We answered some of the most common questions people ask us about censorship, the First Amendment, and kids. Nothing in this document is legal advice, and if you believe that the government has violated your First Amendment rights, you should contact a lawyer. Please don’t hesitate to contact us at [email protected] if you have additional questions. We offer a downloadable, editable classroom presentation on free speech and the First Amendment for teachers.
Censorship and the First Amendment
The First Amendment and Kids
Censorship in Public Schools
What does the First Amendment say?
“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.”
What is censorship?
Censorship is the suppression of speech, written works, art, film, or other forms of expression that authorities consider unacceptable or dangerous.
Why is censorship bad?
From a practical standpoint, censorship prevents people from spreading ideas, opinions, and important messages. This can have catastrophic consequences, especially when dissidents, activists, writers, and scientists are censored; people will not be able to learn about salient issues and government policies.
From a moral standpoint, censorship is bad because it prevents people from exercising a fundamental human right: freedom of expression. At its extreme, censorship forces people to live in constant fear that anything they say or write may lead to punishment.
Can the government censor me? What about private companies, like social media providers, or my employer?
The First Amendment guarantees the freedoms of speech and press and almost always prevents federal, state and local governments from stopping people from speaking or from penalizing or jailing individuals for speaking their mind. “Speech” extends far beyond the spoken word. It also includes countless forms of expression such as writing, painting, photography, music, displaying signs, peacefully protesting, symbolic acts (like burning a flag or hanging an effigy), and remaining silent—just as the government cannot stop you from speaking, it cannot force you to speak.
The First Amendment does not stop private actors like employers, businesses, social media networks, and private or religious schools from censoring workers, visitors, users, and students.
Can I say or write whatever I want without fear of the government punishing me?
No. Government can put reasonable limits on when and how you speak. For example, it can ban using megaphones in a quiet residential neighborhood at 1:00 in the morning.
Also, there are several narrow categories of speech that are unprotected by the First Amendment.
- Obscenity
- Child pornography
- Defamation (knowingly lying about other people in order to damage their reputation, including libel (written defamation) and slander (spoken defamation))
- Incitement to imminent lawless action (speech that is intended to and likely to cause other people to break the law)
- Fighting words (words that, according to the Supreme Court, “by their very utterance inflict injury or tend to incite an immediate breach of the peace”)
- True threats (a serious claim that one intends to harm another or break the law)
- Copyright violations (reproducing or plagiarizing material that belongs solely to its creator)
What exactly is obscenity?
In the United States, the free speech exception for obscenity is very narrow. In order for speech to be obscene, it must meet three standards:
- The average person, applying the current standards in their community, would believe that the work taken as a whole appeals to the prurient interest. “Prurient interest” means a “morbid, degrading and unhealthy interest in sex.”
- The work must depict sexual or excretory functions in a patently offensive way.
- The work taken as a whole must lack “serious literary, artistic, political, or scientific value.”
Note that the work must be “taken as a whole.” Thus, it is impossible for a single chapter in a book to be “obscene,” because the book must be taken as a whole – either the entire book is obscene, or not.
Are Facebook and Twitter violating the First Amendment if they censor my posts?
As Facebook and Twitter are private actors, they are not obligated to obey the First Amendment. Social media platforms are allowed to choose what does and what doesn’t go on their platforms.
What if I want to protest in a large, privately-owned space that is open to the public, such as a mall or a stadium?
In most states, this can be prohibited by the owners of the space. The First Amendment does not prevent them from ordering you to stop protesting or to leave. The First Amendment Center provides a detailed legal explanation of this concept. However, in some states, such as California, the state’s constitution protects your right to protest in shopping malls because they function, in practice, as public spaces.
Why does the First Amendment matter in schools?
The First Amendment safeguards the right of every American to speak and think freely. Its promise of freedom of expression and inquiry is important to educators and students. The First Amendment protects educators’ ability to exercise their judgment in accordance with professional standards and provides the latitude to create learning environments that help young people acquire the knowledge and skills needed to become productive, self-sufficient, and contributing members of society.
Our founders recognized that public schools are a vital institution of American democracy. But education, they also knew, involved more than reading, writing, and arithmetic. Education in a democratic society requires developing citizens who can adapt to changing times, make decisions about social issues, and effectively judge the performance of public officials. In fulfilling their responsibilities, public schools must not only provide knowledge of many subject areas and essential skills, but must also educate students on core American values such as fairness, equality, justice, respect for others, and the right to dissent.
Rapid social, political, and technological changes have escalated controversy over what and how schools should teach. While issues like sexuality and profanity have raised questions for generations, debates are becoming more and more contentious thanks to increasing cultural, religious, ethnic, and religious diversity. Thus, educators frequently face a daunting task in balancing the educational needs of a diverse entire student body while maintaining respect for individual rights. The First Amendment establishes the framework for resolving some of these dilemmas by defining certain critical rights and responsibilities. It protects the freedom of speech, thought, and inquiry, and requires respect for the right of others to do the same.
Public schools embody a key goal of the First Amendment: to create an informed citizenry capable of self-governance and political debate. A democracy relies on an informed and critical electorate to prosper. Not surprisingly, universal access to free public education has long been viewed as essential to realizing our democratic ideals.
Do kids have the same free speech rights as adults?
Yes, almost entirely. Kids and adults have the same free expression rights in public. All Americans, regardless of age, enjoy the same rights to speak, write, create, and participate in political demonstrations. The government cannot jail or fine kids who exercise these First Amendment rights. The Supreme Court has also ruled that government cannot prevent kids from accessing violent video games, books, or movies.
However, governments can impede kids’ access to material that is “harmful to minors,” or “obscene as to minors.” That means that minors can be banned from accessing material which is usually defined as the depiction of nudity, sexual conduct, sexual excitement or sadomasochistic abuse, which (1)Predominantly appeals to the prurient interest of minors in nudity, sex, or excretion, and (2) Is patently offensive with respect to what is suitable material for minors, and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.
Generally speaking, as long as pornography is not involved, kids and adults have the same First Amendment rights.
Does the First Amendment apply in public schools?
Yes. However, there are some narrow limits to free speech in schools. Supreme Court decisions have made it clear that the right to free speech and expression can sometimes be subordinated to achieve legitimate educational goals. A school is not comparable to a public park where anyone can stand on a soapbox or a bulletin board on which anyone can post a notice. Within the educational setting, the right to free speech is implemented in ways that do not interfere with schools’ educational mission.
For more information about this difficult area of law, see our resource guide: The First Amendment in Schools.
Does the First Amendment apply in private schools?
No. However, states can pass laws which apply free speech protections to private schools.
Can public school students protest during the Pledge of Allegiance or national anthem?
Yes, if they do so non-disruptively. In the 1943 case West Virginia v. Barnette, the Supreme Court ruled that students could not be forced to participate in the Pledge of Allegiance. Students have the right to sit, kneel, or raise their fists during the reciting of the Pledge or singing of the national anthem as long as they remain quiet and respectful and do not interfere with those who wish to participate.
For more information, see our guide to these protests, which contains a timeline of recent controversies.
Can public schools punish students for off-campus speech or social media use?
Schools can definitely punish students for off-campus speech that harasses another student or staff member, or which threatens violence against a student or staff member. Schools can definitely not punish students for off-campus speech that is profane, or which advocates illegal drug use or other illegal activity. As for speech which might disrupt school, it is much harder for schools to punish that speech than for schools to punish the same speech that takes place at school. That is especially true of political or religious speech. However, everything depends on the facts of the individual case. For more information, see our guide to censorship and social media.
Can public schools and public libraries filter the internet?
Legally, yes. Schools and public libraries can and do filter internet access to prevent children from accessing material that is obscene, child pornography, or “harmful to minors.” (See definition above) As the American Library Association notes, schools and public libraries that receive federal funding are required to install such filters. However, that law only requires blocking images, not text. Also, public libraries must disable the filters when adult patrons ask them to do so.
School filters frequently prevent students from using the internet for non-educational purposes like playing video games.
What is wrong with filtering the internet?
The main problem with internet filters is that they frequently over-block material, preventing access to perfectly harmless websites. This stops internet users from accessing important information. Because filters rely on keywords to block inappropriate material, any websites that contain those words might be blocked. For instance, filters designed to target the word “breast” have blocked access to information about breast cancer and chicken breasts. Keyword filtering thus frequently prevents users from accessing scientific information, news articles, and museum websites. Filters also have been used to prevent students from accessing “controversial” websites like LGBT-friendly pages. For more information, see our guide to internet filters.
Do student newspapers have First Amendment protections?
Student newspapers do not have full free press rights. The 1988 Supreme Court case Hazelwood School District v. Kuhlmeier recognized that school officials can exercise prior restraint over school-sponsored student publications. This means that educators can censor articles before they are printed. However, some states have passed laws that forbid prior restraint of student newspapers. For more information, visit the Student Press Law Center.
Are public school dress codes a violation of the First Amendment?
With few exceptions, public schools may impose dress codes. Although students express themselves through their clothing, schools may limit such expression in order to prevent disruptions and to ensure that students are dressed professionally or respectfully.
Countless schools ban “inappropriate” outfits such as swimwear, pajamas, and revealing clothing. Schools also can justifiably ban clothing that contains profanity, endorses illegal activity, or is associated with local gangs.
While schools can enforce content-neutral dress codes (e.g., no t-shirts of any type), they cannot ban otherwise permissible clothing that conveys political messages (e.g., t-shirts that say “Vote for Clinton” or “Repeal Obamacare”).
How should schools balance the requirements of the First Amendment and the educational mission of the school?
Educators need to balance First Amendment obligations against other concerns: maintaining the integrity of the educational program, meeting state education requirements, respecting the judgments of professional staff, and addressing deeply-held beliefs in students and the community. Educators enjoy wide latitude in exercising their professional judgment and fulfilling their educational mission if their decisions are based on sound educational and pedagogical principles and serve to enhance students’ ability to learn. Courts generally uphold a decision to remove a book or discipline a teacher if the action appears to serve legitimate educational objectives, including administrative efficiency. The decisions most vulnerable to legal challenge are those motivated by hostility to an unpopular, controversial, or disfavored idea, or by the desire to conform to a particular ideological, political, or religious viewpoint.
Administrators and educators who reject demands for censorship stand on strong ground; most professional educational organizations promote free expression and academic freedom, and many state educational standards call for students to be exposed to differing points of view. Access to a wide range of views and the opportunity to discuss and dissent are essential to education and serve schools’ legitimate goals to prepare students for adulthood and participation in the democratic process. It is highly improbable that a school official who refused to agree to censor something with educational value would ever be ordered by a court to do so. They may, however, be subject to massive public pressure.
How big of a problem is censorship in schools?
Censorship occurs every day. Often it’s invisible, taking the form of self-censorship: such as when a teacher decides not to use a particular educationally valuable story or book because of fear of controversy or when a librarian decides not to order a relevant magazine because of fears about possible complaints. No one can quantify this kind of “chilling effect” and its consequences for education. The American Library Association, which tracks and reports censorship incidents, estimates that for each incident reported, there are four or five that go unreported.
Can schools ban books?
Schools unfortunately can and do remove unpopular or controversial books from their classrooms and libraries. However, schools cannot punish students who bring their own copies of the book and read it during their free time.
Which books have schools banned?
The American Library Association maintains an excellent list of the most frequently challenged books. From 2010-2019, some of the most challenged books included The Absolutely True Diary of a Part-Time Indian, Captain Underpants, The Adventures of Huckleberry Finn, The Kite Runner, The Bluest Eye, George, To Kill a Mockingbird, and The Hunger Games.
Why do schools ban books?
Schools generally ban books to avoid bad publicity and to pacify angry parents. Most book bans start with a parental complaint. When a parent believes a book should not be in a classroom or library, he or she files a complaint with the school. Most school districts will form a review committee that will issue a recommendation as to whether or not the book should be banned. Depending on the district’s specific policy, the principal, school board, or superintendent will then make a final decision.
Why do parents complain about books?
Some parents worry that books can harm their children by teaching them about dangerous behaviors like smoking and drinking or by exposing them to “inappropriate” themes such as sex, violence, and racism. Religion is also a very common reason for wanting to ban books; some Christian parents have alleged that Harry Potter’s promotion of witchcraft is offensive to Christianity, and others have complained that reading pro-LGBT books violate their children’s religious beliefs.
How should a formal complaint be filed?
Different school systems implement complaint procedures in different ways, but most provide that:
- Complaints must be made in writing;
- Complainants should identify themselves both by name/address and their interest in the material (i.e., as a parent, student, religious leader, etc.);
- Complainants must have read/seen the entire work objected to;
- The complaint must be specific about the reasons for the objection;
- Complaints should request a specific remedy (i.e., an alternative assignment for an individual, or removal/exclusion affecting the entire school community)
How should a school respond to a parent complaint?
A committee – often composed of instructional staff, library staff, and administrators, and sometimes including students and parents – ordinarily processes complaints using pedagogical criteria. Its recommendation, though usually advisory, is the basis for the final decision about the materials at issue. The recommendation should only be ignored if there are compelling educational reasons. Materials should never be removed unless the complaint procedures are followed, and materials should never be removed prior to completion of the complaint process.
In anticipation of parent complaints, what can schools do to prepare?
Many school districts adopt formal policies and procedures for responding to complaints about materials–and for good reason. They clarify how complaint processes work; help faculty, staff, and administration fulfill their legal obligations; let parents and students know what criteria are used for removing materials and how they are applied; provide opportunities to understand more about community perspectives and values; and protect teachers’ academic freedom.
When materials are challenged, schools with well-articulated processes for handling complaints and reviews are more likely to resist censorship pressures than districts that lack such guidelines. Having policies in place and following them scrupulously ensures that complainants will receive due process, and that challenged materials will be judged on their educational merits rather than personal opinion. It also makes it more likely that all parties, including the complaining parent, feel that their concerns have been fairly heard and considered. It is important for teachers and administrators to be familiar with these policies and understand their significant function. Armed with knowledge of these policies, school officials are less likely to submit to pressure or react with unilateral decisions to remove books.
What should be in the school curriculum policy?
It is advisable for policies to contain a statement supporting intellectual and academic freedom, and an explanation of the importance of exposing students to a wide variety of material and information, some of which may be considered “controversial.” Policies should also clearly indicate that certain kinds of objections do not provide legally permissible grounds for removal, exclusion or restriction. Disagreement with a specific idea or message — and personal objections to materials on religious, political or social grounds — are the most common grounds for challenges and the most suspect. Such concerns may justify a parent’s request that his or her child be assigned alternate material, and if shared more widely, may suggest the need for discussion about how teachers and school officials can better explain the material’s educational value, and ways in which any perceived harms can be alleviated, perhaps through inclusion of additional materials. But such personal viewpoint-based concerns, standing alone, rarely justify removal of material and may raise First Amendment issues.
How have courts ruled in school censorship cases?
The outcome of censorship cases often depends on the factual context, how competing interests are balanced, and in some cases motive. As a result, decisions vary widely, and the same action can be upheld in one district and struck down in the next. This can be confusing, but a few rules of thumb are available:
- Policies and practices designed to respect free expression and encourage discussion are rarely, if ever, disturbed by courts. It is rare that a court will order educators to remove materials that have legitimate educational purposes, even if they cause offense to some. Many schools will offer students alternative assignments in such cases.
- The decision to remove material is more vulnerable, especially if motivated by hostility to particular ideas or speakers.
- The deference frequently shown to school administrators with regard to the curriculum is not always accorded when a dispute arises over material in the school library. Under a 1982 Supreme Court ruling, school administrators may regulate library content based on “educational suitability,” but may not do so to suppress ideas or instill political orthodoxy (Board of Education v. Pico).
Shouldn’t parents be allowed to decide what books their kids can read?
Yes. Parents can absolutely control what their own kids read, but they have no right to stop other people’s children from accessing “controversial” books. If a parent doesn’t like a book, he or she can forbid his or her child from reading it or request an alternative assignment from the teacher.
Parents have the right to decide whether to send their kids to public or private school (or homeschool them). But, as courts have observed, no parent has the right “to tell a public school what his or her child will or will not be taught.”
What does “age appropriate” mean?
One of the most common demands for censorship involves the claim that certain school materials are not “age appropriate.”
Educators generally use the term “age appropriate” to refer to the presence of cognitive skills to comprehend certain material. Education proceeds in stages, with increasingly complex material presented as students gain the intellectual ability and knowledge to understand and process it. For this reason, young children usually do not learn physics or read Shakespeare. Similarly, educators may decide that detailed scientific information about human reproduction might not be age-appropriate for six-year-olds, but would be appropriate for 12-year-olds who have been introduced to basic biology.
However, when censors complain that a book is not “appropriate,” they often mean that, in their opinion, students of a particular age shouldn’t be exposed to the material, not that they are too young to understand it. The objection usually comes up when the material concerns sexuality and usually reflects a fear that exposure to this subject matter undermines moral or religious values. Acceding to pressure to censor in this situation can be tantamount to endorsing one moral or religious view or morality over another.
Movies have ratings that inform parents about potentially objectionable themes. Should schools do the same for books?
Definitely not. As the National Council for Teachers of English observes, rating books “does not provide meaningful information and increases the likelihood that such books will be unavailable to students.” Ratings inherently “give a biased perspective, casting a negative light on listed books regardless of their literary worth, stoking unnecessary alarm over their content.” In other words, ratings create stigmas that encourage parents to challenge books.
But don’t parents have the right to know what their kids are reading?
Of course. Parents are welcome to request information about the curriculum at any time.
What is the danger of banning just one book?
There are practical and educational as well as legal reasons to adhere as closely as possible to the ideals of the First Amendment. School districts such as Panama City, Florida, and Hawkins County, Tennessee, have been stunned to find that acceding to demands for removal of a single book escalated to demands for revising entire classroom reading programs. Other jurisdictions have been pressed to revise the science curriculum, the content of history courses, sex education, drug and alcohol education, and self-esteem programs. Experience has shown far too many times that what appears to be capitulation to a minor adjustment can turn into the opening foray of a major curriculum content battle involving warring factions of parents and politicians, teachers, students and administrators.
Censorship based on individual sensitivities and concerns restricts the knowledge available to students. Based on personal views, some parents wish to eliminate material depicting violence; others object to references to sexuality, or to racially-laden speech or images. Some parents oppose having their children exposed to fiction that doesn’t have a happy ending, teach a moral lesson, or provide noble role models. If these and other individual preferences were legitimate criteria for censoring materials, school curricula would narrow to only the least controversial– and probably least relevant– material. It would hardly address students’ real concerns, satisfy their curiosity, or prepare them for life.
Once a school district accedes to a demand to censor, it can become increasingly difficult to resist such pressures. Once one perspective is accommodated, those with a different view come to expect similar treatment. Listening to community concerns and taking them into account in structuring the educational environment is not the same as removing material because someone does not agree with its contents. School officials always have the legal authority to refuse to censor something. They may need to do more to help members of their community understand why it is the right choice for children’s education.
What’s the difference between censorship and curriculum selection?
Teachers, principals, and school administrators make decisions all the time about which books and materials to retain, add or exclude from the curriculum. They are not committing an act of censorship every time they cross a book off of a reading list, but if they decide to remove a book because of hostility to the ideas it contains, they could be. As the National Council of Teachers of English (NCTE) and International Reading Association (IRA) note, there is an important distinction between selection based on professional guidelines and censorship: “Whereas the goal of censorship is to remove, eliminate or bar particular materials and methods, the goal of professional guidelines is to provide criteria for selection of materials and methods.”
For example, administrators and faculty might agree to take a discussion of evolution out of the second grade curriculum because the students lack sufficient background to understand it, and decide to introduce it in fourth grade instead. As long as they were not motivated by hostility to the idea of teaching about evolution, this would not ordinarily be deemed censorship; the choice to include the material in the fourth grade curriculum demonstrates this was a pedagogical judgment, not an act of censorship.
Not every situation is that simple. For example, objections to material dealing with sexuality or sexual orientation commonly surface in elementary and middle schools when individuals demand the material’s removal with the claim that it is not “age appropriate.” On closer examination, it is clear that their concern is not that students will not understand the material; rather, the objecting adults do not want the students to have access to this type of information at this age. If professional educators can articulate a legitimate pedagogical rationale to maintain such material, it is unlikely that an effort to remove it would be successful.
Of course, hardly anyone admits to “censoring” something. Most people do not consider it censorship when they attempt to rid the school of material they consider profane or immoral, or when they insist that the materials selected show respect for religion, morality, or parental authority. While parents have a considerable right to direct their own child’s education, they have no right to impose their judgments or preferences on other students and their families. School officials who accede to such demands may be engaging in censorship. The decision about what to use in the classroom should be based on professional judgments and standards, not individual preferences.
How should schools decide which materials to select?
Sound curriculum development requires that educators with professional expertise decide which materials are educationally appropriate and consistent with the school district’s educational philosophy and goals, as well as with state law. School officials also have the constitutional duty to ensure that curriculum development and selection decisions are not made with the aim of advancing any particular political or religious viewpoint.
The NEA (National Education Association) Resolutions state that “quality teaching depends on the freedom to select materials and techniques. Teachers and librarians/media specialists must have the right to select instructional material/library materials without censorship or legislative interference.”
Similarly, the National School Boards Association (NSBA) policy on textbook selection emphasizes that its “first commitment” is “preservation of the student’s right to learn in an atmosphere of academic freedom,” and that “[s]election of materials will be made by professional personnel through reading, listening, viewing, careful examination, [and] the use of reputable, unbiased, professionally prepared selection aids.” The NCTE and the International Reading Association advise selecting curricular materials that 1) have a clear connection to established educational objectives; and 2) address the needs of the students for whom they are intended.
Significantly, the Association for Supervision and Curriculum Development (ASCD) cautions that “professional judgment must not be completely subservient to the popular will. Educators’ primary allegiance must be to the integrity of knowledge and the welfare of students … materials must never be removed or restricted for the purpose of suppressing ideas.”
How should a school library decide which materials to include in their collection?
The ALA Library Bill of Rights, first adopted in 1948, recognizes the library’s essential role in providing resources to serve the “interest, information, and enlightenment of all people of the community.” With minor modifications, these principles also apply in the school setting.
The considerations specifically relevant to school libraries are identified by NSBA guidelines:
- To provide materials that will enrich and support the school’s curricula;
- To provide materials that will stimulate knowledge, growth, literary appreciation, aesthetic values, ethical standards, and leisure-time reading;
- To provide information to help students make intelligent judgments;
- To provide information on opposing sides of controversial issues so that students may develop the practice of critical reading and thinking; and
- To provide materials representative of the many religious, ethnic, and cultural groups that have contributed to the American heritage.
As is true with curricular materials, the ALA cautions that library materials “should not be proscribed or removed because of partisan or doctrinal disapproval.”
How does censorship hinder a teacher’s ability to do their job?
By limiting resources and flexibility, censorship hampers teachers’ ability to explore all possible avenues to motivate and “reach” students. By curtailing ideas that can be discussed in class, censorship takes creativity and vitality out of the art of teaching; instruction is reduced to bland, formulaic, pre-approved exercises carried out in an environment that discourages the give-and-take that can spark students’ enthusiasm. Teachers need latitude to respond to unanticipated questions and discussion, and the freedom to draw on their professional judgment, without fear of consequences if someone objects, disagrees, or takes offense. When even one book in a school is censored, that creates a chilling effect on the school’s teachers, who might decide to drop potentially controversial books in fear that those books will be challenged.
How does censorship limit students?
Censorship is particularly harmful in schools because it prevents students with inquiring minds from exploring the world, stretching their intellectual capacities, and becoming critical thinkers. When the classroom environment is chilled, honest exchange of views is replaced by guarded discourse and teachers lose the ability to guide their students effectively.