advocating free speech joined children's author Judy Blume on an amicus brief in support of the Arkansas parents who are challenging the restriction.

"The board's decision to censor these excellent books tramples on the students' fundamental right to receive information and ideas," the brief said, adding that "[t]he removal of the books from the open library shelves violates the First Amendment to the Constitution, impermissibly restricting students' ability to explore, to learn and to enjoy."

The Supreme Court "has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969). Yet, "it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Id. at 506.

First Amendment challenges to censorship by the government have been common since as early as 1919 when Justice Oliver Wendell Holmes stated the "clear and present danger test" to judge whether "falsely shouting fire in a theatre" is protected by the First Amendment. Since then, the battles have been over such subjects as pornography, patriotism and publication.

In the context of banned books, the first noteworthy case came in 1949 when a lower court in New York ruled against a charge that Oliver Twist and The Merchant of Venice were "objectionable because they tend to engender hatred of the Jew as a person and as a race." Almost 25 years later, the Michigan Court of Appeals decided that Kurt Vonnegut's Slaughterhouse-Five could not be banned from libraries and classrooms because writings on such controversial subjects "should be as welcome in the public schools of this state as those of Machiavelli, Chaucer, Shakespeare, Melville, Lenin, Joseph McCarthy, or Walt Disney."

First Amendment challenges to book bans were dealt a setback in the first case to consider whether a school board could remove books from a school library. In 1972, the Second Circuit Court of Appeals upheld a school board's removal of Down These Mean Streets from junior high school library shelves, stating that "[t]o suggest that the shelving or unshelving of books presents a constitutional issue, particularly where there is no showing a curtailment of freedom of speech or thought, is a proposition we cannot accept."

Just four years later, the Sixth Circuit Court of Appeals chose a different constitutional path and ruled against a school board's decision to remove Catch-22 and Cat's Cradle from the library, stating that "[t]he removal of books from a school library is a much more serious burden upon the freedom of classroom discussion than the [ban on arm bands worn in protest] found unconstitutional in Tinker v. Des Moines School District."

Over the next several years, cases continued to be decided on both sides of the censorship fence, with the majority of state courts coming down on the side of the First Amendment and against book bans. A split continued to develop in the federal courts as well, with the Second Circuit Court of Appeals maintaining its pro-censorship stance when it affirmed a 1980 district court ruling that a school board's removal of The Wanderer and Dog Day Afternoon did not "violate the First Amendment rights of the student plaintiffs before this court.... Nor do we believe that school librarians have an independent First Amendment right to control the collection of the school library under the rubric of academic freedom."

In 1982, the U.S. Supreme Court considered for the first time whether a school board could ban or restrict access to certain books. The books at risk in Board of Education v. Pico, 457 U.S. 853 (1982), were Slaughterhouse-Five, The Naked Ape, Down These Mean Streets, Best Short Stories of Negro Writers, Go Ask Alice, Laughing Boy, Black Boy, A Hero Ain't Nothin' But a Sandwich, and Soul on Ice. In a 5-4 decision, the High Court ruled in favor of the student challenge -- and the books -- declaring that "[l]ocal school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion."

Twenty years have passed since the last book ban case before the Supreme Court. And it may be twenty more before we see another, considering that we are entering the digital age where many literary writings are available on-line. Indeed, the High Court has reviewed several cases over the last few years relating to censorship of the Internet, including a case before the Supreme Court this term that has potential to be very telling in the continuing debate about the First Amendment and censorship.

In United States v. American Library Association (No. 02-361), the Supreme Court heard oral arguments last week in a case presenting whether a federal law restricting the Internet passes First Amendment muster. At issue is the 2001 Children's Internet Protection Act, which requires public libraries receiving federal funds for Internet access to install software that blocks pornography. Court watchers predict that the justices may be more willing to accept the government's defense of the legislation this time than in previous First Amendment challenges to federal Internet restrictions.

Understanding the unpredictability of Supreme Court decisions and the likelihood that a library Internet filter case would not squarely decide the fate of future book ban cases, students don't need to panic yet and pre-order their copy of Harry Potter and the Order of the Phoenix. In the absence of a negative ruling with broad First Amendment implications that carry over to book ban jurisprudence, censorship should lose in the Arkansas case and students likely will be able to borrow the next Harry Potter book from their school libraries without restriction.

March 13, 2003
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