Offensive or Disagreeable
The First Amendment protects the right to express and receive controversial ideas, yet books continue to be removed from schools and libraries at an alarming rate. What does the First Amendment actually say about “offensive” books?
In 1984, Gregory Lee Johnson burned an American flag in front of the Dallas City Hall in an act of protest against Reagan administration policies. Johnson was tried and convicted of flag desecration and sentenced to a year in jail.
The case ended up going to the Supreme Court where the Court held that Johnson’s burning of the American flag was a protected form of expression under the First Amendment. The Court noted in their judgement, “If there is a bedrock
principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Legally, these terms are hard to define as they are constructs that change to reflect the social views of the time. For example, during the “Red Scare” of the 1950s and 60s, an Indiana Textbook Commission member attempted to remove “Robin Hood” from school textbooks, arguing that Robin Hood’s stealing from the rich and giving to the poor promoted Communist ideologies. Similarly, in 1989, residents of a California logging town called for the removal of Dr. Seuss’s “The Lorax” from schools claiming that the book taught anti-logging propaganda. In the past there have also been pushes to ban “Where the Wild Things Are” for being too dark or the “Harry Potter” series for promoting witchcraft.
Today, LGBTQ+ books are at the center of the book banning debate. Of the 2,532 books banned during the 2021-2022 school year, the genre with the highest percentage of banned books at 37% was children’s books with diverse characters, such as LGBTQ+ characters and characters of color. When LGBTQ+ books are challenged or removed from schools or libraries, the argument is generally that the content of the book is obscene and inappropriate for children.
According to Cornell Law School, obscenity is one of the few categories of speech that are unprotected by the First Amendment. Obscenity laws focus on prohibiting lewd, or extremely offensive words and pictures in public. The creation of a testable, legal definition for obscenity would take years of courtroom debates.
The Legal Precedent of Obscenity
One of the earliest examples of legal precedent involving what was once considered “obscene” work was United States v. One Book Called Ulysses. Ulysses by James Joyce was initially published serially in the American literary magazine The Little Review from 1918 until 1920. At this time, the Comstock Law was still in effect and made it illegal to mail any “obscene, lewd or lascivious book pamphlet, picture, paper [or] print.”
Ulysses described a day in the life of Leopold Bloom and includes sexual descriptions such as Bloom’s masturbation. In 1921, the New York court ruled that Ulysses was obscene and fined the editors of the magazine fifty dollars each. This ruling prevented Joyce from being able to find an American publisher for his book and essentially banned his book from being mailed or imported within the United States, although in 1922 Ulysses was published as a book in Paris.
In 1933, Random House Publishers sought to challenge the ban and imported the Paris edition with plans for it to be confiscated by customs officials. In United States v. One Book Called Ulysses, the federal ban was overturned, and it was ruled that the depiction of sex should be allowed in serious literature, even if some found it unpleasant.
A similar and more influential ruling was obtained in 1957 with the landmark case Roth v. United States. Samuel Roth, a publisher in New York, distributed a magazine that contained explicit photographs and erotic stories. He was convicted for distributing obscenity. In the past, obscenity had been banned under the common law theory that it would corrupt the impressionable, especially children.
Believing the common law rule insufficient, Supreme Court Justice Willian Joseph Brennan built a narrower definition of obscenity stating that “community standards should be applied to determine whether the average person (rather than children) would find that the work's dominant theme (rather than individual passages) appealed to the prurient interest.” Essentially, to legally determine a book or text obscene, it would have to be completely without redeeming social value.
Today, federal and state courts evaluate obscenity using a three-pronged test established by the 1973 case of Miller v. California. Using the Miller Test, the criteria to be determined obscene are as follows:
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Whether the average person sees the material as having/encouraging excessive sexual interest based on community standards.
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Whether the material depicts or describes sexual conduct in a clearly offensive way as defined by the applicable state law.
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Whether the work, when considered in its entirety, “lacks serious literary, artistic, political, or scientific value.”
If a piece of media meets all three criteria, it can legally be considered obscene. However, the third prong makes it incredibly difficult for purely textual materials like books to be ruled obscene.
Despite the precedent in place, obscenity is often misused to block access to books. The American Library Association’s list of the Most Challenged Books of 2024 shows that challenges for books to be removed frequently involve claims of sexually explicit content. It is no surprise that many of the books challenged also include LGBTQ+ content. Although many of the books on the “most challenged” list are the recipients of literary awards and esteemed recognition, they are often barred from access.
According to the Miller Test, a piece of media must be considered in its entirety and lacking literary value to be considered obscene and hence unprotected under the First Amendment. Nonetheless, books are being removed from schools and libraries because certain clusters of people deem them offensive and inappropriate material.
The Enforcement of Ideology in Public Schools
In 1942, a reaction to the American flag once again instigated a court case which would set crucial precedent regarding the First Amendment. At the time, the West Virginia Board of Education required students and teachers to perform salutes to the American flag during the pledge of allegiance as a mandatory part of school. Students who refused were subject to expulsion and sent home from school. Children from a family of Jehovah’s Witnesses refused to perform the salute, as they said it went against their core belief that the laws of God were above that of any secular government. In response, the students were sent home each day and threatened with reform schools for criminally active children while their parents faced prosecutions for causing juvenile delinquency.
The ensuing court case, West Virginia State Board of Education v. Barnette, would go on to rule that the First Amendment cannot allow efforts to enforce a single opinion on any topic and that national symbols such as the flag should not receive a level of deference that supersedes constitutional protections. To restate, public schools are not allowed to enforce a single narrative or an unanimity of opinion on any topic.
This precedent set in Barnette was later used in the 1982 landmark book banning case of Island Trees Union Free School District v. Pico. The Island Trees Union Free School District’s Board of Education had ordered 11 books to be removed from its junior high and high school libraries. The books removed included Slaughterhouse-Five by Kurt Vonnegut, The Fixer by Bernard Malamud, Go Ask Alice by an anonymous author, Black Boy by Richard Wright, and A Hero Ain’t Nothin’ but a Sandwich by Alice Childress. The Board of Education’s reasoning was that the books were “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” Steven Pico and other students challenged this removal and brought the case to federal court.
All of the books removed from The Island Trees School District junior high and high school libraries in 1982.
The case ended up going all the way to the Supreme Court where it ruled that school libraries held a special role as disseminators of information and ideas, and as such were specially protected within the rights of free speech and press. Therefore, the school board could not restrict the availability of books in its libraries because some members disliked the content being written.
Public schools frequently find themselves as ground zero for First Amendment controversies. So much so, that in 1999 a nonprofit civil liberties group founded FIRE, the Foundation for Individual Rights in Education. At the time, FIRE was built with the sole mission of protecting free speech on college campuses in the United States, however in 2022 the nonprofit decided to expand its reach, feeling that free speech was growing more under threat. Changing the name to the Foundation for Individual Rights and Expression, FIRE now leads with the mission to defend and sustain the individual rights of all Americans to free speech.
FIRE’s public advocacy program works to publicize First Amendment rights violations in the media and to raise awareness of various threats to First Amendment rights. Their work often involves writing advocacy letters to government actors who are threatening or violating people’s rights as well as educating the public about the extent of their rights and the importance of free expression as a fundamental American value.
Book Banning and Parental Rights
While it is easier to find legal precedent against the total removal of books from public schools or libraries, the case becomes murkier when considered from parental rights framework. If a parent decides that they do not want their child to read a book in a class curriculum, do they have the right to disallow their child from reading the book?
In September 2025, Illinois Congresswoman Mary Miller introduced the Parental Rights Amendment, an amendment supported by many conservative organizations like Moms for Liberty and Advance USA. The amendment establishes that it is the “God-given” right of parents to direct their child’s education. This includes their right to choose as an alternative to public education, private, religious, or homeschooling. It also includes the right to make “reasonable” choices within public schools for one’s child. Parents would be able to decide whether a child should be allowed to read certain books in a class curriculum.
Watershed cases like Tinker v. Des Moines, Hazelwood v. Kuhlmeier and Morse v. Frederick have emphasized that students do not shed their constitutional rights when they enter school grounds, especially their First Amendment rights.
“Free speech and access to information aren’t subject to a popular vote,” says Aaron Terr, the director of FIRE’s public advocacy program, when asked if parents have the right to control the content that their child encounters. “But as far as parents being concerned about what their children access, there are ways to address that concern without engaging in censorship.”
Terr states that it would not be a First Amendment violation for a parent to request that their own child not be able to check out particular book titles. However, an issue arises when parents or members of the community try to decide what everyone else’s children can read and access in a school or public library.
“The purpose of a library is to provide access to a wide variety of ideas from many different perspectives, and that purpose is frustrated when political power is used to purge ideas or views from library shelves,” Terr says. He also recognizes that library censorship has become one of the major issues of the current political landscape.
The Free Speech of Libraries
While discussing library censorship, Terr references a recent decision by the US Court of Appeals for the Fifth Circuit Little v. Llano, in which a new argument against the First Amendment is being implicated in the removal of books from libraries. In 2022, patrons of a county library in Texas had sued the librarian and other officials, claiming that they had removed 17 books because of racial and sexual themes. The district court ruled that this violated the patrons’ right to receive information under the First Amendment and ordered the books returned to the library.
However, in May 2025, the US Court of Appeals reversed the ruling stating that a library’s collection decisions are government speech and therefore not subject to Free Speech challenge.
To break it down, if a mayor issues a press release, he can say whatever he wants. He can promote some viewpoints and not others without violating the First Amendment. Terr explains that some states like Texas and Florida are trying to put public libraries in the same category.
“They argue that public libraries are run by the government, so the decision about what books to include or exclude sends the government’s own message,” Terr says, although this argument has mostly been a loser in court.
This argument is frequently rejected because libraries are intended to be nonpartial storehouses of knowledge that provide access to a wide range of ideas and perspectives, not just those promoted by government officials.
“It defeats the purpose of libraries to give government officials unchecked discretion to conduct ideological purges or library shelves,” Terr says, “and that undermines the public, personal right to access information.”
The First Amendment protects not only the right to speak, but the right to receive information from public schools and libraries, even if certain groups of people find the information “offensive or disagreeable.” Legal precedent appears to protect varying ideologies but pushes to remove books featuring LGBTQ+ themes continue to grow.
If bans like this continue to be allowed and enforced, does this weaken the strength of the First Amendment? What will the precedent look like in ten years?