Beavers on Balancing Interests: Harmful Bans & Harmful Books @umlaw1854

Anna Beavers, University of Mississippi School of Law, has published Balancing Interests: Harmful Bans & Harmful Books at 2 We the People--Elon L. Const. L.J. 1 (2023). Here is the abstract.

Efforts to ban books in school libraries are on the rise in the US as part of a broader, conservative-led effort to control school curriculums. Proponents of these bans often argue children have access, or are directly exposed, to obscene or inappropriate material in schools. State officials and local school boards may use this argument as a pretextual justification to target disfavored political and social ideas. The obscurity of obscenity law provides a manipulatable avenue to do so. This Article argues, however, that the Supreme Court’s narrow definition of obscenity renders moot almost all claims that book bans target content within the Constitution’s areas of non-protection. Therefore, book bans and similar discretionary measures to control school content are subject to strict scrutiny as content-based speech regulations. This Article offers a framework for considering the government interest under a strict scrutiny analysis, separating the interest into three categories: preventing moral, emotional, and physical harm. The Article concludes that many of the current efforts to ban books and restrict school curriculums do not pass strict scrutiny and thus violate the Constitution. Part I of this Article examines the “intractable obscenity problem” and the use of obscenity as a pretextual justification for regulation. In Part II, this Article breaks down the governmental interest underpinning book bans into three categories and weighs these interests against the public’s interest in retaining access to a wide array of books. Part III discusses the Supreme Court’s approach to judicial deference in the school context and argues for the adoption of a three-part test to evaluate both the decisions of school administrators and legislators pushing unconstitutional legislation.

Download the article from SSRN at the link.