Fellow civil libertarians, raise your pocket Constitutions in celebration – it’s Banned Books Week! Now in its 30th year, the annual tradition is a time to reflect on books and other works of literature that have, at one time or another, found themselves banned by the authorities that be. For the ACLU, few principles are more fundamental to our organization than the idea that the government has no business censoring its people in their words and in their writing.
The ACLU of Maine will be celebrating Banned Books Week this year with a special blog series – but more on that in a moment. First, it’s worth exploring why we feel the need to celebrate banned books at all.
Coincidentally, I gave a lecture just last week at Bates College for a seminar class that was titled “Banned Books” and dealt with the subject from all different angles. It was an exciting topic to speak about, and I took the opportunity to trace some of our nation’s legal evolvement on free speech. I wanted the students in the class to recognize that in spite of the First Amendment’s guarantee of “no law…abridging the freedom of speech, or of the press,” the issue of what could and could not be said or printed was far from settled law when the Bill of Rights was ratified in 1791.
One of the areas I chose to focus on was the Supreme Court’s evolving efforts to define the scope of the First Amendment through “tests” that can be used to determine what speech is protected or not. Not surprisingly, some have been friendlier towards free speech than others, and many have unfortunately been used to validate restrictions that the ACLU and other free speech advocates would sharply disagree with.
I talked to students about a few of the most famous examples, including the “clear and present danger” test that was established in 1919, in the case of Schenk vs. United States. In that decision, the Court unanimously upheld the conviction of Charles Schenck for distributing leaflets that advocated against the draft. Schenck was convicted under the Espionage Act of 1917, which, among other things, prohibited “any disloyal, profane, scurrilous, or abusive language about the form of government of the United States.” (Incidentally, the American Civil Liberties Union was founded just one year after Schenck was decided, and we’ve been fighting against censorship of that nature ever since!)
In upholding the constitutionality of the Espionage Act, the Court created the “clear and present danger” test, which asked for future cases to be decided based on this question: “…Whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent.” Using that test, the Court confirmed Charles Schenck’s sentence, and he was sent to prison simply for publishing a leaflet critical of the government.
In 1969, the Supreme Court changed course, unanimously ruling that a fiery speech with violent overtones given at a KKK rally was protected under the First Amendment. In that landmark case, Brandenburg vs. Ohio, the Court issued a new and more protective test, known as “imminent lawless action,” which still holds to this day. It says that in order for the government to forbid or proscribe “advocacy of the use of force or of law violation” the speech in question must do more than simply present a clear and present danger, it must instead be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Later on in my lecture I talked about the “Miller test” for obscenity, a three-prong test that the Supreme Court issued in 1973 as a means of determining what speech is deemed “obscene.” Of the three prongs, the professor in the class was most intrigued by the third: “Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” He was interested both in the phrase “taken as a whole” – which is noteworthy given how many books have been banned simply because of small portions that were deemed too controversial – as well as the concept of “value” in literary, artistic, political, and scientific endeavors.
From the ACLU’s perspective, the government shouldn’t be judging the “value” of a piece of work at all. What lacks “artistic value” to one might be inspiration to another. What lacks “political value” in the eyes of the government might be the seed of a movement that will effect real social change. As we often say at the ACLU, the First Amendment is rarely needed to protect popular speech, as evidenced by these landmark cases. It is controversial work that is in need of the full protection of the Constitution, and yet that is the very type of literature most commonly censored and alleged to be “without value.”
These tests are just a few examples of the ways in which the Supreme Court has attempted to deal with censorship over the course of our nation’s history. While there are high points and low points along the way, there is no doubt that our protections for free speech and free press today are far more robust than they were a century ago or at the time of our founding. Still, books continue to be challenged to this day, and censorship remains a common tool for silencing unpopular messages.
The ACLU will continue to challenge censorship in the courts, but there is no better way to illustrate the problems with book banning than by bringing attention to the very books that were once censored and declared to be valueless. So this week, as we join readers everywhere in celebrating banned books, we’ll do so not simply as an exercise of our right to read, but also as a reminder of the value inherent in so many works of literature deemed at one time to be “too controversial,” “too offensive,” or even “too obscene” for publication.
Here at the ACLU of Maine, we’re celebrating Banned Books Week with a special blog series. Over the course of the week, all seven members of our staff will blog about their favorite banned book. Hopefully by the end of the week you’ll see just how fantastic banned books really are, and you’ll see that censorship has literally been used against some of the most classic books in American history.
Most importantly, as you celebrate Banned Books Week, ask yourself this simple question: What if these books had been banned permanently? What if the censors had succeeded in ridding our society of the great works of literature that have so often been challenged as unworthy of publication? The purpose of Banned Books Week shouldn’t just be to read the books that have been banned in the past, but to think about why they were under threat of censorship, and what lessons we can learn from that.
We hope you’ll check back all week for our personal favorites, but we also welcome you to participate. Let us know what your favorite banned book is. Tell us why it mattered to you and why it’s important that it wasn’t censored forever. You can e-mail me your favorite at [email protected], or follow us on Facebook and post your thoughts in the comment section. We’ll publish user submissions at the end of the week.
Happy reading, and happy Banned Books Week!!