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Book Bans, the First Amendment, and Political Liberalism

photograph of banned book display in public library

Book bans in public schools are not new in America. But since 2021, they have reached levels not seen in decades, the result of efforts by conservative parents, advocacy groups, and lawmakers who view the availability of certain books in libraries or their inclusion in curricula as threats to their values. In one study that looked at just the nine-month period between July 1, 2021 and March 31, 2022, the free expression advocacy organization PEN America found nearly 1,600 instances of individual books being banned in eighty-six school districts with a combined enrollment of over two million students. Of the six most-banned titles, three (Gender Queer: A Memoir, All Boys Aren’t Blue, and Lawn Boy) are coming-of-age stories about LGBTQ+ youth; two (Out of Darkness and The Bluest Eye) deal principally with race relations in America; and one (Beyond Magenta: Transgender Teens Speak Out) features interviews with transgender or gender-neutral young adults. 41% of the bans were tied to “directives from state officials or elected lawmakers to investigate or remove books.”

The bans raise profound ethical and legal questions that expose unresolved issues in First Amendment jurisprudence and within political liberalism concerning the free speech rights of children, as well as the role of the state in inculcating values through public education.

What follows is an attempt to summarize, though not to settle, some of those issues.

First, the legal side. The Supreme Court has long held that First Amendment protections extend to public school students. In Tinker v. Des Moines Independent Community School District, a seminal Vietnam War-era case about student expression, the Court famously affirmed that students in public schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Yet student expression in schools is limited in ways that would be unacceptable in other contexts; per Tinker, free speech rights are to be applied “in light of the special characteristics of the school environment.”

Accordingly, Tinker held that student speech on school premises can be prohibited if it “materially and substantially disrupts the work and discipline of the school.”

The Court has subsequently chipped away at this standard, holding that student speech that is not substantially and materially disruptive — including off-campus speech at school-sponsored events — can still be prohibited if it is “offensively lewd and indecent” (Bethel School District No. 403 v. Fraser), or can be “reasonably viewed as promoting illegal drug use” (Morse v. Frederick). In the context of “school-sponsored expressive activities,” such as student newspapers, the permissible scope for interference with student speech is even broader: in Hazelwood School District v. Kuhlmeier, the Court held that censorship and other forms of “editorial control” do not offend the First Amendment so long as they are “reasonably related to legitimate pedagogical concerns.”

Those cases all concerned student expression. A distinct issue is the extent to which students have a First Amendment right to access the expression of others, either through school curricula or by means of the school library. Book banning opponents generally point to a 1982 Supreme Court case, Board of Education, Island Trees Union Free School District No. 26 v. Pico, to support their argument that the First Amendment protects students’ rights to receive information and ideas and, as a consequence, public school officials cannot remove books from libraries because “they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, and other matters of opinion.”

There are, however, three problems with Pico from an anti-book banning perspective. First, those frequently cited, broad liberal principles belong to Justice Brennan’s opinion announcing the Court’s judgment. Only two other justices joined that opinion, with Justice Blackmun writing in partial concurrence and Justice White concurring only in the judgment. Thus, no majority opinion emerged from this case, meaning that Brennan’s principles are not binding rules of law. Second, even Brennan’s opinion conceded that school officials could remove books from public school libraries over concerns about their “pervasive vulgarity” or “educational suitability” without offending the First Amendment. This concession may prove particularly significant in relation to books depicting relationships between LGBTQ+ young adults, which tend to include graphic depictions of sex. Finally, Brennan’s opinion drew a sharp distinction between the scope of school officials’ discretion when it comes to curricular materials as opposed to school library books: with respect to the former, he suggested, officials may well have “absolute” discretion. Thus, removals of books from school curricula may be subject to a different, far less demanding constitutional standard than bans from school libraries. In short, Pico is a less-than-ideal legal precedent for those seeking to challenge book bans on constitutional grounds.

The question of what the law is is, of course, distinct from what the law should be. What principles should govern public school officials’ decisions regarding instructional or curricular materials and school library books?

A little reflection suggests that the Supreme Court’s struggle to articulate clear and consistent standards in the past few decades may be due to the fact that this is a genuinely hard question.

Political liberalism — the political philosophy that identifies the protection of individual liberty as the state’s raison d’être — has traditionally counted freedom of expression among the most important individual freedoms. Philosophers have customarily offered three justifications for this exalted status. The first two are broadly instrumental: according to one view, freedom of expression promotes the discovery of truth; according to another, it is a necessary condition for democratic self-governance. An important non-instrumental justification is that public expression is an exercise of autonomy, hence intrinsically good for the speaker.

The instrumental justifications seem to imply, or call for, a corresponding right to access information and ideas. After all, a person’s speech can only promote others’ discovery of truth or help others govern themselves if that speech is available to them. Simply having the unimpeded ability to speak would not contribute to those further goods if others were unable to take up that speech.

Yet even if the right of free speech implies a right to access information and ideas, it may be plausibly argued that the case for either right is less robust with respect to children. On the one hand, children generally have less to offer in terms of scientific, artistic, moral, or political speech that could promote the discovery of truth or facilitate democratic self-governance, and since they are not fully autonomous, their speech-acts are less valuable for them as exercises of their autonomy. On the other hand, since children generally are intellectually and emotionally less developed than adults, and also are not allowed to engage in the political process, they have less to gain from having broad access to information and ideas.

Obviously, even if sound, the foregoing argument only establishes lesser rights of free speech or informational access for children, not no such rights. And the case for lesser rights seems far weaker for teenagers than for younger children. Finally, the argument may be undermined by the state and society’s special interest in educating the young, which may in turn provide special justification for more robust free speech and informational access rights for children. I will return to this point shortly.

All the states of the United States, along with the federal government, recognize an obligation to educate American children. To fulfill that obligation, states maintain public schools, funded by taxation and operated by state and local government agencies, with substantial assistance from the federal government and subject to local, state, and federal regulation. As we’ve seen, the Supreme Court has mostly used the educational mission of the public school as a justification for allowing restrictions on students’ free speech and informational access rights inasmuch as their exercise would interfere with that mission.

Thus, the Court deems student speech that would disturb the discipline of the school, or books that would be “educationally unsuitable,” as fair game for censorship.

This is not radically different from the Court’s approach to speech in other public institutional contexts; for example, public employees’ speech is much more restricted than speech in traditional public forums. The combination of the sort of considerations adduced in the last paragraph, together with idea that speech and informational access can be legitimately restricted in public institutions, may lead one to conclude that student expression and informational access in public schools can be tightly circumscribed as long as it is for a “legitimate pedagogical purpose.”

This conclusion would, I think, be overhasty. The overriding pedagogical purpose of the public school does not cleanly cut in favor of censorship; in many ways, just the opposite. Educating students for citizenship in a liberal democracy must surely involve carefully exposing them to novel and challenging ideas. Moreover, mere exposure is not sufficient: the school must also encourage students to engage with such ideas in a curious, searching, skeptical, yet open-minded way. Students must be taught how to thrive in a society replete with contradictory and fiercely competing perspectives, philosophies, and opinions. Shielding students from disturbing ideas is a positive hindrance to that goal. This is not to deny that some content restrictions are necessary; it is merely to claim that the pedagogical mission of the public school may provide reason for more robust student free speech and informational access rights.

But what about conservatives’ objections — I assume at least some of them are made in good faith — to the “vulgarity” of certain books, irrespective of their intellectual content? Their determination to insulate students from graphic descriptions of sex might seem quixotic in our porn-saturated age, and one might think it is no worse than that. In fact, insofar as these objections derive from the notion that it is the job of public schools to “transmit community values,” as Brennan put it in Pico, they raise an important and unresolved problem for political liberalism.

Many versions of political liberalism hold that the state should strive to be neutral between the competing moral perspectives that inevitably exist in an open society.

The basic idea is that for the sake of both political legitimacy and stability, the state ought to be committed to a minimal moral framework — for example, a bill of rights — that can be reasonably accepted from different moral perspectives, while declining to throw its weight behind one particular “comprehensive doctrine,” to use John Rawls’s phrase.

For example, it would be intuitively unacceptable if state legislators deliberated about the harms and benefits of a particular policy proposal in terms of whether it would please or enrage God, or of its tendency to help the public achieve ataraxia, the Epicurean goal of serene calmness. One explanation for this intuition is that such deliberation would violate neutrality in employing ideas drawn from particular comprehensive doctrines, whether secular or religious, that are not part of that minimal moral framework with which most of the public can reasonably agree.

If state neutrality is a defensible principle, it should also apply to public education: the state should not be a transmitter of community values, at least insofar as those values are parochial and “thick,” rather than universal and “thin.” Concerns about children’s exposure to graphic depictions of sex may be grounded in worries about kinds of harm that everyone can recognize, such as psychological distress or, for certain depictions, the idea that they encourage violent sexual fantasies that might later be enacted in the real world. But conservatives’ worries might also be based in moral ideas that don’t have much purchase in the liberal moral imagination — ideas about preserving sexual purity or innocence, or about discouraging “unnatural” sexual conduct like homosexuality. These ideas, which are evidently not shared by a wide swath of the public, do not have a place in public education policy given the imperative of state neutrality.

Unfortunately, while perhaps intuitively compelling, the distinction between an acceptably “minimal” moral framework and a “comprehensive doctrine” has proved elusive. For example, are views about when strong moral subject-hood begins and ends necessarily part of a comprehensive doctrine, or can they be inscribed in the state’s minimal moral framework? Even if state neutrality can be adequately defined, many also question whether it is desirable or practically possible. Thus, it remains an open question whether the transmission of parochial values is a legitimate aim of public education.

Public educators’ role in mediating between students and the universe of ideas is and will likely remain the subject of ongoing philosophical and legal debate. However, this much seems clear: conservative book bans are just one front in a multi-front struggle to reverse the sixty-year trend of increasing social liberalization, particularly in the areas of sex, gender, and race.

State Neutrality and Public Holidays

photograph of sign at Korean Costco identifying holidays

Now that Christmas is over it is a good time to reflect on its role as an American public holiday and the role of public holidays more generally. Christmas, a holiday originating as a blend of pagan solstice festivals and a Christian celebration of Christ’s birth has become, in the United States at least, a fairly secular holiday. While claims of a War on Christmas are overblown, there certainly is a decline in religious association with the holiday. This should come as no surprise since the rate of religious participation in the United States has been declining for many years. According to Pew, among Millennials 44 percent consider Christmas more of a “cultural holiday.”

What is a “cultural holiday” and what differentiates them from ordinary holidays? According to Etymonline, the word “holiday” derives from Old English “haligdæg,” itself derived from the words “halig” and “dæg” meaning “holy” and “day” respectively. “Haligdæg” though came with the particular meaning of “holy day, consecrated day, religious anniversary; Sabbath” with the sense of “day of exemption from labor and recreation” only coming centuries later.

So, holidays originally were days of religious observance. People would stop working to engage in festivities and religious rituals. The ethics of celebrating these holidays is clear-cut. These holidays originate with the command of one’s god or gods, and the commands of the gods must be followed in obedience of the moral rule “one must obey the gods.” The moral imperative to observe so-called “cultural holidays” is less clear. Any good Christian celebrates Christmas but what justifies the celebration of Christmas for an atheist, whose ethics preclude obedience to the commands of supposed gods, or a Hindu, who worships other gods? Further still, what is the moral imperative for governments and corporations to observe these holidays and to thus give their employees a break from work at these times?

In a religiously homogeneous society, the justification for these bodies to collectively observe holidays is clear: if all their members must observe the holiday as per their shared deity’s commands, they will be unable to do anything else. But in a multicultural society, how do these bodies decide which religious holidays to observe and which to ignore? And, how do they decide what secular holidays to endorse, such as Martin Luther King Jr. Day or Columbus day? There are important consequences to these decisions. The observance of religious holidays by secular governments and corporations may create a public perception of those religions being endorsed or recognized as true, leading to increased marginalization of religious minorities. And, there may be tension between the observance of particular religious holidays by the federal government and the establishment clause of the 1st Amendment. In addition, every holiday provides benefits, in the form of free time, for people as well as costs, in the form of less economic productivity and potentially a lack of work-hours for those who need or want them.

In the United States, the government can only declare “federal holidays,” on which federal employees may not work. Unlike many other countries, there are no “national holidays” on which businesses are required to close. Thus, there end up being a vague list of “public holidays” on which many businesses will close, though many will not, and the observance of holidays is totally up to the discretion of the particular business. Furthermore, businesses may provide either paid or unpaid time off for employees on these holidays. There are ten federal holidays and six public holidays that are “universally embraced,” being endorsed by 90 percent of businesses and organizations. These are New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, and Christmas. Among these, only Christmas is an originally religious holiday. All the others are purely cultural holidays.

What would happen if suddenly Christmas was no longer a federal holiday and if businesses and organizations stopped recognizing it? For starters, many people would be very upset. According to Gallup, 93 percent of Americans celebrate Christmas and having to work on that day would certainly be annoying. However, there is no reason to think there would be mass protests or revolution; it is just a holiday after all. But, since it is so universally popular, people would try to make do. I see two ways people could do so: first, people could simply use their own paid vacation days on Christmas and/or Christmas Eve, and, second, people could observe Christmas on the weekend in years where it falls during the week, or whenever they have a regularly scheduled day off. However, there are problems with both of these approaches that may reveal just why people would be so upset if Christmas were to cease being a recognized holiday.

Americans do not get a lot of time off. Indeed, among other advanced economies, the United States is the only one which does not have a statutory minimum amount of paid time off. Legally, it would be possible for every working American outside of the federal government to work every weekday of the year. The United Kingdom guarantees 28 days of paid time off on top of nine national holidays; France has 25 days and eleven national holidays. Even our close neighbors Canada and Mexico beat us with 10 and 6 days guaranteed off and 9 and 7 national holidays, respectively. Few people could afford to use one of their precious few vacation days on Christmas, and many people do not even have paid time off that they could use to avoid working on Christmas. People’s rallying around these few public holidays has its source in this troubling lack of labor rights.

On the other hand, celebrating Christmas on a day other than December 25th would be an acknowledgment of the total secularization of the holiday. Those who complain about the supposed “War on Christmas” would have new ammunition. And, in reality, many people do consider Christmas a religious holiday. Those who would reject such moves to turn Christmas into a floating holiday like Thanksgiving would have to defend why only Christmas gets to be designated a public holiday, and thus why only Christianity gets a public holiday. Those who presently work on Eid or Diwali or Yom Kippur while devoutly following the corresponding non-Christian religion would have to be given good reason why only Christians get to have a holiday that does not count against their total paid time off.

The consideration of the idea that governments and businesses must observe Christmas thus reveals a number of problems including the limited labor rights in the United States and the problems of recognizing only one religion’s holidays. While any individual certainly has the right to celebrate whatever holidays he wishes in his free time, and no government or corporation tries to prevent this, there are a number of moral problems with the public endorsement of holidays. Holidays allow businesses to pacify their employees without guaranteeing them as much paid time off as do businesses in other nations. And, the fact that only certain religious holidays are publicly endorsed shows how Christianity-centric American society is, callous to those who follow Islam, Judaism, Hinduism, and other religions with holidays of their own.

Everyone likes to be able to stay home and get paid to do so. Few would complain to get paid time off on every religious holiday that exists. But as such a world would probably have no working days at all, it is hardly realistic. So long as there exist public holidays such as Christmas which preference one religion over all others in a society as multicultural as the United States there will be unjust inequity. So long as American workers depend on whatever holidays they can get just to have any paid time off, there will be oppression and control of people by corporations. People like Christmas; they would be a lot more miserable if they had to work on December 25th. But, it is important to consider why people depend so much on having holidays off and how people following other religions are left behind when only Christmas is such a widely endorsed religious public holiday.

Conscientious Exemption, Reasonable Accommodation, and Dianne Hensley

On December 2nd, McLennan County Justice of the Peace Dianne Hensley was issued a public warning for refusing to perform same-sex marriages. She continued to perform marriages for heterosexual couples, but claimed that she was following her “conscience and religion” by abstaining from performing the non-straight marriages.

Hensley has been open about her policy and claimed in 2017 that she qualified for a “religious exemption” from performing this service for non-straight couples. She sees her position as grounded in her Christian faith, and therefore considers herself to be “entitled to accommodations just as much as anyone else.”

For the past several years Hensley’s office has refused to officiate same-sex marriages. In response to requests, Hensely and her staff offer a document explaining her reasoning and indicating other local qualified and willing alternative substitutes.

Hensley would not be the first public official to be reprimanded for not participating in the administration of same-sex marriages. In 2018, an Oregon Supreme Court judge was suspended for three years for refusing to conduct same-sex marriages. In 2015, in a case that garnered a great deal of national attention, Kimberly Davis, now a former county clerk in Kentucky, refused to issue marriage licenses to same-sex couples and was fired (this year she was declared vulnerable to lawsuits).

Hensley’s case is unique, however, because it is not a required part of her job to perform marriages at all. Officiating marriages is a way to earn “thousands of dollars in personal income,” but is optional for justices of the peace. Because officiating is optional, many of Hensley’s like-minded colleagues simply stopped performing them after the Supreme Court granted rights to gay couples.

The right to reasonable accommodation can be murky in cases like these. Roughly speaking, unreasonable accommodations are those that:

Typically accommodations are seen to be unreasonable because of the first or third consideration listed; if, in order to accommodate the needs or conscience of the employee, the job itself must be fundamentally altered, then the employer is not required to make such accommodation. Perhaps relatedly, if making such an accommodation is sufficiently burdensome for the employer, they need not provide it. For instance, a business would not be required to lower production standards or create a new position in order to accommodate an employee.

The justification for exemptions of conscience constitute a difficult area of labor ethics and fit uncomfortably with the right to reasonable accommodation. First, it is intuitive that we would not want a system to be in place where individuals could not live according to their values. However, this is not an unrestricted value, and there are intuitive constraints on when appeals to moral integrity would be reasonable: norms of professions and their role in our society will limit when individuals can conscientiously refuse.

Consider the case of a health care provider who finds it morally objectionable to provide some medical intervention. The context of the role of medical professionals in society plays an important part in determining the extent to which it makes sense to allow for such professionals to selectively abstain from providing services based on their conscience. Here, the particular social value that the training and care involved in health care providers make the professional standards especially pertinent. They possess both knowledge and skills that the public does not generally have and therefore the public must rely on them for part of their lives (health maintenance) that is particularly significant.

Thus, while moral integrity is deeply important, appropriate refusals must not run afoul of the role that professionals play in our society. In this, health care providers are likely in a similar category as justices of the peace: specialized training and skills that the general public relies on for unique and irreplaceable services.

One of the motivations behind the Texas commission’s complaint against Hensley is that, due to her discriminatory practices regarding officiating marriages, she is displaying a lack of ability to be impartial, which is certainly a requirement of a justice of the peace. This again might mirror concerns for health care providers that select which interventions to provide – such practices may indicate a provider is not being guided by norms of the profession and make decisions regarding medical interventions on medical grounds.

Some professions allow for personal conscience to guide professional decisions, but for most, the decision-making process for what to do is grounded in the professional aims, so one’s individual values are given sway only when the profession itself allows for leeway in making the decision. For example, a teacher who assigns grades randomly instead of according to some system grounded in pedagogy is flouting the professional norms of teaching. Teachers can assign grades on a number of bases, as long as they are pedagogical grounds – as long as they are serving recognizable pedagogical purposes. An instructor’s normative attitudes may be able to play some role in how they make teaching choices, but only in spaces that the profession allows for some leeway.

Similarly, in the healthcare profession, providers can adopt different degrees of risk aversion and styles of patient rapport, different philosophies of patient care and approaches to remaining up to date with treatment standards, but it is hard to see where any extra-medical leeway would come in: in controversial or difficult decision scenarios, health care providers are still expected to make decisions on medical grounds. Similar standards would apply for justices of the peace regarding the performance of their duties.

The particularly significant role that justices, teachers, and health care providers play in our society may be underlying the difficulty in motivating an exemption of conscience. That such professionals have special skills that provide critical services for public welfare means that it is important they not arbitrarily practice their professional role.

Compare these cases to the role conscience might play in other professions where the role is less integral to society’s well-functioning. Imagine a concierge is an ethical vegetarian, believing that consuming and purchasing meat products is against the dictates of morality. On the surface, this wouldn’t have a significant impact on her ability to be a good concierge. However, part of the job of a concierge is to give visitors information in order to guide them in the foreign city. Say this concierge considers it to be morally wrong to eat at steakhouses and that she would be morally complicit in the wrong of eating at steakhouses were she to direct patrons in their direction. Of course we wouldn’t want to make the vegetarian do things that make her uncomfortable, or lead an inauthentic life – and this is what grounds the value of moral integrity and the push to find grounds for conscientious refusals.

However, if the concierge makes decisions about how to treat visitors, or about how to go about her job based on non-concierg-ing reasons, it seems she is not meeting this standard for the profession; she is being a bad concierge. Concierges should guide visitors, and if the vegetarian concierge doesn’t do that, she is failing at conceirg-ing. It seems like this is similar in structure to other scenarios we could imagine as a matter of philosophical fiction, such as a Christian Scientist HCP or an Amish Apple store Genius. For such individuals, they have sincere moral grounds to refuse to engage with patients or clients in the way their profession dictates. So are these individuals’ moral attitudes consistent with their performance of their job or candidates for reasonable accommodation?

As for Hensley, she has support to “practice her religion” from members of conservative religious groups. They do not engage with the question of whether or to what extent some careers may simply be incompatible with the free practice of some religions. Since 2015, the Texas Justice Court Training Center has said that permitting a justice of the peace to perform only straight marriages lacked legal authority.

On Labeling Over-the-Counter Homeopathy

Homeopathy, the medical philosophy that “like cures like,” is big business. According to the latest estimates from the Centers for Disease Control, $2.9 billion were spent in out-of-pocket costs by adults in the United States for homeopathic medicine in 2007. The medical philosophy of homeopathy, developed in Germany over 200 years ago, posits that any substance that produces certain symptoms in a healthy person can also be used to cure those symptoms in a sick person. Homeopathic cures introduce one of these substances to cure a person of their symptoms.

Continue reading “On Labeling Over-the-Counter Homeopathy”