Law of the Land

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
— The First Amendment to the U.S. Constitution

Terminology

A Few Definitions to Know

Banned: Describes expression, books, or other materials permanently or temporarily excluded or pulled from library collections, school curriculum, a public forum, or store shelves.

Challenged: Describes expression, books, or other materials that are the subject of a complaint against their value or place in the school curriculum, library collection, or society as a whole. Most challenges result in the material's return to public use. However, each individual challenge requires time for assessment and evaluation. As that assessment takes place, there is usually a temporary time during which the expression or materials are restricted from public use or view. The minimum negative result of each challenge is a temporary censorship. An exclusionary practice.

Censored: Describes expression, books, or other materials that have been challenged, restricted, altered, or banned from public use. An exclusionary practice.

Selection: An inclusive practice meant to provide the best and broadest range of materials for an audience. This process may be considered a subtle form of “censorship,” as selection decisions may be informed by economic constraints, socio-political biases of the collection developer, and community standards of material value.

Key U.S. Supreme Court Decisions Focusing on First Amendment Rights in Schools

Pickering v. Board of Education (1968)

Recognized that teachers have a First Amendment right to voice their views on matters of public concern. Paved the way for the subsequent Tinker decision involving student speech rights.


Tinker v. Des Moines Schools (1969)

Landmark precedent protecting the freedom of speech of students and teachers in public schools. Established the oft-quoted statement of Judge Fortas: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Precedent also clarified “unprotected” speech: obscenity, hate speech, harassment, slander/libel, fighting words.


Island Trees Schools v. Pico (1982)

Imposed limitations on the ability of local school boards to remove library books from school collections.



Connick v. Myers (1983)

Narrowed the circumstances under which public employees (i.e., teachers) can depend upon free expression support. Case decision stated that form and context, as well as content, of the speech act should be considered in determining how it relates to public matters (then applied to Pickering case).


Bethel School District v. Fraser (1986)

Determined that the scope of student speech rights in public schools is not equal to adult freedoms in the society at large. Decision indicated that public schools have an ethical obligation to legislate and inculcate moral values. “Schools must teach by example the shared values of a civilized social order.”


Hazelwood Schools v. Kuhlmeier (1988)

Extended the right of educators and school officials to exercise editorial control (prior restraint) over school-sponsored publications, which the court deemed a non-public forum.


Waters v. Churchill (1994)

Further eroded public employee expression rights by granting the government employer the ability to reach conclusions about a speech act without the same evidentiary rules followed in other court situations or with a jury. If the employer investigates in good faith, an employee can be fired for remarks he/she is believed to have made, regardless of clarity of evidence to that fact.


Morse v. Frederick (2007)

The court clarified that public school administrators may, consistent with the First Amendment, bar students from speech acts promoting the use of illegal substances at a school-supervised event .

Legal Resources on the Web for First Amendment and Intellectual Freedom Issues

ACLU (American Civil Liberties Union)
First-stop resource for IF scholars and anyone facing a censorship issue.
http://aclu.org/


ACLU of Wisconsin
Places the national organization and supports closer to home.
http://www.aclu-wi.org/


Cornell Law School – Legal Information Institute
Supreme Court Decisions
Has easy search features.
http://www.law.cornell.edu/supct/index.html


FindLaw for Legal Professionals
US Supreme Court Center
Searchable information on case law.
http://supreme.lp.findlaw.com/


Law Library of Congress
All things legal in the U.S.
http://www.loc.gov/law/public/law.html


Student Press Law Center
Excellent resource for legal scholar of students' rights.
http://www.splc.org/


U.S. Supreme Court – Media
Text and Audio links to Supreme Court case law.
http://www.oyez.org/


Wisconsin State Law Library
Search features by topic and law names.
http://wsll.state.wi.us/


Youth and Civil Liberties Council
Organization of ACLU of WI for youth.
http://www.aclu-wi.org/youth/index.html

Multimedia Resources

Multimedia Resources
for Educators & Librarians


Forman, Milos, dir. The People vs. Larry Flynt. Columbia, 1996. DVD. Sony, 2004.
For an older youth or young adult audience. Film starring Courtney Love and Woody Harrelson in this historically-based portrayal of adult-magazine producer Larry Flynt’s legal battles with the Religious Right. Few films allow an approachable glimpse into the protocols of the U.S. Supreme Court.



Truffaut, Francois, dir. Fahrenheit 451. Vinyard Films, 1966. DVD. Universal, 2003.
Superb representation of Ray Bradbury’s classic novel starring Julie Christie and Oskar Werner.



Winkler, Irwin, dir. Guilty By Suspicion. Warner, 1991. DVD. Warner, 2004.
Fictional approach to how 1950s McCarthyism and legal proceedings of the House Committee on Un-American Activities destroyed families and careers of Hollywood executives, writers, and actors.


Irons, Peter. May It Please the Court: Courts, Kids, and the Constitution. Live Recordings and Transcripts of Sixteen Supreme Court Oral Arguments on the Constitutional Rights of Students and Teachers. Book and Audio Tapes. New Press, 2000.
Highly useful resource to teach young scholars about court proceedings and crucial First Amendment precedent cases. Includes Tinker v. Des Moines, Island Trees BOE v. Pico, Bethel v. Fraser, and Hazelwood v. Kuhlmeier.


Kagan, Jeremy, dir. The ACLU Freedom Files. DVD. Disinformation, 2006.
Short explanatory documentaries on such topics as youth speak, the Patriot Act, and dissent in American society, as well as other aspects of civil liberty. Combo of media styles to maintain interest and intellect of a high school audience.


National Coalition of Teachers of English. Rationales for Challenged Books. CD Rom. Urbana, IL: NCTE, 1993.
Extensive computer collection of rationales for books challenged in schools and libraries. Conveniently housed in electronic format this resource is an invaluable resource for book selection, curriculum development, and book defenses in the face of a challenge. A typical rationale provides references to reviews, plot summary, redeeming qualities, teaching objectives, methods, and assignments.

Practical Resources for Librarians and Teachers

American Library Association. Intellectual Freedom Manual. 7th Ed. Chicago: ALA-Office of Intellectual Freedom, 2006.
An invaluable resource for the scholar and librarian facing intellectual freedom challenges and questions.


Cambron-McCabe, Nelda H., Martha M. McCarthy, and Stephen B. Thomas. Public School Law: Teachers' and Students' Rights. 5th Ed. Boston: Pearson, 2004.
A standard college text focusing on all things related to public education law. Intended for the legal scholar, yet highly accessible for the educator in need of reference support. Well organized, cited, and indexed.


Crews, Kenneth D. Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions. 2nd Ed. Chicago: ALA, 2006.
Highly usable, well-organized, well-cited reference for school personnel to prepare for IF challenges, questions, and legal decisions. Covers broad range of areas from copyright history to current legislation.


Simpson, Carol. Copyright for Schools: A Practical Guide. 4th Ed. Worthington, OH: Linworth P, 2005.
Another excellent, practical text for the school educator. Covers copyright history to current legislation and ethics. Uses specific, understandable examples. Good citations and reproducible forms to use in the library and classroom.


Torrans, Lee Ann. Law for K-12 Libraries and Librarians. Westport, CT: Libraries Unlimited, 2003.
A must-have reference for the teaching librarian AND classroom instructor for use in a highly litigious climate. Covers topics from fair use and copyright law to icense agreements to legal issues surrounding Web site metatags.

Print Resources on the First Amendment & Censorship

Bald, Margaret. Banned Books: Literature Suppressed on Religious Grounds. New York: Facts on File, 1998.
Part of a four-book series on books challenged throughout history for their religious content and themes. An excellent reference for students and teachers to explore the scope of book challenge history. Highly effective and easy-t0-use text for students to delve further into the analysis and history of a singular text of their choice.


Foerstel, Herbert N. Banned in the USA: A Reference Guide to Book Censorship in Schools and Public Libraries. Westport, CT: Greenwood P, 1994.
A highly approachable text focusing on history, legal precedent, and author perspectives on censorship in the United States.


Gregorian, Vartan. Censorship: 500 Years of Conflict. New York: Oxford UP, 1984.
Strong, basic western history of censorship and intellectual freedom issues. Good visuals. Highly useful to students and teachers, alike.


Harrison, Marueen and Steve Gilbert, eds. Landmark Decisions of the United States Supreme Court I. San Diego, CA: Excellent Books, 1991.
Includes precedent decisions of US Supreme Court on school censorship (Island Trees v. Pico), The Pentagon Papers case (1971), and symbolic speech acts like flag burning (1989).


Harrison, Marueen and Steve Gilbert, eds. Landmark Decisions of the United States Supreme Court II. San Diego, CA: Excellent Books, 1992.
Another handy reference including precedent decisions of US Supreme Court on the banning of Cleland’s Fanny Hill in Boston (1966), Bible readings in public schools (1963), and Larry Flynt’s notorious Hustler (1988) offensive speech case.


Harrison, Maureen and Steve Gilbert, eds. Obscenity and Pornography Decisions of the United States Supreme Court. Carlsbad, CA: Excellent Books, 2000.
Solid reference including US Supreme Court decisions: Reno v. ACLU (1997), Denver Telecommunications v. FCC (1996), and Island Trees v. Pico (1982). Also includes the 1973 Miller test for legally defining obscenity.


Harrison, Maureen and Steve Gilbert, eds. Schoolhouse Decisions of the United States Supreme Court. San Diego: Excellent Books, 1997.
Text focusing specifically on national legal precedents regarding public schools and intellectual freedom. Language of case texts has been altered to allow for readability by the novice instructor and/or students.


Hentoff, Nat. The First Freedom: The Tumultuous History of Free Speech in America. New York: Delacorte, 1988.
A central text for any high school curriculum on First Amendment history. Readable for students at most levels.


Herbert, David L, ed.. Freedom of the Press. The Bill of Rights series. Detroit: Thomson Gale, 2005.
Lower-level reading for high school scholars and quick reference for educators on First Amendment applications to journalistic history, from eighteenth-century England to the USA Patriot Act. A must-have text for all school libraries.


Ingelhart, Louis Edward, ed. Press and Speech Freedoms in America, 1619-1995: A Chronology. Westport, CT: Greenwood P, 1997.
An orderly desk reference for scholars of communication history and the rights and responsibilities attached to intellectual freedoms. Contains useful quotes and references. Unfortunately, the text ignores student speech and press rights.


Karolides, Nicholas J., Margaret Bald, and Dawn B. Sova, eds. 100 Banned Books: Censorship Histories of World Literature. New York: Checkmark, 1999.
A top-notch, must-have reference guide for English teachers and librarians on challenges to much of the strongest literature we have on the library shelves. Entries are easily organized by “reason” for challenge. Each includes history of the book, the challenges, and further readings on the cases.


Karolides, Nicholas J. Banned Books: Literature Suppressed on Political Grounds. New York: Facts on File, 1998.
Part of a four-book series on books challenged throughout history for their political focus and themes. An excellent reference for students and teachers to explore the scope of book challenge history. Highly effective text for students to delve further into the analysis and history of a singular text of their choice.



Karolides, Nicholas J. Censored Books II: Critical Viewpoints, 1985-2000. Lanham, MD: Scarecrow P, 2002.
Comprehensive collection of book rationales to be used for book challenges. This edition picks up where the original 1993 version leaves off. Highly organized and balanced for teacher and student, alike. This text will help the English and social studies teacher prepare for possible challenges to curriculum changes.


Lindop, Edmund. The Bill of Rights and Landmark Cases. New York: Franklin Watts, 1989.
Basic text for scholar of First Amendment rights. Places the development of the Bill of Rights into historical, political, and practical context. Highly readable for high school students studying intellectual freedom issues.


Marsh, Dave. 50 Ways to Fight Censorship and Important Facts to Know About the Censors. New York: Thunder’s Mouth Pr., 1991.
Basic primer on IF issues for the novice censorship instructor. Quick reference.


Parker, Richard A. Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscalossa, AL: U AL P, 2003.
A collection of essays evolving out of the 1999 conference of the National Communication Association on the intersections of First Amendment law and communication practices. The text presents an approachable treatment of legal precedent effects on the evolution of freedom of expression in America. Not a text for students, but an effective resource for instructors.


Shiffrin, Steven H. and Jesse H. Choper. The First Amendment: Cases, Comments, Questions. 4th ed. American Casebook Series. St. Paul: Thomson West, 2006.
Excellent legal reference text for the advanced First Amendment scholar. Includes strong explanations, legal precedent examples, and clear annotations of IF legal language.


Sova, Dawn B. Banned Books: Literature Suppressed on Sexual Grounds. New York: Facts on File, 1998.
Part of a four-book series on books challenged throughout history for their sexual and erotic content. An excellent reference for students and teachers to explore the scope of book challenge history. Highly effective text for students to delve further into the analysis and history of a singular text of their choice.


Sova, Dawn B. Banned Books: Literature Suppressed on Social Grounds. New York: Facts on File, 1998.
Part of a four-book series on books challenged throughout history for their sociopolitical approach, analysis, and themes. An excellent reference for students and teachers to explore the scope of book challenge history. Highly effective text for students to delve further into the analysis and history of a singular text of their choice. Helps prepare teachers for possible challenges to their own curriculum.


Stone, Geoffrey R. Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism. New York: Norton, 2004.
A comprehensive, though highly readable, history of First Amendment rights from a prominent legal scholar. Contains extensive and clear citations with strong indexing. A must-have text for the high school social studies and intellectual freedom instructor.