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Banning Books: Board of Education v Pico [1]

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Date: 2022-12-23

SemDem had an excellent diary earlier today; The real reason for the attack on libraries. I would like to add another wrinkle that has been in the back of my mind.

The case of Board of Education v Pico 1982* that was sent to the SC:

Petitioner Board of Education, rejecting recommendations of a committee of parents and school staff that it had appointed, ordered that certain books, which the Board characterized as "anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy," be removed from high school and junior high school libraries. Respondent students then brought this action for declaratory and injunctive relief under 42 U.S.C. § 1983 against the Board and petitioner Board members, alleging that the Board's actions had denied respondents their rights under the First Amendment.

This concerns our public school libraries. It might be another case that the Federalist Society could set their sights on to move us to a more authoritarian state. If big money autocrats want to control what students learn, what a better way than to rile up MAGAs to go to the school boards to demand their “parental rights” to ban books. We need to fight to counteract their influence at a local level but I think we need to look at the bigger picture, too. This case was decided with a plurality decision that does not set precedent but allows Justices to offer opinions because it was the Court was split with no majority. It’s complicated and I think the links provide better explanation than I could summarize.

Justice BRENNAN announced the judgment of the Court and delivered an opinion, in which Justice MARSHALL and Justice STEVENS joined, that in part states:

With respect to the present case, the message of these precedents is clear. Petitioners rightly possess significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner. If a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books. The same conclusion would surely apply if an all-white school board, motivated by racial animus, decided to remove all books authored by blacks or advocating racial equality and integration. Our Constitution does not permit the official suppression of ideas. Thus whether petitioners' removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners' decision, then petitioners have exercised their discretion in violation of the Constitution. To permit such intentions to control official actions would be to encourage the precise sort of officially prescribed orthodoxy unequivocally condemned in Barnette. On the other hand, respondents implicitly concede that an unconstitutional motivation would not be demonstrated if it were shown that petitioners had decided to remove the books at issue because those books were pervasively vulgar. Tr. of Oral Arg. 36. And again, respondents concede that if it were demonstrated that the removal decision was based solely upon the "educational suitability" of the books in question, then their removal would be "perfectly permissible." Id., at 53. In other words, in respondents' view such motivations, if decisive of petitioners' actions, would not carry the danger of an official suppression of ideas, and thus would not violate respondents' First Amendment rights.

So, I wonder who gave the talking points to MAGAs to frame this issue based on vulgarity so they could hide their true political motivation. It would be up to the SC to decide which argument to land on and I think we can all guess how they would rule if such a case was taken up by them. I’m not sure what we could do with the current Court but I think maybe if we see it in coming we might be able to get our messaging together in advance… And yeah, most will say that Democrats can’t do messaging, but I think we have to try to counter their attacks on Free Speech.

I hope this makes sense, I’ve made so many attempts at writing this... I think this is the best I got.

* I found the legal information on this case at the Legal Information Institute, an independently-funded project of the Cornell Law School

*Bold text was done by me.

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[1] Url: https://www.dailykos.com/stories/2022/12/23/2140813/-Banning-Books-Board-of-Education-v-Pico

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