24 January 2022 — 1733 mst

You Don’t Have to Read ‘Em —
But You Can’t Ban ‘Em

Guest Essay By James C. Nelson
Montana Supreme Court Justice (Ret.)

It looks like the self-appointed morality police are at it again. Two articles (one, two) in the Daily Montanan discuss the book banning wars in Kalispell and in Billings. The books at issue are about LGBTQ+ children, and, by some, are considered to be, in part, child pornography. If, in fact, that were true federal authorities would have been all over them long before they got to a library near you—dissemination of child pornography being a crime, after all.

Of course, book burning and banning is nothing new. In what was to become the USA, the morality police were burning objectional reading material in the 1600s. And as history progressed, any number of books were banned by one moral authority or another, including, without limitation, Walt Whitman’s book of poetry, Leaves of Grass, and Mark Twain’s Huckleberry Finn. And, of course, we are reminded of the stark reality of book burning in the wartime videos of the Nazi’s throwing books into a huge bonfire in May 1933.

Indeed, before I came of age, Catcher in the Rye, was among the books that was banned (I read it anyway). And, the Catholic Church (of which I was then a member) had a list of banned books (its Index Librorum Prohibitorum) which included Les Misérables, The Count of Monte Cristo and the Hunchback of Notre Dame (all banned, ironically, while the Church’s pedophile priests were out sexually abusing children and the hierarchy was covering it up). Anyway, I read those too.

But here is another take on book banning. Arguably it’s unconstitutional.

We all know that the First Amendment protects freedom of speech and freedom to publish. Similarly, Article II, section 7 of Montana’s Constitution protects freedom of speech and expression and the freedom to publish “on any subject.”

Moreover, the US Supreme Court’s Citizen United decision elevated freedom of speech to a nearly unassailable level. And, Citizens United did something else. The High Court also created a right to hear—or read. In other words, I have a constitutional right to hear or read what you have a constitutional right to speak or publish.

So, I suggest that book banning by government actors (school boards and publicly funded libraries, for example) would violate both the Federal and Montana Constitutional rights of free speech and expression. And, that practice also would violate the right to hear/read of every person who wants to read the banned book. You have a right to publish; I have a right to read your work.

Now the morality police are going to argue, “But, we have an obligation to protect our children from reading this awful stuff.” Well, as a parent you can do just that—prohibit your child from reading anything you believe he or she shouldn’t read.

But you can’t black-list, ban or remove a book from circulation just because some kid might read it. The Montana Constitution, at least, prohibits that. Remember Citizens United has created a right to hear/read, and the Supreme Court didn’t limit that right to adults. So that right to hear/read is basically engrafted onto Montana Constitution’s right of free speech, because Montana cannot provide less protection of a constitutional right than does the Federal Constitution. That is a principle of constitutional law.

Importantly, and more to the point, Montana’s Constitution, at Article II, section 15 guarantees to persons under 18 years of age all of the fundamental rights in Article II to which adults are entitled—one of those fundamental rights being freedom of expression and, per Citizens United, the right to hear/read.

Government actors—school boards and libraries—should not be banning books to keep them away from children. Children have a constitutional right to read those books. If a parent wants to prohibit their child from reading a book, that is the parent’s prerogative, not the government’s representatives.

And if other parents don’t object to their children reading a certain book, then those children have a constitutional right to do so free from government interference.

The morality police are not entitled to throw the baby out with the bath water. Bottom line: you don’t have to read ‘em, but you can’t ban ‘em or burn ‘em.