This article is adapted from the newly revised Third Edition of “The Writer’s Legal Guide: An Authors Guild Desk Reference” by Tad Crawford and Kay Murray, available for $19.95 plus $5 shipping and handling (NY State residents must add sales tax). Order toll-free from 800/491-2808, by mail from Allworth Press, 10 East 23rd Street, New York, NY 10010, from the Authors Guild at 31 East 28th Street, New York, NY 10016, or via www.allworth.com. The book is free online to members of the Authors Guild.
The First Amendment limits the government’s right to censor expression by punishing or restraining its dissemination. Expression may be censored absolutely only if it is obscenity or speech that creates “a clear and present danger that it will bring about the substantive evils that Congress [or the state] has a right to prevent.” Objectionable material that does not fall into either of these categories may, however, lawfully be kept from minors.
Dirty Words vs. Dirty Books
Material containing sexual content has been persecuted since Victorian times. Prior to 1973, the test for banning erotic expression, as developed in Britain and substantially followed in the U.S., was whether the material “tended… to deprave and corrupt those whose minds are open to such immoral influences.” In the United States, this led to bans on such literary works as Giovanni Boccaccio’s Decameron, John Cleland’s Fanny Hill, Gustave Flaubert’s November, Henry Miller’s Tropic of Cancer, James Joyce’s Ulysses, D. H. Lawrence’s Lady Chatterley’s Lover, Eugene O’Neill’s StrangeInterlude, and Edmund Wilson’s Memoirs of Hecate County. The law applied equally to works of clear literary merit and to hard-core pornography. Obscenity prosecutions became a common way to prevent people from having access
hJsexually explicit and violent works. Prosecution of authors, publishers, and distributors–and seizures of books by the post office, customs, and the police–were commonplace until the mid-20th century.
The tide began to turn in favor of free expression in 1934, when the Second Circuit Court of Appeals held that Joyce’s Ulysses was not obscene and could freely pass through U.S. customs. The court ruled that the use of “dirty words” in “a sincere and honest book” did not make the book as a whole “dirty.” This distinction became a precursor to the most important part of the current legal definition of obscenity.
In 1957, the Supreme Court ruled that obscenity does not warrant the protection of the First Amendment, so obscenity prohibitions are constitutional. In 1973, however, the Court formulated a test for assessing whether a particular work is obscene. In Miller v. California, the Supreme Court granted states and localities autonomous, but limited, authority to address obscenity in their communities.
Limits on “Community Standards”
In assessing material, a jury must determine: “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” If the answer to all three questions is “yes,” the work is obscene, and local authorities may remove it from circulation and prosecute the author, the publisher, even the distributor.
Most pornographic work is not legally obscene because the Court subsequently has clarified that “contemporary community standards” may not be employed to assess a work’s literary, artistic, political or scientific merit. That particular prong of the definition must be determined by a national “reasonable person” standard. Thus, if a work is intended to convey “serious literary, artistic, political, or scientific value” to any material degree, it cannot be deemed obscene. Most pornography is considered to convey such value.
The First Amendment also offers procedural safeguards when a work is challenged as obscene. Law enforcement officials may not seize the work simply because they think it is obscene. First, they must serve notice of a judicial hearing to make the determination and get a court ruling based on all relevant evidence.
Obscenity is a complex legal area. If you fear that an obscenity issue could arise in connection with your work, or you are facing such an issue, consult a lawyer.
Banned from the Bookshelves
Most states give school boards the authority to dictate curricula, course books, and library holdings free from outside interference, but even those decisions have First Amendment limitations, especially regarding removal of books from school libraries.
Book censorship in the schools expanded in the mid-1980s and throughout the 1990s. The Color Purple by Pulitzer Prize winner Alice Walker was banned in Souderton, Pennsylvania, after critics called the work “smut,” “pornography,” and “trash.” Walker keeps good company with such authors as Toni Morrison, J. D. Salinger, James Baldwin, Mark Twain, and others whose books have been banned in public schools within the past few years. Targets of censorship campaigns (the vast majority of which occur on the local level and receive little attention elsewhere) also include works that some people see as politically insensitive. For example, The Autobiography of Miss Jane Pittman, by Ernest Gaines, was removed from a seventh-grade class because it contained “slurs.”
Censorship campaigns in the public schools and school libraries usually rely on book banning and removal to inhibit access to works found objectionable by parents, advocacy groups, school boards, and community leaders. Their campaigns have led schools to refuse to purchase certain books, remove existing books from libraries, place them in restricted or infrequently used areas, and remove them from a teacher’s curriculum. Most censorship attempts focus on the selection or placement of books in public school libraries.
Setting a Book-Removal Standard
In 1982, the Supreme Court analyzed the constitutionality of book removal from school libraries and curricula in Board of Education, Island Trees School District v. Pico. In this case, the school district’s board of education removed nine books from school library shelves in response to a list of “questionable” books the board received from a conservative pro-censorship group named PONYU (Parents of New York United). Kurt Vonnegut’s Slaughterhouse-Five and Richard Wright’s Black Boy, two of the nine, were characterized as “anti-American, anti-Christian, anti-Semitic, and just plain filthy.”
The Supreme Court sought to find a balance between the First Amendment right of students to read freely and the right of school authorities to exercise discretion over student access to books within the public educational system. Although the Court did not decide directly that the board of education’s actions were unconstitutional, it did set a standard for subsequent book removal issues, holding that a school board may maintain wide authority concerning removal of books, but that it may not institute such actions because the works contain “partisan or political views [the board] did not share.”
The decision was premised upon the understanding of a student’s right to access information when engaged in “voluntary inquiry,” coupled with the recognition of a library’s role as a place of inquiry essential to the student’s understanding and maturation. Distinguishing an educator’s selection of books for the curriculum from a school administration’s banning of certain books in the library system, the Court said that educators–that is, the board–should have the right to select what will be taught in their classes, as long as they do not ban works based on partisan or political views.
Room to Play a Role
Controversies over censorship continue in part because the Court did not formulate guidelines articulating how school authorities may choose books for libraries. In addition, the Court found that school authorities will have acted within constitutional limits if books are removed because they are deemed vulgar or of questionable “educational suitability.” These two exemptions carry great ambiguity and, depending on interpretation, can either broaden or narrow students’ rights.
School systems maintain formal procedures for the approval of books for libraries and curricula. People who want to censor books in schools have learned these procedures and used them to their advantage. Opponents of censorship can learn them too and then exercise persuasive power through community involvement.
Community views of what is offensive and what is appropriate are central to the censorship debate and directly determine outcomes because many cases never reach a courtroom. In fact, the active participation of publishers, writers, and anti-censorship groups in schools’ administrative proceedings has helped to defeat many attempts to censor what young people may read.
Copyright 2002 Tad Crawford and the Authors Guild, Inc.
Tad Crawford is an attorney, Publisher at Allworth Press in New York City, and the author of “Business and Legal Forms for Authors and Self-Publishers.” Kay Murray is Assistant Director and General Counsel of the Authors Guild, Inc., the nation’s largest organization of published authors.