Legal News

Book-Banning 101: Another Look at the Pico Case

By Dan Slater

We admit it. We’re as fascinated with Sarah Palin as the rest of the world appears to be, and more than a little disappointed that her candidacy hasn’t provided more fodder on the legal front.

For a moment, when allegations emerged that Palin voiced concerns about certain books in the public library when she was a city council member and then allegedly attempted to ban certain books when she was mayor, we thought we had an in. But those stories story didn’t wind up amounting to much. At best, as Dale Carpenter points out at the Volokh Conspiracy blog, it remains a she-said-she-said between Palin and then-librarian Mary Ellen Emmons.

No worries, though. Thanks to Professor Volokh, we can still kick around the issues. Volokh asks in a blog post: Under what circumstances can a government-run library remove books based on their ideas? The answer, he claims, is that the Supreme Court has never given an answer. The issue was before the Court in Board of Ed. v. Pico, but the Court did not resolve it. Volokh breaks down the Pico decision thusly:

All the Justices in Pico seemed to agree that removing books for some reasons would be constitutional, for instance if the books used vulgarities that were reasonably seen as inappropriate for the books’ target age group. Four Justices took the view that removing books based on disagreement with the ideas that the books expressed would be unconstitutional . . . But four other Justices took the view that a government’s removal of books from its own library was constitutionally permissible (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans), and thus no further factfinding on the true motives was necessary.

Justice White concurred in the judgment, voting to affirm the lower court decision that sent the case down for fact-finding. But, explains Volokh, he declined to endorse the constitutional view of either group.

Despite the lack of judicial guidance, Volokh thinks “it’s quite proper for people to fault certain kinds of book removal decisions on the grounds that those decisions show narrow-mindedness, or deny library patrons — including children — valuable information, and are thus improper even though they aren’t unconstitutional or even more broadly rights-violating.”

Full post as published by Law Blog - WSJ.com on September 16, 2008 (boomark / email).