Setting up the First Amendment Claim

At the outset, it is worth noting that very few of the books on the “Banned Books List” that forms the center of this controversy have been banned by anyone. Some of the books have been removed from public or school libraries by some localities, but most of the books on the list have simply been the subjects of unsuccessful attempts to remove them from libraries or school curriculums by members of school boards, local governing bodies or members of the general public. There are so many books on the list that either a proponent or opponent of the list can pick several examples to support their positions. For example, The Adventures of Huckleberry Finn, Catcher in the Rye, Beloved, and The Client are on the list, as are Women on Top: How Real Life has Changed Women’s Fantasies, Understanding Sexual Identity: A Book for Gay Teens and Their Friends, and The Joy of Gay Sex.

The pleading filed by the plaintiffs makes the allegations needed in order to make their case under the First Amendment and anticipates the defenses that have been asserted by the defendants. Plaintiffs allege that the defendants violated their freedom of speech by requiring that Mr. Newton, a teacher at Spotswood High School, remove a copy of the banned books list that was attached to the outside of his classroom door. Plaintiffs are seeking permanent and preliminary injunctions to require the defendants to allow Mr. Newton to display the list. Although the plaintiffs’ pleading does a good job of presenting their case, plaintiffs face an uphill battle.

Assuming that the plaintiffs can survive the defendants’ challenges based on standing and exhaustion (see analysis of answer), plaintiffs must prove that their rights have in fact been violated. Freedom of speech is not absolute, and there are United States Supreme Court decisions that recognize that speech may be further restricted in a school setting. In addition, assuming that the plaintiffs have a right to post the list, the court may find that the defendants reasonably accommodated the plaintiffs in this case. The defendants allege that they did not prohibit Mr. Newton from displaying the banned books list inside of his classroom. Rather, they only sought to prohibit him from posting it in the school hallway, as they did not want to appear to endorse the banned books list and did not want younger children from middle or elementary schools who use high school facilities to see it. This is a strong defense.

Plaintiffs have sought a preliminary and a permanent injunction that would require the defendants to allow Mr. Newton to post the list. A preliminary injunction is an injunction (or court order to do or not to do something) that is issued after an abbreviated hearing that is held much sooner than the trial date. The purpose of it is to assist a person who would be irreparably harmed (money would not compensate for the loss) unless the court issued the injunction. In order to get a preliminary injunction, the plaintiffs must prove irreparable harm and a likelihood of success on the merits. This is a very high burden to bear, and we believe that the preliminary injunction will likely not issue. However, this is a good strategy by the plaintiffs because they have obtained an early hearing date (April 10, 10 a.m.), and will, in effect, get two tries to prove their case, once at the hearing date on the preliminary injunction and again on the trial date. We will keep you informed of any other developments in the case.

—JJH