Book Banning Goes Digital:
Libraries Suspending Their E-Book Services
and the Complications It Poses for
First Amendment Doctrine
Catherine E. Ferri
*
27 STAN. TECH. L. REV. 127 (2024)
ABSTRACT
Book banning predates the United States and has survived and thrived in a
splintered twenty-first century political climate. As the fight for the minds of the
public continues, state and local governments have ramped up their efforts to
ban books in public and school libraries. Public libraries, as limited public forums,
must ensure their restrictions on access to information are reasonable and
viewpoint neutral. School libraries receive some reprieve under a slightly more
deferential Pico test. However, e-book services present a unique set of
challenges. Also known as digital libraries, e-book services provide digital access
to thousands of books, magazines, and other titles. Frequently, libraries will
contract with e-book services, allowing library patrons access to titles beyond
what libraries have in physical copy.
However, a number of conservative states are attempting to restrict e-book
services via legislation or blanket suspensions. This Note aims to make sense of
e-book services and book banning against the backdrop of the First Amendment.
Part I argues e-book services should be considered extensions of public libraries
and public school libraries. It draws analogies from other, more established
areas of law to propose e-book services are a part of the library under a nexus
theory or another theory of government reliance. Part II argues banning or
suspending a full e-book service is comparable to banning or suspending access
to a whole section of the library to target one book—a violation of the First
*
2024 J.D. Candidate at the University of Colorado Law School. First, my utmost gratitude to
my incredible Professors Helen Norton and Blake Reid, as well as Mary Slosson and Alec
Peters, for their invaluable feedback, help, and faith in me in developing this Note. I could
not have written this without you. Thank you as well to Victoria Fang, Greg Schwartz, Mark
Cantú, and the editors of the Stanford Technology Law Review for their thoughtful feedback
and editing. It has been an honor to work with such a talented editorial staff. Finally, thank
you to my family—my parents, sisters, and grandparents—for their unending support
throughout my law school journey. I hope that I have done you all proud.
Fall 2023 BOOK BANNING GOES DIGITAL 128
Amendment because it is politically motivated viewpoint discrimination. E-book
services severely complicate First Amendment doctrine regarding book banning.
This Note attempts to clarify the intersection between this new technology and
longstanding Supreme Court precedent dictating state officials’ right to ban
books and patrons’ right to read them.
TABLE OF CONTENTS
INTRODUCTION ............................................................................................... 129
I. WHAT IS THE RELATIONSHIP BETWEEN PUBLIC LIBRARIES AND E-BOOK SERVICES? .. 136
A. Examining the Involved Pares and How They Interact ................... 137
1. Understanding the Pares Involved and Their Rights and
Obligaons .............................................................................. 137
2. The Conicts Begin: Lile v. Llano County ................................ 142
B. E-Book Services as an Extension of the Physical Library................... 145
1. Are E-Book Services State Actors Under Halleck? ...................... 146
2. The Nexus Theory: How Courts Have Handled the ADA and
How It Is Analogous ................................................................. 149
3. Implicaons of Applying the Nexus Theory ............................... 154
4. Response to the Complicaons: Only the Government Can
Oend the Right to Informaon, Not Private Actors ................. 155
II. BALANCING E-BOOK BANNING AND THE FIRST AMENDMENT .............................. 156
A. Understanding the Titles and Viewpoints at Issue ........................... 158
1. An Aside on Romer v. Evans: What About Animus? .................. 159
2. A Closer Examinaon of Contested Works ................................ 161
3. The Interplay of Obscenity, Viewpoint-Discriminaon, and
the Targeted Works ................................................................. 164
B. E-Book Bans in Public Libraries Are Neither Reasonable Nor
Viewpoint Neutral .......................................................................... 166
1. Reasonableness and the Viewpoint-Neutrality Inquiry ............. 166
2. Balancing the Protecon of Minors and the Right to
Informaon ............................................................................. 172
C. Public Schools Have Educaonal Discreon, Which Expands
Authority and Further Complicates Evaluang Public Schools’ E-
Book Bans ...................................................................................... 173
1. Applying Pico: What Are the Results?....................................... 174
2. Soluons: Reconsider the Pico Test and Rework Parental
Controls ................................................................................... 176
CONCLUSION .................................................................................................. 179
129 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
INTRODUCTION
“Books won’t stay banned. They won’t burn. Ideas won’t go to jail.”
1
Banning books
2
is a tradition older than the United States itself. Indeed, the
first book ban in what was to become the United States took place in 1637.
3
It
is a practice that is contentious and has endured throughout American history.
4
At the center of the controversy surrounding book banning is the First
Amendment right to information. The free speech clause of the First
Amendment provides that “Congress shall make no law . . . abridging the
freedom of speech, or of the press.”
5
While it does not expressly mention a right
to information, the United States Supreme Court has found that the First
Amendment’s speech protection extends to the dissemination and receipt of
information—it is “inherent[ly] [a] corollary of the rights of free speech and
press that are explicitly guaranteed by the Constitution.”
6
The right to
information receives its power from “the sender’s First Amendment right” to
disseminate ideas or to speak.
7
Additionally, “the right to receive ideas is a
necessary predicate to the recipient's meaningful exercise of [their] own rights
1
ALFRED WHITNEY GRISWOLD, ESSAYS ON EDUCATION 96 (1954).
2
Book banning, banned books, and book removal are all terms that this Note uses
interchangeably for the removal or restriction of a book from the shelves of a school or
library. See Banned Books Week (October 1 - 7, 2023), AM. LIBR. ASS’N,
https://perma.cc/FAM9-ZTLR.
3
Book Banning in the United States and Beyond, HARV. GRADUATE SCH. OF EDUC. GUTMAN LIBR.,
https://perma.cc/68XW-WLVL (Sept. 18, 2023, 4:29 PM); see also Marisa Shearer, Essay,
Banning Books or Banning BIPOC?, 117 NW. U. L. REV. ONLINE 24, 26 (2022); Matthew Taub,
America's First Banned Book Really Ticked off the Plymouth Puritans, ATLAS OBSCURA (Nov. 1,
2019), https://perma.cc/3T7V-QX3R (describing why the Puritans banned Morton's book in
Plymouth Colony).
4
See, e.g., Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 855–
56 (1982) (deciding “whether the First Amendment imposes limitations upon the exercise by
a local school board of its discretion to remove library books from high school and junior high
school libraries” (footnote omitted)); see also Chiras v. Miller, 432 F.3d 606, 607 (5th Cir.
2005) (deciding appeal of dismissal of suit “alleging that the Texas State Board of Education
violated the Free Speech Clause of the First Amendment when it refused to approve Chiras’
environmental science textbook for state funding”).
5
U.S. CONST. amend. I.
6
Pico, 457 U.S. at 867; see also id. at 866 (“Our precedents have focused ‘not only on the
role of the First Amendment in fostering individual self-expression but also on its role in
affording the public access to discussion, debate, and the dissemination of information and
ideas.’” (quoting First Nat’l Bank of Bos. v. Belloti, 435 U.S. 765, 783 (1978))); Stanley v.
Georgia, 394 U.S. 557, 564 (1969).
7
Pico, 457 U.S. at 867.
Fall 2023 BOOK BANNING GOES DIGITAL 130
of speech, press, and political freedom.”
8
Such objectives are central to the
purpose of the First Amendment.
The right to information is fundamental to the existence of libraries, whose
core purpose is the dissemination of and interaction with ideas, experiences,
and stories. As such, the primary inquiry when evaluating a book ban is
“whether the government's ‘substantial motivation’ was to deny library users
access to ideas with which [the government] disagreed.”
9
This is because the
right to information “embraces the right to distribute literature, and necessarily
protects the right to receive it.”
10
Thus, the government cannot “contract the
spectrum of available knowledge” simply because it disagrees with or finds
offensive the ideas portrayed in challenged literature.
11
This right extends
beyond public library patrons to students, who do not “shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate.”
12
Indeed,
“access [to ideas] prepares students for active and effective participation in the
pluralistic, often contentious society in which they will soon be adult
members.”
13
Without the right to information, there would exist “a barren
marketplace of ideas that had only sellers and no buyers.”
14
The focus of this Note, however, is not merely the act of banning books in
a traditional brick-and-mortar library. Rather, it contemplates a new kind of
book ban: public and school libraries’ suspension of e-book services. Prior to
the explosion of the Internet, the framework of a book ban was fairly simple to
understand: an official or patron would have a criticism of a book that library
officials believed made the book warranting of removal. The library would then
remove the physical book from its shelves. The process was generally isolated
to that book. Complicating this process immensely is the e-book service. Also
sometimes known as a ‘digital library,’ e-book services offer access to
8
Id.
9
Little v. Llano County, No. 1:22-CV-424-RP, 2023 WL 2731089, at *7 (W.D. Tex. Mar. 30,
2023) (alteration in original) (emphasis added) (quoting Campbell v. St. Tammany Parish Sch.
Bd., 64 F.3d 184, 190 (5th Cir. 1995)), appeal filed, No. 23-50224 (5th Cir. Apr. 4, 2023),
argued, No. 23-50224 (5th Cir. June 7, 2023).
10
Martin v. City of Struthers, 319 U.S. 141, 143 (1943) (emphasis added) (citation omitted)
(citing Lovell v. City of Griffin, 303 U.S. 444, 452 (1938)).
11
Griswold v. Connecticut, 381 U.S. 479, 482 (1965).
12
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
13
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 868 (1982).
14
Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) (Brennan, J., concurring).
131 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
thousands of books stored on an online database.
15
Libraries can purchase titles
to offer to their patrons, usually by purchasing collections of books, rather than
individual titles.
16
Using a process sometimes known as “controlled digital lending,”
17
e-book
services offer libraries the opportunity to license and circulate collections of
books without having to own the paper copies.
18
Lending models vary. Some
titles are available under the “[o]ne copy/one user” model, which allows a
library to own the title permanently and loan it out to one user at a time, like a
physical book.
19
Other titles operate more as a lease. Libraries can purchase the
title for a number of checkouts or months, before their lease on the title
expires.
20
Some libraries use a “simultaneous usage” model, which allows the
library to purchase one title for multiple users for a set period of time and allows
users to access the title concurrently without waiting lists.
21
Regardless of the lending model, e-books have made access to literature
far easier for library patrons.
22
However, libraries do not own the e-book in the
way that they own the physical copy of a book. Rather, they have purchased
some form of license, meaning the e-book service with which the library
contracts can control to a degree what happens to the book or place conditions
15
See, e.g., OVERDRIVE, https://perma.cc/MX7V-K23P (“OverDrive is the leading digital
reading platform for libraries and schools worldwide. We are dedicated to creating ‘a world
enlightened by reading’ by delivering the industry’s largest catalog of ebooks, audiobooks
and other digital media to a growing network of 88,000 libraries and schools in 109
countries.”).
16
See Explore Our Collection, OVERDRIVE, https://perma.cc/259L-RXVB.
17
Controlled Digital Lending by Libraries, CONTROLLED DIGIT. LENDING, https://perma.cc/QK63-
4GKA.
18
Read with Libby, OVERDRIVE, https://perma.cc/732R-6X3Y (“From the classics to The New
York Times bestsellers, your library chooses which ebooks and audiobooks they’d like to
provide in Libby. They select titles based on your community’s interests. Libby is only for
digital content. It doesn’t include any physical materials from your library.”).
19
Ilona Andrews, OverDrive and Libraries: Everything You Wanted to Know, ILONA ANDREWS
BLOG (Aug. 7, 2023), https://perma.cc/22JG-G5GW.
20
Id.
21
Id.; see also DANIEL LISTON, CONN. GEN. ASSEMBLY OFF. OF LEGIS. RSCH., LIBRARIES’ ACCESS TO E-BOOKS,
2013-R-0153, at 4–5 (2013), https://perma.cc/U5Y2-9QGP (describing a “subscription”
model allowing concurrent access for a fixed period of time).
22
See, e.g., Daniel A. Gross, The Surprisingly Big Business of Library E-Books, NEW YORKER
(Sept. 2, 2021), https://perma.cc/Y8R6-7MDK (“In the first days of the [COVID-19 pandemic]
lockdown, the [New York Public Library] experienced a spike in downloads, which lengthened
the wait times for popular books. In response, it limited readers to three checkouts and three
waitlist requests at a time, and it shifted almost all of its multimillion-dollar acquisitions
budget to digital content. By the end of March, seventy-four per cent of U.S. libraries were
reporting that they had expanded their digital offerings in response to coronavirus-related
library closures.”).
Fall 2023 BOOK BANNING GOES DIGITAL 132
on the license.
23
Popular services like OverDrive frequently require libraries to
purchase collections, rather than individual titles,
24
meaning libraries do not
have full control over the titles available to their patrons.
25
Thus when
confronted with an objectionable title, rather than relying on parental controls,
a library without full control of the titles in their collection may suspend access
to the e-book service altogether because they cannot simply remove the book
from its digital shelf.
26
E-book services have complicated the mechanics of loaning and banning
books, but evaluating the constitutionality of these bans is even more
convoluted. Perhaps the most famous book banning case is Board of Education,
Island Trees Union Free School District No. 26 v. Pico, in which the Supreme
Court attempted to make sense of the First Amendment’s limitations on state
actors removing books from public school libraries.
27
A plurality held that library
officials could not remove books from the library’s shelves “simply because
[local school boards] dislike the ideas contained in those books and seek by
their removal to ‘prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion.’”
28
Essentially, the Pico test focuses on the
school’s motivation for banning the book: whether the school is focused on the
content of the book or the viewpoint expressed within it.
29
The plurality found
that when a school library removes a book on the basis of content, like if the
school deems a book educationally unsuitable or “pervasively vulgar,” that ban
is “perfectly permissible.”
30
If the school bans a book on the basis of the ideas
expressed in its pages, also known as a viewpoint-based restriction, that ban is
unconstitutional.
31
However, while lower courts have routinely treated Pico as
23
LISTON, supra note 21, at 2.
24
See OVERDRIVE, supra note 16.
25
See Complaint ¶¶ 2, 42, 79–84, Little v. Llano County, No. 1:22-CV-424-RP, 2023 WL
2731089 (W.D. Tex. Mar. 30, 2023), appeal filed, No. 23-50224 (5th Cir. Apr. 4, 2023),
argued, No. 23-50224 (5th Cir. June 7, 2023).
26
See, e.g., id. ¶¶ 79–86.
27
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 853 (1982).
28
Id. at 872 (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).
29
Id. at 871.
30
Id.
31
Id. (“Our Constitution does not permit the official suppression of ideas. . . . If petitioners
intended by their removal decision to deny respondents access to ideas with which
petitioners disagreed, and if this intent was the decisive factor in petitioners’ decision, then
petitioners have exercised their discretion in violation of the Constitution.” (footnote
omitted)).
133 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
guidance when addressing book removal,
32
the fractured Pico court could not
come to a consensus on an appropriate test for how to ban books in schools
without offending the First Amendment beyond unfortunately vague terms like
“educational suitability,” “pervasively vulgar,” and “political orthodoxy.”
33
Thus, it is important to understand the kinds of government restrictions of
speech that potentially offend the First Amendment.
34
The Pico court addresses
two of the most egregious: the content-based restriction and the viewpoint-
based restriction.
35
A content-based restriction “applies to particular speech
because of the topic discussed or the idea or message expressed.”
36
Content-
based restrictions focus specifically on the content of the questioned speech.
37
More sinister is the viewpoint-based restriction. Considered to be “the most
contemptuous, democracy-threatening restriction[] on speech,”
38
a viewpoint-
based restriction restricts on the basis of ideology.
39
Also sometimes at issue,
though not relevant to this Note, is the content-neutral restriction, which limits
speech without regard for the content of the message.
40
32
See, e.g., Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992)
(“Pico signifies that, consistent with other First Amendment principles, the right to receive
information is not unfettered and may give way to significant countervailing interests.”); see
also Gonzalez v. Douglas, 269 F. Supp. 3d 948, 972 (D. Ariz. 2017) (“The right is infringed if
the state ‘remove[s] materials otherwise available in a local classroom unless [that] action[ ]
[is] reasonably related to legitimate pedagogical concerns.’” (alteration in original) (quoting
Arce v. Douglas, 793 F.3d 968, 983 (9th Cir. 2015))); Sund v. City of Wichita Falls,
121 F. Supp. 2d 530, 547 (N.D. Tex. 2000); L.H. v. Indep. Sch. Dist., No. 4:22-cv-00801-RK,
2023 WL 2192234, at *4–*6 (W.D. Mo. Feb. 23, 2023).
33
Pico, 457 U.S. at 871, 875.
34
To understand the differences, consider the following hypothetical: A town decides to ban
billboards. If that ban prohibits all billboards, regardless of what is on them, that ban is
content-neutral. If that ban prohibits all political billboards, that ban is content-based. If the
ban, on the other hand, specifically prohibits Socialist billboards, that ban is viewpoint-based
because while it is targeting the content of the billboard, it is more specifically distinguishing
on the basis of political viewpoint.
35
See Pico, 457 U.S. at 871 (holding that bans motivated by the “suppression of ideas”
violates the First Amendment but that bans motivated by the “educational suitability” of a
book or a book being “pervasively vulgar” would be “perfectly permissible.”).
36
Reed v. Town of Gilbert, 576 U.S. 155, 163, 171 (2015).
37
Id.
38
Maura Douglas, Comment, Finding Viewpoint Neutrality in Our Constitutional
Constellation, 20 U. PA. J. CONST. L. 727, 727 (2018).
39
See Matal v. Tam, 582 U.S. 218, 248 (2017) (Kennedy, J., concurring) (noting viewpoint
discrimination occurs when “the government has singled out a subset of messages for
disfavor based on the views expressed” (citing Cornelius v. NAACP Legal Def. & Educ. Fund,
Inc., 473 U.S. 788, 806 (1985))).
40
Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV.
189, 189 (1983).
Fall 2023 BOOK BANNING GOES DIGITAL 134
Generally, where a library bans a book for content-based reasons,
“specifically, for its educational suitability,” the removal does not offend
students’ First Amendment rights.
41
However, if a library removes a book based
on viewpoint, that removal is unconstitutional.
42
For example, banning books
on critical race theory with the intent to prevent access to that political stance
would be unconstitutional. More generally, book banning is frequently
instigated “by public complaints about those materials and implemented by
government officials mindful of the importance some of their constituents may
place on religious values, moral sensibilities, and the desire to protect children
from materials they deem to be offensive or inappropriate.”
43
Also complicating book bans, specifically for school libraries, is the concept
of educational discretion.
44
School boards have broad discretion to control
conduct in schools, provided that officials behave in a manner consistent with
students’ constitutional rights.
45
Because Pico allows for book bans where the
books in question are considered educationally unsuitable for students,
46
a
school board’s right to educational discretion and to exercise that discretion to
remove books from library shelves is frequently in conflict with students’ First
Amendment right to the information within those books. A school’s right to
educational discretion cannot interfere with the “transcendent imperatives of
the First Amendment.”
47
When considering the validity of a book ban within the
walls of a public school library, it is vital to understand that there are competing
rights: a school’s right to educational discretion and a student’s First
41
Ryan L. Schroeder, Note, How to Ban a Book and Get Away with It: Educational Suitability
and School Board Motivations in Public School Library Book Removals, 107 IOWA L. REV. 363,
365 (2021) (internal quotations omitted).
42
Id.
43
First Amendment and Censorship, AM. LIBR. ASS’N, https://perma.cc/P7YJ-3WL6 (Oct. 2021).
44
See Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 863–64
(1982).
45
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507 (1969).
46
Pico, 457 U.S. at 871.
47
Id. at 864; see also Meyer v. Nebraska, 262 U.S. 390, 401 (1923) (“That the State may do
much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally
and morally, is clear; but the individual has certain fundamental rights which must be
respected.”); W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (“Boards of
Education . . . . have, of course, important, delicate, and highly discretionary functions, but
none that they may not perform within the limits of the Bill of Rights.”).
135 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
Amendment right to information. However, libraries cannot infringe on the First
Amendment on their way to exercise educational discretion.
48
This Note argues that libraries that suspend access to e-book services
violate their patrons’ First Amendment right to information. Part I argues that
e-book services should be considered extensions of libraries under what is
known as the “nexus theory.” This theory, taken from disability law
jurisprudence, posits that websites offering the same or comparable service to
a brick-and-mortar location should be subject to the same federal accessibility
law requirements to which the physical location is subject.
49
This Note argues
that e-book services offer the same core service as a brick-and-mortar library,
meaning library patrons should have the same First Amendment right to the
information available in the e-book service as they would a physical library. It
also examines the added complication of drawing e-book services, which are
private parties,
50
under the First Amendment. Part I concludes by arguing that
banning or suspending an entire e-book service in order to exclude specific
books is comparable to suspending access to a whole section of the library to
target one book. Part II considers the implications of imposing additional First
Amendment obligations on public libraries and public school libraries. First it
argues that, while public libraries do have some editorial discretion, suspending
access to whole parts of the library to target a handful of books that could be
unprotected is neither reasonable nor viewpoint neutral. It then acknowledges
that while school libraries have educational discretion and an interest in
preventing children from having access to ‘inappropriate’ content, politically-
motivated e-book bans still violate students’ First Amendment right to
information. Doing so suspends access to more content than could possibly be
unprotected and prevents patrons from accessing content to which they may
have a right. Ultimately, this Note outlines a way to protect library patrons’ First
Amendment right to information, including information on e-book services.
48
Barnette, 318 U.S. at 637 (noting Boards of Education have no duties “that they may not
perform within the limits of the Bill of Rights”).
49
See discussion about the nexus theory infra Section I.B.2.
50
See discussion about e-book services as private actors infra Sections I.B.1, I.B.3.
Fall 2023 BOOK BANNING GOES DIGITAL 136
I. WHAT IS THE RELATIONSHIP BETWEEN PUBLIC LIBRARIES AND E-BOOK SERVICES?
“Not in their wildest dreams could anyone in the Founding generation
have imagined Facebook, Twitter, YouTube, or TikTok.”
51
It almost goes without saying that the Founders of the United States could
not have anticipated a twenty-first century society when they penned the First
Amendment in the late eighteenth century. When they wrote “Congress shall
make no law . . . abridging the freedom of speech,”
52
the Founders could not
have imagined the existence of the internet, let alone online databases with
tens of thousands of books. Neither the Constitution nor courts have addressed
the issue of suspending access to e-book databases.
53
Thus, it is important to
understand the nature of the relationship between these databases and the
public and school libraries with which they contract.
This Part first attempts to clarify the parties involved in these conflicts—
who they are and what rights or obligations they might have to each other. It
then proposes that the nature of the relationship between communities and
these e-book services inextricably links them to brick-and-mortar libraries. As
such, e-book services are a digital wing of the library. Just as some circuits draw
websites under the Americans with Disabilities Act (“ADA”) via a nexus theory
requiring some connection between a service and a physical place,
54
e-book
services should be considered an extension of or nexus to the library. Though
not a perfect parallel, requiring courts to treat e-book services as extensions of
a library could prevent heavy-handed e-book banning. However, requiring e-
book services to comply with the First Amendment poses additional problems
because e-book services are private entities, not state actors.
55
A potential
solution is a one-way rule: e-book services do not have to suspend a challenged
book when asked, but libraries cannot suspend the service because it is
comparable to walling off a wing of the library. When considering the rights of
library patrons, only states have First Amendment obligations.
51
NetChoice, LLC v. Att'y Gen. of Fla., 34 F.4th 1196, 1203 (11th Cir. 2022), cert. denied,
144 S.Ct. 69 (2023), cert. granted in part sub nom., Moody v. NetChoice, LLC, No. 22-277,
2023 WL 6319654 (Sept. 29, 2023).
52
U.S. CONST. amend. I.
53
Id.
54
See discussion about the nexus theory infra Section I.B.2.
55
See discussion about state actor analysis under Halleck infra Section I.B.1.
137 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
A. Examining the Involved Parties and How They Interact
What Pico’s splintered opinion could not address was the unprecedented
explosion of the Internet and online services. There is a breadth of information
available at the push of a search button. Sources like OverDrive, Epic, and
EBSCO offer hundreds of thousands of free or cheaply accessible books,
allowing libraries to join the digital age and offer e-book services as an
extension of the brick-and-mortar library.
56
Arguably, the breadth of
information and the ease with which one can access it would render banning
books a moot exercise, especially because the e-book services with which public
libraries contract are private entities.
57
However, library officials and
legislatures still attempt to ban books,
58
a process drastically complicated by
the fact that they can no longer completely control the inventory of books
available to the public.
59
1. Understanding the Parties Involved and Their Rights and
Obligations
To address book bans in a digital world, it is first important to understand
the parties—who they are, how they interact, and what rights and obligations
each party has and to whom.
56
See, e.g., Jessica Duffin Wolf, Check Out Libby, LITERARY REV. OF CAN. (Jan.–Feb. 2020),
https://perma.cc/Y3B3-26T9 (“Today, patrons [of the Toronto Public Library] can browse
over 180,000 [titles on Libby, OverDrive’s library-specific app] — often through catchy,
thoughtfully curated lists.”). Additionally, libraries frequently offer a number of e-book
services, further increasing the number of books available. For example, at the time of
writing, my hometown of Farmington, Connecticut is home to two public libraries, which
offer access to a number of databases. Including books, audiobooks, comics, magazines,
music, and videos, the two libraries offer access to at least nine different online databases,
available as long as a patron has a valid library card. A-Z Resources, FARMINGTON LIBRS.,
https://perma.cc/K2G9-3KM9.
57
See discussion about e-book services as government actors and private entities infra
Section I.B.1. Beyond potential First Amendment litigation, libraries who suspend e-book
services could open themselves up to litigation for breach of contract with the e-book
services themselves. While such litigation could offer an additional method of maintaining
access to e-book services, the contract law discussion is beyond the scope of this Note.
58
Adolfo Pesquera, A Battle Is Brewing over Banned Books—And Lawyers Are Picking Sides,
TEX. LAW. (Apr. 27, 2022, 2:35 PM), https://perma.cc/N3JN-4UQF.
59
See Joe Hernandez, In a Lawsuit, A Group of Texas Library Patrons Says a Book Ban
Amounts to Censorship, NPR (Apr. 26, 2022, 2:01 PM ET), https://perma.cc/9BZY-MTGR
(“Because they couldn't control the titles on OverDrive, the Llano County Commissioners
instead voted to suspend the use of OverDrive altogether in December, the suit says, even
though it has a mechanism for parental controls.”).
Fall 2023 BOOK BANNING GOES DIGITAL 138
a. Library Patrons
At the center of potential conflicts are the library patrons. Patrons do not
have First Amendment obligations. Rather, school and public libraries have an
obligation to their patrons not to restrict the free access to information. These
libraries fail in that obligation when they ban books beyond those which can
survive a viewpoint-neutrality and reasonableness inquiry or a Pico analysis.
60
This Note focuses on patrons’ “penumbral right to receive information.”
61
Patrons will always be at the center of book banning conflicts, because they are
the consumers directly affected by bans. Digital or brick-and-mortar, banning a
book may offend their First Amendment right to the information in that book.
b. Libraries and Library Officials
Public and school libraries and their officials are state actors, and thus have
First Amendment obligations. Notably, “the First Amendment does not merely
prohibit the government from enacting laws that censor information, but
additionally encompasses the positive right of public access to information and
ideas.”
62
As such, it is important to examine where public officials might offend
this right by restricting access to books.
63
While librarians often vocally oppose
book bans,
64
libraries and library officials may offend the right to information
when they remove or restrict access to books based on a sua sponte evaluation,
public pressure, or legislation.
School and public libraries are limited public forums, meaning forum
doctrine comes into play when considering the validity of any kind of book
ban.
65
Forum doctrine offers a state the right to designate government property
60
See Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992) (finding
that libraries that restrict patrons’ access violate the First Amendment); see also Bd. of Educ.,
Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 871 (1982) (finding viewpoint-
based book bans in schools violate the First Amendment); Christian Legal Soc’y Chapter of
the Univ. of Cal., Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 679 (2010) (“Any access
barrier [in a limited public forum like a public library] must be reasonable and viewpoint
neutral.”).
61
Kreimer, 958 F.2d at 1252 (internal quotations omitted).
62
Id. at 1255 (emphasis added).
63
For discussion of state legislatures’ efforts to ban books on a state-wide level, see
discussion infra Section I.A.1.d.
64
See, e.g., Erika Hayasaki, How Book Bans Turned a Texas Town Upside Down, N.Y. TIMES
MAG., https://perma.cc/3ZDY-8W29 (Sept. 9, 2022).
65
Kreimer, 958 F.2d at 1259.
139 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
for specific uses.
66
As such, “the [l]ibrary is obligated only to permit the public
to exercise rights that are consistent with the nature of the [l]ibrary and
consistent with the government's intent in designating the [l]ibrary as a public
forum.”
67
The Supreme Court held in 2010 that a library’s restriction on free
speech—and by extension, the freedom of information—as a limited public
forum must be reasonable and viewpoint-neutral.
68
This Note’s analysis hinges
largely on whether such e-book bans are viewpoint-neutral in determining if
they violate library patrons’ First Amendment rights.
c. Pro-Book Ban Politicians and Groups
There are a number of lobbying groups and politicians staunchly in support
of book bans, and who frequently spearhead the efforts to ban books to which
they object. For example, former Texas State Representative and chair of the
Texas House’s General Investigating Committee, Matthew Krause compiled and
distributed a list of 850 books that “might make students feel discomfort, guilt,
anguish, or any other form of psychological distress because of their race or
sex.”
69
School district officials removed a number of titles on this list,
70
despite
the lack of any legal obligation to do so. Similarly, the right-wing group Moms
for Liberty has successfully led book banning efforts in a number of conservative
states by distributing lists of books they oppose and rallying representatives to
pressure school boards and library officials to remove those books.
71
While
these actors are not directly offending the First Amendment, their influence on
state legislatures and library officials cannot be overlooked.
d. State Legislatures
State and local governments, particularly in conservative states, pose
additional challenges in the fight for access to information.
72
In 2018, the Board
66
See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985).
67
Kreimer, 958 F.2d at 1262.
68
See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the L. v. Martinez,
561 U.S. 661, 669 (2010).
69
Shearer, supra note 3, at 30 (quoting Bill Chappell, A Texas Lawmaker Is Targeting 850
Books That He Says Could Make Students Feel Uneasy, NPR (Oct. 28, 2021, 1:00 PM EDT),
https://perma.cc/7MFN-WLZN).
70
Hayasaki, supra note 64.
71
Id.
72
Hannah Natanson, The Next Book Ban: States Aim to Limit Titles Students Can Search for,
WASH. POST (May 10, 2022, 7:26 AM EDT), https://perma.cc/7LTN-WTUP (discussing a
Fall 2023 BOOK BANNING GOES DIGITAL 140
of Utah Education Network revoked student access to EBSCO K12 databases,
Utah public schools’ e-book service of choice, after a “self-described concerned
parent” alleged that pornography was available on the database.
73
However,
when state officials could not locate these allegedly inappropriate materials,
Utah reinstated access to EBSCO.
74
Utah state officials then passed H.B. 38,
requiring “digital resources, provided by [Utah Education and Telehealth
Network Board (“UETN”)] to Utah’s public schools, to block obscene or
pornographic material” and requiring UETN “to enter into contracts with digital
resource providers that comply with the provisions of [H.B. 38].”
75
The “School
Technology Amendments” bill defines “obscene or pornographic material” as
material that:
(a) an average person, applying contemporary community standards,
finds that, taken as a whole, appeals to prurient interest in sex;
(b) is patently offensive in the description or depiction of nudity, sexual
conduct, sexual excitement, sadomasochistic abuse, or excretion; and
(c) taken as a whole does not have serious literary, artistic, political, or
scientific value.
76
Similar laws are at issue in Minnesota, Oklahoma, Tennessee, and several
other states.
77
number of proposed, passed, and defeated state legislation, all of which attempt to regulate
access to e-book services).
73
A Win for Utah Students and Teachers – EBSCO Access Reinstated, EVERYLIBRARY (Oct. 23,
2018), https://perma.cc/HWF4-4UJ5. It is important to note that “[t]he ‘concerned parent’
who initially complained is, in fact, a conservative blogger who had already been working
with parents, and with Family Watch International, in Colorado to ban EBSCO from schools.”
Id. Politically hot topics are at the center of the banning book debate, and allegedly “sexually
explicit,” “inappropriate,” or “obscene” content exists most frequently in books containing
depictions of queer stories and discussing critical race theory. See, e.g., Top 10 Most
Challenged Books Lists, AM. LIBR. ASS’N, https://perma.cc/YBV6-5XQU (containing an
aggregated list of the top ten most frequently banned books and their reason for being
banned going back to 1990).
74
EVERYLIBRARY, supra note 73.
75
H.B. 38, 64th Leg., 2021 Gen. Sess. (Utah 2021); see also UTAH CODE ANN. § 53B-17-109
(West 2023).
76
H.B. 38, 64th Leg., 2021 Gen. Sess. (Utah 2021); see also UTAH CODE ANN. § 53B-17-101.5
(West 2023).
77
Natanson, supra note 72; see also H.B. 2454, 112th Gen. Assemb., Reg. Sess. (Tenn. 2022).
141 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
e. E-Book Services
E-book services are the new entity complicating the existing First
Amendment doctrine surrounding book bans. The framework of a book ban
prior to e-book services used to be relatively simple: state legislation, public
outcry, or some other pressure would cause library officials to remove a book
from their shelves, depriving physical access to their patrons. However, this
new relationship between library patrons, e-book services, and libraries is more
complicated. Libraries contract with e-book services to provide digital library
access to patrons.
78
Generally, this means library patrons must have library
credentials to access the e-book service.
79
Patrons do not need a separate
account to access the e-book library, nor do they need to pay for e-book
services directly.
If e-book services are private entities with their own First Amendment
rights,
80
then library or state officials likely cannot force an e-book service to
remove a book. If they are private entities, rather than a service completely
under the library’s control or some form of state actor,
81
this prompts a number
of currently unanswered questions. Do patrons still have a First Amendment
right to information offered on an e-book service if it is not owned by the library
in the way that physical books are? Can libraries restrict their patrons’ access
to the books on another platform because an e-book service is not a part of the
public library? This Note addresses these questions in turn below.
Additionally important is questioning the nature of the relationship
between libraries and e-book services and whether that relationship can be
interpreted in such a way that a court could protect patrons’ access to e-book
services. States forcing e-book services to remove or host content might have
contractual complications. However, such arguments are beyond the scope
here. This Note is concerned specifically with the rights of library patrons. The
framework for considering the rights of patrons, rather than e-book services or
libraries, is best exemplified by the ongoing case Little v. Llano County, in which
78
See, e.g., Public Libraries, OVERDRIVE, https://perma.cc/6WF2-UX5S (“An OverDrive digital
collection allows libraries to extend beyond their physical walls and offer anytime, anywhere
access to ebooks, audiobooks, magazines and more . . . .”).
79
Id.
80
See Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 365 (2010) (“[T]he Government
may not suppress political speech on the basis of the speaker's corporate identity.”).
81
See infra notes 121–31 and accompanying text (discussing case in which the Supreme
Court held that a private entity could have First Amendment obligations if it performed a
traditional and exclusively public function).
Fall 2023 BOOK BANNING GOES DIGITAL 142
library patrons sued a public library in part for suspending access to an e-book
service, claiming that it violated their First Amendment right to information.
82
2. The Conflicts Begin: Little v. Llano County
Despite a rise in book bans in recent years,
83
no court has yet determined
if a school or public library violates the First Amendment when it suspends
access to an e-book service in order to restrict access to certain books.
84
Additionally, while multiple conservative states have attempted to restrict
access to books in school libraries, no court has addressed the suspension the
e-book service of a more broadly accessible public library. Thus, Little v. Llano
County appears to be a case of first impression and awaits final disposition in
the Fifth Circuit.
Little v. Llano County involves the Llano County Library System, in Llano
County, Texas.
85
In 2021, library officials responded to complaints about
“pornographic filth” in the children’s books sections, including books
purportedly about “child grooming,” critical race theory, LGBTQ+ stories, and
other “inappropriate” books.
86
In December of 2021, state officials closed Llano
County libraries for three days to review the library catalog and check the
shelves for “inappropriate books.”
87
Officials did not define “appropriate”
82
Little v. Llano County, No. 1:22-CV-424-RP, 2023 WL 2731089 (W.D. Tex. Mar. 30, 2023),
appeal filed, No. 23-50224 (5th Cir. Apr. 4, 2023), argued, No. 23-50224 (5th Cir. June 7,
2023).
83
For example, “2020 marked a precipitous increase in requests for book bans relating to
race, racial justice, and more generally, stories of ‘Black, Indigenous, or people of color,’ or
‘BIPOC.’ This revival of book bans corresponds with the increased public awareness of social
justice movements and critical race theory following the murder of George Floyd in May
2020.” Shearer, supra note 3, at 28 (footnote omitted); see also Hannah Natanson, School
Book Bans and Challenges, at Record Highs, Are Rising Again, WASH. POST,
https://perma.cc/6Y6S-5DAG (Sept. 19, 2022, 2:31 PM EDT) (noting “681 attempts to ban or
restrict access to 1,651 different books in schools between Jan. 1 and Aug. 31 of [2022]”).
84
See generally Llano County, 2023 WL 2731089. To the author’s knowledge, this is the only
e-book ban to reach a federal court. However, at the time of writing, the Brevard County
school system has also suspended access to the Epic app previously available to its students,
claiming “it didn’t want kids to have access to material its own school librarians hadn’t
vetted.” David Ingram, Conservative Parents Take Aim at Library Apps Meant to Expand
Access to Books, NBC NEWS (May 12, 2022, 9:00 AM EDT), https://perma.cc/83Z3-7B2Z. No
lawsuit had been filed at time of writing.
85
Llano County, 2023 WL 2731089, at *1.
86
Id. at *2–*3; see also discussion about Maurice Sendak’s In the Night Kitchen and books
about bodily functions infra Sections II.A.2.a, II.A.2.b.
87
Id. at *3 (internal quotations omitted).
143 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
versus “inappropriate.”
88
Officials removed books identified as inappropriate
by people like former Texas Representative Matthew Krause, who distributed a
list of roughly 850 books he deemed to be inappropriate.
89
By that time, Llano
County officials had also voted unanimously to suspend access to OverDrive,
Llano County’s e-book service of choice, because two books at issue—Bow by
Jonathan Evison and Gender Queer by Maia Kobabe—were still accessible to
library patrons though OverDrive.
90
In April of 2022, a number of Llano County residents sued members of the
Llano County Commissioners Court, the Llano County Library Board, and Llano
County Library System Director Amber Milum alleging violations of their First
Amendment rights.
91
The plaintiffs wish to “exercise their First Amendment
rights to access and receive information in the ebooks and audiobooks on
OverDrive.”
92
They allege that Llano County’s public officials improperly relied
on the pretext of “a hunt to eradicate ‘pornographic’ materials” from its shelves
as a means to restrict access to books where the officials disagree with the
political viewpoints present in the work or dislike the book’s content.
93
Notably,
plaintiffs allege that Llano County public officials “permanently terminated
access to over 17,000 digital books because [public officials] could not censor
and ban two specific ebooks that they disliked from the County’s digital book
collection.”
94
According to the challengers, the community, particularly elderly
patrons “who struggle to read books in print and listen to audiobooks instead,”
relied heavily on OverDrive prior to its suspension.
95
Llano County officials
initially attempted to remove the two books from OverDrive and, realizing
OverDrive had no individual removal or restriction mechanism, suspended
access to the entire service for adults and children indefinitely.
96
Parental
controls would filter the two books at issue, and OverDrive informed officials as
such.
97
However, Llano County never reinstated OverDrive.
98
The challengers
88
Id.
89
Hayasaki, supra note 64.
90
Llano County, 2023 WL 2731089, at *2–*3.
91
Id. at *1, *3.
92
Complaint, supra note 25, ¶ 137.
93
Id. ¶ 4.
94
Id. ¶ 2.
95
Id. ¶ 29.
96
Id. ¶¶ 78–79, 86, 88, 95.
97
Id. ¶¶ 81, 83.
98
Id. ¶¶ 88, 95.
Fall 2023 BOOK BANNING GOES DIGITAL 144
alleged Llano County public officials’ actions amount to viewpoint
discrimination in violation of the patrons’ First Amendment rights.
99
On March 30, 2023, the United States District Court for the Western District
of Texas entered judgment on Llano County’s motion to dismiss and plaintiffs’
motion for a preliminary injunction.
100
Although the district court dismissed
plaintiffs’ claims regarding OverDrive, it did so only based on a deficiency in
pleadings, not due to an unresolved claim.
101
The district court did not dismiss
the OverDrive-related pleadings because Bibliotheca, the service with which
officials replaced OverDrive, is a “comparable” service, like Llano County
officials allege.
102
Rather, it dismissed the claims because plaintiffs did not
specify which books were unavailable on the new service.
103
As such, the district
court could not determine the motivations for and subsequent constitutionality
of replacing OverDrive with Bibliotheca and whether patrons had a First
Amendment right to the information available in the specific books not
available on the new service.
104
The district court noted that the “[p]laintiffs’
injury appears to be the violation of their right to access information through
the online book database OverDrive,” suggesting that the district court itself is
convinced that there may be some right to the information offered on this
privately-operated service.
105
However, the order does not offer a clear rule for
libraries. While the district court noted that “the evidence shows that the
County replaced OverDrive with a comparable online service,” it is not clear
based on the short order what a comparable service is, whether a comparable
service is sufficient to avoid a First Amendment violation, or indeed if library
patrons have a First Amendment right to information on e-book services at
all.
106
99
Id. ¶¶ 142–47.
100
Little v. Llano County, No. 1:22-CV-424-RP, 2023 WL 2731089 (W.D. Tex. Mar. 30, 2023),
appeal filed, No. 23-50224 (5th Cir. Apr. 4, 2023), argued, No. 23-50224 (5th Cir. June 7,
2023).
101
Id. at *6.
102
See id. at *5.
103
Id. at *6.
104
See id. (“Without allegations regarding specific books, and given that some of the books
at issue are available through Bibliotheca, the Court cannot find, based on the pleadings, that
Bibliotheca does not sufficiently replace OverDrive database.”).
105
Id.
106
Id.
145 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
The district court granted plaintiffs’ motion for a preliminary injunction,
ordering Llano County officials to return physical books to the library shelves.
107
However, because of the deficient pleadings, the district court dismissed the
OverDrive-related claims.
108
Llano County appealed the order to the United States Court of Appeals for
the Fifth Circuit, which stayed all district court proceedings until the Fifth Circuit
had “sufficient time to consider Appellants emergency motion for [a] stay” of
the preliminary injunction.
109
It is important to note that “as early as
March 2022, [Llano County officials] were trying to remove books they had
already purchased through Bibliotheca, due to concerns about their
appropriateness.”
110
Llano County officials have not stopped trying to ban e-
books while this issue remains unresolved.
Because this is an issue of first impression and the district court dismissed
based on deficient pleadings, rather than lack of standing or failure to state a
claim, it is still not clear how a court would handle this question. Introducing a
third-party service requires additional examination beyond the traditional Pico
analysis for a school library or the reasonableness and viewpoint neutrality
inquiry for public libraries. To analyze whether a library has violated its patrons’
First Amendment rights, a court must first determine if those patrons have a
First Amendment right to information available on a third-party service offered
through a library.
B. E-Book Services as an Extension of the Physical Library
There exists a significant relationship between the library and its chosen e-
book service. Libraries that offer an e-book service, particularly those that have
advertised it, have backed themselves into a legal corner because both patrons
and administrators perceive the e-book service as a library offering.
111
Public
schools that offer free access to online services face the same issues.
112
This
107
Id. at *13 (“Defendants must therefore be prevented from removing the books, and the
books at issue be made available for checkout through the Library System's catalogs.”).
108
Id.
109
Order of USCA, Little v. Llano County, No. 1:22-CV-424-RP (W.D. Tex. Mar. 30, 2023),
ECF No. 176.
110
Llano County, 2023 WL 2731089, at *12.
111
See infra text about nature of relationship between patrons and e-book services
accompanying notes 146–54.
112
See infra text about nature of relationship between students and e-book services
accompanying notes 155–61.
Fall 2023 BOOK BANNING GOES DIGITAL 146
Section examines the complicated nature of the relationship between e-book
services and libraries. First, it discusses whether a court could consider e-book
services a state actor under the seminal case Manhattan Community Access
Corp. v. Halleck.
113
That analysis will contemplate whether e-book services, and
by extension libraries, offer a traditional and exclusive public function. Finding
that they do not, and thus do not satisfy the Halleck standard, this Section
argues that courts should allow patrons to sue state officials for suspending
access to privately-operated e-books by invoking a theory presented in ADA
jurisprudence, known as the nexus theory. Under this framework, the
relationship between physical libraries and online e-book services is so
significant that the former confers First Amendment obligations to the latter.
Such a relationship is essential to establishing the nexus necessary to find e-
book services are an extension of a public library and are therefore subject to
the same protections of the First Amendment.
1. Are E-Book Services State Actors Under Halleck?
A favorable finding using an analysis under Halleck would be the easiest
route to finding that patrons have a right to information available on e-book
services. Under Halleck, private services that perform public services can
sometimes be treated as public entities, binding them by the same
constitutional obligations to which the government is bound.
114
If a court found
that an e-book service is the kind of actor bound by Halleck, patrons could easily
argue that libraries and e-book services violate their First Amendment rights
when depriving patrons of access to information available on the services.
However, the nature of e-book services are such that they likely fail Halleck. In
considering the nature of the relationship between e-book services and
libraries, an analysis under Halleck could dispose of the question of whether a
library patron has a First Amendment claim when they lose access to the e-book
service by finding that e-book services temporarily act as state actors in their
contracts with public and school libraries.
115
If they are state actors, then e-
113
Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921 (2019).
114
Id. at 1928 (“Under this Court's cases, a private entity can qualify as a state actor in a few
limited circumstances—including, for example, (i) when the private entity performs a
traditional, exclusive public function; (ii) when the government compels the private entity to
take a particular action; or (iii) when the government acts jointly with the private entity.”
(citations omitted)).
115
See id.
147 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
book services would have the same First Amendment obligations to their
patrons that public libraries have. However, as discussed below, e-book services
cannot pass a Halleck test and cannot be treated as state actors.
Halleck involved New York City’s decision to delegate the operation of its
public access cable stations to the private, nonprofit corporation Manhattan
Neighborhood Network (“MNN”).
116
MNN temporarily suspended plaintiffs
Halleck and Melendez from producing content for MNN following Halleck and
Melendez’s production of a documentary criticizing MNN’s alleged neglect of
the East Harlem community.
117
The hosts and network had several additional
disagreements, after which MNN permanently suspended both plaintiffs.
118
The plaintiffs then brought suit alleging that MNN violated their First
Amendment rights in suspending them.
119
MNN argued they were not a state
actor and thus did not have a duty to carry their speech under the First
Amendment.
120
The Supreme Court found in favor of MNN. The opinion introduced a new
inquiry: “whether the activity in question constitutes ‘a traditional, exclusive
public function.’”
121
A traditional, exclusive public function involves “powers
traditionally exclusively reserved to the State.”
122
Importantly,
[i]t is not enough that the federal, state, or local government exercised
the function in the past, or still does. And it is not enough that the
function serves the public good or the public interest in some way.
Rather, to qualify as a traditional, exclusive public function within the
meaning of our state-action precedents, the government must have
traditionally and exclusively performed the function.
123
116
Id. at 1927.
117
Id.
118
Id.
119
Id.
120
Id.
121
Graham L. Fisher, Case Note, Lights, Camera, State Action: Manhattan Community Access
Corp. v. Halleck, 77 CARDOZO L. REV. DE•NOVO 165, 181 (2020).
122
Halleck, 139 S.Ct. at 1928 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974)).
123
Id. at 1928–29; see also id. at 1929 (“The relevant function in [Halleck] is operation of
public access channels on a cable system. That function has not traditionally and exclusively
been performed by government.”).
Fall 2023 BOOK BANNING GOES DIGITAL 148
Ultimately, “when a private entity provides a forum for speech, the private
entity is not ordinarily constrained by the First Amendment because the private
entity is not a state actor.”
124
Here, the relationship between e-book services is more “analogous to a
government license [or] a government contract” than a traditional, exclusive
function.
125
A government contract does not make that private entity a state
actor unless the entity satisfies Halleck.
126
E-book services have contracts with
school and public libraries but do not perform a service exclusively relegated to
public entities. The standard model adopted by public libraries that offer free
access to online books does so by offering free access to a privately operated
e-book service with whom the library has a contract.
127
More broadly, libraries
themselves are not a service that has been traditionally and exclusively offered
by the state. While there are over 120,000 libraries in the United States, that
number as of May 2023 includes over 22,000 private school libraries, over 3,000
college and university libraries (both public and private), and nearly 5,000
“special” libraries, including corporate, medical, law, and religious libraries.
128
Indeed, some of the most famous libraries in the country are privately owned.
The Folger Shakespeare Library, for example, is owned by a private trust and
operated by Amherst College.
129
Similarly, the John Carter Brown Library,
located on Brown University’s campus, is independently funded.
130
While
libraries are majority public-funded, they are not exclusively or traditionally a
public function.
131
124
Id. at 1930.
125
Id. at 1931.
126
Id.
127
About ALA eEditions E-Books, AM. LIBR. ASS’N, https://perma.cc/B6XE-DHBV. Indeed, in
researching this Note, not a single contrary example—a library offering its own publicly
operated e-book service or a publicly-run e-book service—could be located.
128
Library Statistics and Figures: Number of Libraries in the United States, AM. LIBR. ASS’N.,
https://perma.cc/F7SY-D3W9 (May 3, 2023, 2:56 PM).
129
Our Story, FOLGER SHAKESPEARE LIBR., https://perma.cc/3JDK-E76K.
130
About, JOHN CARTER BROWN LIBR., https://perma.cc/6LBW-2XZY.
131
Halleck has been criticized for being too narrow and establishing precedent that allows
private actors to avoid liability. A major criticism is that it allows the government to contract
with private entities to avoid obligations owed to patrons—“a government entity could
contract out work in fields that are not traditional and exclusive public functions to avoid
facing repercussions for actions that may not comply with constitutional requirements.”
Fisher, supra note 121, at 191. However, the effects of Halleck more broadly on state actor
doctrine as a whole is beyond the scope of this Note.
149 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
Even a broad reading of Halleck that might consider an entity a state actor
if it offers the digital equivalent of a traditionally and exclusively public function
would still not be sufficient. E-book services do not offer the digital equivalent
of a traditionally and exclusively public function. If a patron tried to bring a claim
against the e-book service using a Halleck rationale, the claim would fail—the
service itself has no First Amendment obligations because it is not a state actor.
However, what if the library’s First Amendment obligations extended to its
offering of this privately-operated service? A plaintiff-patron could pursue an
alternative cause of action to successfully argue that they have a right to the
information on the e-book service. While a Halleck analysis would not solve the
issue, it is still possible to ensure library patrons are guaranteed access to their
libraries’ e-book services. The cause of action simply needs to be against the
state actors.
2. The Nexus Theory: How Courts Have Handled the ADA and How It
Is Analogous
No court has yet detailed how best to deal with e-book services and book
banning. If looking to ensure library patrons have a First Amendment claim
against state officials when those officials suspend an e-book service, courts
must look to other areas of law. When contemplating this question, courts
should consider the framework some circuits use when dealing with websites
and Title III of the Americans with Disabilities Act (“ADA”), also known as the
“nexus theory.” Though not a perfect fit, as the ADA applies to private actors,
the principles are informative. The theory could offer First Amendment
protections for patrons where the Halleck rationale would fail them. A Halleck
analysis offers a cause of action against the private entity, but the nexus theory
would guarantee patrons a cause of action against the state, an entity bound
by the First Amendment, when state officials suspend access to e-book services
by treating e-book services as part of the library.
The Ninth and Eleventh Circuits have held that the ADA covers websites
when there exists “some connection between the good or service complained
of and an actual physical place.”
132
Where a website impedes access to “the full
132
Earll v. eBay, Inc., 599 F. App'x 695, 696 (9th Cir. 2015) (quoting Weyer v. Twentieth
Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000)); see Haynes v. Dunkin' Donuts
LLC, 741 F. App'x 752, 754 (11th Cir. 2018) (“It appears that the website is a service that
facilitates the use of Dunkin’ Donuts’ shops . . . .”); see also Robles v. Domino's Pizza, LLC,
913 F.3d 898, 905 (9th Cir. 2019) (“The alleged inaccessibility of Domino's website and app
impedes access to the goods and services of its physical pizza franchises . . . .”).
Fall 2023 BOOK BANNING GOES DIGITAL 150
and equal enjoyment of goods and services” offered in physical locations, that
website violates Title III of the ADA.
133
Courts treat the website as an extension
of the brick-and-mortar building because the website offers the same services
or an extended service to that of the physical location. Where the purpose of
the website and the physical location are the same, despite the fact that the
ADA does not mention websites, courts have found that the digital service
offered by the brick-and-mortar location is also subject to federal law.
134
The
general principle—that physical locations offering online services should not
escape scrutiny in the digital sphere when that service is significantly related to
the service offered in person—applies easily to the relationship between e-
book services and physical libraries.
People frequently seek out the same or similar services online and in
person.
135
For example, a restaurant that serves pizza may allow patrons to
order a pizza at the restaurant or to order it on the app the restaurant
provides.
136
Both the digital and in-person service are the same, and thus are
subject to the same scrutiny under the ADA because the digital service has a
sufficient nexus to the physical location.
137
Now consider the role of a public or school library. While libraries have a
number of secondary social functions, this Note is focused with the core
purpose of a library: the dissemination of and interaction with literature.
Libraries, both school and public, are “place[s] dedicated to quiet, to
knowledge, and to beauty.”
138
Student and public patrons alike “must always
remain free to inquire, to study and to evaluate, to gain new maturity and
understanding.”
139
And at the center of the “worthy mission[] of facilitating
learning and cultural enrichment”
140
are the books, magazines, periodicals, and
other resources for the “interest, information, and enlightenment of all people
133
Nat'l Fed'n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 956 (N.D. Cal. 2006).
134
See, e.g., Domino’s Pizza, 913 F.3d at 904–06.
135
See id.
136
Id. (comparing the services offered in-person at Domino’s and on their app, ultimately
holding in part that those services are the same).
137
See id.
138
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 868 (1982)
(quoting Brown v. Louisiana, 383 U.S. 131, 142 (1966)).
139
Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).
140
United States v. Am. Libr. Ass'n, Inc., 539 U.S. 194, 203 (2003).
151 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
of the community the library serves.”
141
In short, a library is the “quintessential
locus of the receipt of information.”
142
Thus, although a brick-and-mortar library may offer a number of secondary
functions, like serving as a social hub, the fact remains that a library’s primary
purpose is to provide the public with access to books.
143
E-book services serve
the same purpose.
144
Indeed, OverDrive intends to create “a world enlightened
by reading.”
145
In offering a service meant to serve as an extension of the
traditional brick-and-mortar library, the e-book service furthers the primary
goal of a library. At their core, the purpose of a library and an e-book service
are the same—to facilitate the dissemination of ideas through literature. Thus,
when considering that core purpose, it becomes easy to argue that an e-book
service is an extension of or nexus to a physical library.
Beyond working towards a common goal, both school and public libraries
have the same kind of significant relationship between the e-book service and
the library that exists in the ADA nexus line of cases. In other words, beyond
having the same core purpose, e-book services and libraries have the same
sorts of functions necessary to find a nexus between them. These services
“have become part of the basic digital infrastructure at many schools and public
libraries.”
146
Tellingly, OverDrive describes itself as a public library service.
147
Most importantly, patrons need a library card to access the service—the
strongest indication that this is the same service offered in person.
148
Public
library patrons perceive e-book services as an extension of the library’s
services—patrons “check out” e-books with the service in the same way one
141
Id. at 203–04 (quoting Am. Libr. Ass'n, Inc. v. United States, 201 F. Supp. 2d 401, 420
(E.D. Pa. 2002)).
142
Sund v. City of Wichita Falls, 121 F. Supp. 2d 530, 547 (N.D. Tex. 2000) (quoting Kreimer
v. Bureau of Police for Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992)).
143
See Pico, 457 U.S. at 868.
144
Public Libraries, OVERDRIVE, https://perma.cc/XA74-TB3Z (“Your library provides a critical
service to the community, offering an invaluable reading and learning resource to users of
all ages. Expand your reach and engagement even further with a digital collection. An
OverDrive digital collection allows libraries to extend beyond their physical walls and offer
anytime, anywhere access to ebooks, audiobooks, magazines and more . . . .”).
145
OVERDRIVE, supra note 15.
146
Ingram, supra note 84.
147
Id. (“‘Over 20 years, there’s not really been any history of a sustained challenge like this
to our public library service,’ said Steve Potash, the founder and CEO of OverDrive . . . .”)
148
Complaint, supra note 25, ¶ 29 (“Prior to the events giving rise to this lawsuit, the Llano
County Library System provided library cardholders with a digital catalog called ‘OverDrive,’
which gave library patrons access to a curated collection of over 17,000 digital ebooks and
audiobook titles.” (emphasis added)).
Fall 2023 BOOK BANNING GOES DIGITAL 152
does in a physical library
149
and consider physical and e-books together.
150
Elderly patrons and patrons with disabilities are particularly reliant on these
services, and often can only use the digital e-book service in place of the
physical library.
151
Additionally, administrators treat e-book services in the same way they
treat library books. In Llano County, administrators targeted e-books and paper
books with the same goal: to remove them entirely from the library.
152
The
difference in the result was not that e-books are somehow a separate service
from the library, but rather that the medium is different. Administrators
intended to remove the offending titles from the service in the same way that
one would pull a book of the shelf, not ban OverDrive altogether.
153
Although
“e-reader apps [have not] replaced printed books,” they have become
inextricably linked to the public libraries who offer their services.
154
The service
being offered—access to literature—is the same. There is the same significant
relationship and parallel service required to draw the e-book services under the
First Amendment that exists in the ADA nexus line of cases.
Similarly, e-book services have become inextricably linked to school
libraries in a way that parallels the requirements of the nexus theory.
Particularly important here is how parents and students perceive their access
to e-book databases. In the height of the COVID-19 pandemic, many schools
turned to e-book services to be able to continue educating their students and
to preserve the students’ ability to access books they were assigned.
155
Schools
often pre-install access to the online library before providing children with
school-funded technology.
156
Moreover, “digital libraries . . . allow learners of
149
Id. ¶ 30 (“Many Plaintiffs also checked out ebooks and audiobooks on OverDrive before
Defendants permanently terminated access to it.”).
150
Id. ¶ 42 n.1 (“Hereafter, all print titles that Defendants physically removed from library
shelves, as well as the two digital titles that resulted in Defendants’ permanent termination
of OverDrive, will be collectively referred to as the ‘Banned Books.’”).
151
Id. ¶ 29 (“[OverDrive] was widely and heavily used by the Llano community, particularly
by elderly patrons who struggle to read books in print and listen to audiobooks instead, as
well as by patrons with physical disabilities that make accessing a physical library location
difficult.”).
152
See id. ¶¶ 72, 79, 97.
153
See id. ¶ 97.
154
Ingram, supra note 84.
155
Id.
156
See id. (“Kimberly Hough, a parent of two children in Brevard Public Schools, said her 9-
year-old noticed immediately when the Epic app disappeared a few weeks ago because its
collection had become so useful during the pandemic.”).
153 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
all types to share resources, time and energy, and expertise to their mutual
benefit[s].”
157
Students use digital access to conduct research for assigned
projects in the same way they would a physical library.
158
E-book services allow
students more robust access to information without being hindered by a
paywall.
159
This kind of full access to information is vital to students’
preparation to engage fully with society.
160
Teachers’ main concern when
confronted with a potential suspension or ban of e-books is that their students
who rely on the service will not have the same kind of access to information
that their libraries had previously granted them.
161
The nexus theory concerns
itself with whether the service offered in-person and online are essentially the
same, so patrons’ perceptions of and reliance on e-book services as inextricably
linked with brick-and-mortar libraries only serves to support finding that
necessary nexus.
Schools and government officials treat e-book services as an extension of
the school library. Conservative elected officials argue that these services must
be subject to the same scrutiny as the physical books available to students.
162
In Utah, opposition to the suspension of EBSCO was so strong that
approximately ninety-five percent of emails sent to the school board were in
favor of restoring access.
163
Ultimately, “[t]ech can enable a young person to
feel part of a larger and broader community, or tech can feel very restrictive
and assumptive in the way it portrays information.”
164
Here again, the service
being offered is the same in the digital sphere as it is in person.
More importantly, the nature of the reactions on either side of the issue—
to suspend or not to suspend—would indicate a significant relationship
between the e-book service, the library, and its patrons. There is once again the
157
Gary Marchionini & Hermann Maurer, The Roles of Digital Libraries in Teaching and
Learning, 38 COMMC’N. ACM 67, 69 (1995).
158
Id. at 68.
159
Natanson, supra note 72.
160
Id.
161
Id. (“‘These databases mean that any of my students, without regard for their economic
background, can have access to the same intellectual and practical information,’ Bergson-
Michelson said. ‘My concern is that, ultimately, my students will find themselves in a position
where they can’t access things that they care about.’”).
162
A Florida law, for example, requires that each book available to students be selected by a
school district official. Ingram, supra note 84. This law resulted in a Florida school district’s
decision to suspend access to an e-book service because they did not have the same curation
power and considered it the same kind of offering as that of a physical library book. Id.
163
EVERYLIBRARY, supra note 73.
164
Ingram, supra note 84.
Fall 2023 BOOK BANNING GOES DIGITAL 154
same significant relationship and parallel service required to draw a nexus
between e-book services and the libraries that was necessary to draw a nexus
to a website in the ADA cases.
As such, while there is no cause of action against e-book services, applying
the nexus theory could offer patrons relief against sweeping e-book bans. By
underscoring the significant relationship between e-book service and library, it
becomes far more plausible that a patron has the right to the information
offered by the library’s e-book service of choice. The nexus theory would
expand a patron’s right to information by including the e-book service as
information to which the patron has a First Amendment right.
3. Implications of Applying the Nexus Theory
There are potential complications in establishing a significant relationship
between private actors and states when considering how to apply federal law.
The Fourteenth Amendment extended First Amendment restrictions to state
and local governments.
165
Subjecting public and school libraries to the First
Amendment is a longstanding tradition.
166
However, in establishing that e-book
services are essentially a part of a library, there exists a danger that people will
improperly conflate private e-book services and public libraries, and begin to
treat these private actors as state actors because of their significant
relationships with these state actors. E-book services retain the right as private
actors to decide not to offer a book, including those that are controversial or
routinely banned.
167
In such a case, in addition to suing the library, patrons
unhappy with a decision to restrict offerings might sue the e-book service itself,
claiming a violation of the right to information seen in library jurisprudence.
168
If a court considers that e-book service to be subject to the same First
Amendment obligations as those of a public library, e-book services might stop
165
See, e.g., Edwards v. South Carolina, 372 U.S. 229, 237 (1963) (“The Fourteenth
Amendment does not permit a State to make criminal the peaceful expression of unpopular
views.”).
166
See, e.g., Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 864
(1982) (“[W]e have necessarily recognized that the discretion of the States and local school
boards in matters of education must be exercised in a manner that comports with the
transcendent imperatives of the First Amendment.”).
167
See discussion about e-book services as private actors infra Sections I.B.1, I.B.3.
168
See, e.g., Pico, 457 U.S. at 867 (“[The] right [to receive information and ideas] is an
inherent corollary of the rights of free speech and press that are explicitly guaranteed by the
Constitution . . . .”).
155 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
contracting in states where book bans are rampant. This could dramatically
reduce access to literature and information in mostly conservative states. As
such, courts need to be careful in how they approach the relationship between
e-book services and the libraries so that, in their consideration of a library’s
potential offending of the First Amendment, the court does not chill e-book
services’ willingness to serve the patrons relying on the services.
4. Response to the Complications: Only the Government Can Offend
the Right to Information, Not Private Actors
E-book services and libraries come together to offer services to patrons,
but that does not mean that the e-book services as private actors can or should
be subject to the constitutional requirement to comply with the First
Amendment right to information. As private actors, e-book services do not have
to comply with a library’s desire to ban a book. However, libraries should not
be able to suspend that e-book service for not cooperating unless the library
replaces that e-book service with one that provides comparable access to
information. The impetus to protect the right to receive information rests on
government actors, not the private entities with whom they contract.
Only the government can offend the right to receive information—the right
at issue in book banning jurisprudence.
169
The First Amendment extends
beyond prohibiting government censorship to a right to information and ideas,
including the right to “some level of access to a public library”
170
or school
library.
171
In order to protect the exchange of “novel and unconventional
ideas,” the First Amendment must “embrace[] the right to distribute literature
and necessarily protects the right to receive it.”
172
Only the government can
violate a member of the public’s First Amendment right to information.
173
Libraries treating e-book services as an extension of their physical location does
169
See, e.g., Sheck v. Baileyville Sch. Comm., 530 F. Supp. 679, 685–86 (D. Me. 1982).
170
Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992).
171
Schroeder, supra note 41, at 374 (“That right to information ensured that students would
be able to meaningfully participate in a democratic society upon leaving school. Justice
Brennan maintained that the ‘special characteristics of the school library’ made that space a
well-suited place for students to explore their First Amendment rights.” (footnotes omitted)
(quoting Pico, 457 U.S. at 868)); see also Kreimer, 958 F.2d at 1255 (“Pico signifies that,
consistent with other First Amendment principles, the right to receive information is not
unfettered and may give way to significant countervailing interests.”).
172
Martin v. City of Struthers, 319 U.S. 141, 143 (1943) (citation omitted) (citing Lovell v. City
of Griffin, 303 U.S. 444, 452 (1938)).
173
See, e.g., Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is now well established that the
Constitution protects the right to receive information and ideas.”).
Fall 2023 BOOK BANNING GOES DIGITAL 156
not make e-book services government actors, especially because they are not
state actors under Halleck.
174
For example, an e-book service’s decision to stop
providing the service to the library or to provide a mechanism that enables a
library to suspend access to a single book should not be considered the same
as the library choosing to stop providing the service or banning a book.
Protecting the right to information is critical, but in applying a nexus-style
theory, courts cannot posit that e-book services have some obligation under
the First Amendment to contribute to the right to receive information to which
libraries are beholden.
II. BALANCING E-BOOK BANNING AND THE FIRST AMENDMENT
“I hate it that Americans are taught to fear some books and some ideas
as though they were diseases.”
175
Once established as an extension of the library, state and local
governments’ treatment of e-book services becomes subject to the First
Amendment protections afforded to its patrons. This Section will deal with sua
sponte evaluations and decisions to ban books—decisions from local officials,
legislation, and the libraries themselves.
Government restrictions of speech potentially offending the First
Amendment typically fall into three categories: content-neutral, content-
based, and viewpoint-based distinctions or restrictions.
176
Restrictions that are
content-neutral limit speech without regard for the content of the message.
177
For example, libraries that prohibit yelling restrict speech, but the ban does not
interest itself with what is being yelled.
178
174
See Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1508 (2020) (holding, in this fair
use case, that annotations of statutes prepared by LexisNexis for the Georgia state
government became that of the government when merged with the official statutes, but did
not hold that LexisNexis was a government actor based on the work-for-hire agreement, and
thus lost the same copyright privileges taken from the Georgia government).
175
HERBERT N. FOERSTEL, BANNED IN THE U.S.A: A REFERENCE GUIDE TO BOOK CENSORSHIP IN SCHOOLS AND
PUBLIC LIBRARIES xxiv (2002) (quoting Kurt Vonnegut).
176
Shearer, supra note 3, at 31–32 (discussing content-neutral and content-based
restrictions); Joseph Blocher, Viewpoint Neutrality and Government Speech, 52 B.C. L. REV.
695, 696–97 (2011) (addressing viewpoint-based distinctions); see also supra notes 34–40
and accompanying text.
177
Stone, supra note 40, at 189–90 (addressing the difference between content-based and
content-neutral distinctions).
178
Id.
157 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
More often at issue in book banning is the content-based or viewpoint-
based restriction.
179
Viewpoint-based restrictions happen when “the
government has singled out a subset of messages for disfavor based on the
views expressed.”
180
Such restrictions are “the most contemptuous,
democracy-threatening restrictions on speech: ‘censorship in its purest
form.’”
181
A content-based restriction “applies to particular speech because of
the topic discussed or the idea or message expressed.”
182
Content-based
restrictions focus specifically on the content of the questioned speech, rather
than the overarching ideology in question.
183
Content-based restrictions begin
by asking if the restriction targets an unprotected category of speech.
184
Such
categories include “express incitement, false statements of fact, obscenity,
commercial speech, fighting words, and child pornography.”
185
If the court finds
that it does, it will inquire as to the speech’s relative value, the risk of
inadvertently chilling high-value speech by allowing the restriction to stand, and
other balancing factors.
186
However, determining which test applies is more
complicated than merely applying some level of scrutiny. Different tests apply
to different categories based on what the government claims to be
regulating.
187
Within the context of book banning, three of those categories are
usually at issue:
188
express incitement,
189
“defamatory falsehood,”
190
and
obscenity.
179
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 871 (1982)
(addressing content-based versus viewpoint-based restrictions in the context of a public
school library).
180
See Matal v. Tam, 582 U.S. 218, 248 (2017) (Kennedy, J., concurring) (citing Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)).
181
Douglas, supra note 38, at 727 (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 62 (1983) (Brennan, J., dissenting)).
182
Reed v. Town of Gilbert, 576 U.S. 155, 163, 171 (2015).
183
Douglas, supra note 38, at 730–31.
184
Shearer, supra note 3, at 31–32.
185
Id. at 32 (quoting Stone, supra note 40, at 194–95 (footnotes omitted)). Importantly, the
Supreme Court held in 2010 that a new category of unprotected speech only exists where
the Court finds a longstanding history, tradition, and custom of treating it as low-value. See
United States v. Stevens, 559 U.S. 460, 468–72 (2010).
186
Stone, supra note 40, at 195.
187
Id.
188
Shearer, supra note 3, at 32.
189
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (finding a state may prohibit advocating
for force or illegal acts “where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action”).
190
Gertz v. Robert Welch, Inc., 418 U.S. 323, 345–46 (1974) (“For these reasons we conclude
that the States should retain substantial latitude in their efforts to enforce a legal remedy for
defamatory falsehood injurious to the reputation of a private individual.”).
Fall 2023 BOOK BANNING GOES DIGITAL 158
Most important here is obscenity, which must survive the Miller v.
California test.
191
Miller establishes that something is obscene based on:
(a) whether “the average person, applying contemporary community
standards” would find that the work, taken as a whole, appeals to the
prurient interest;
(b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.
192
The First Amendment protects pornography if it is neither obscenity
193
nor child
pornography.
194
It additionally protects other sexually explicit or inappropriate
speech as long as it is not obscene.
When considering these distinctions in line with the existing legislation and
pending court cases dealing with e-book suspension, this second Section
addresses questions not yet answered by federal courts: how exactly does
banning e-books implicate the First Amendment? How do those restrictions
shift when dealing with school libraries versus public libraries?
A. Understanding the Titles and Viewpoints at Issue
When applying the relevant tests to public and school libraries, a library’s
decision to suspend a whole e-book service to target some allegedly offensive
books cannot survive a First Amendment challenge. In the case of public
libraries, suspending the whole service for both adults and minors in order to
target certain books allegedly inappropriate to minors is not reasonable nor
viewpoint-neutral. School libraries present additional complications: Board of
Education, Island Trees Union Free School District No. 26 v. Pico is not as clear
cut a test, and requires balancing students’ right to information with the state’s
right to educate as it sees fit.
195
However, because most recent bans seen in
191
Miller v. California, 413 U.S. 15 (1973).
192
Id. at 24 (citation omitted) (quoting Kois v. Wisconsin, 408 U.S. 229, 230 (1972)).
193
Id.
194
New York v. Ferber, 458 U.S. 747, 764 (1982).
195
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982).
159 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
schools appear to be similarly politically motivated, they also cannot survive a
Pico challenge.
1. An Aside on Romer v. Evans: What About Animus?
Before delving into the application of the competing legal tests, it is
important to note that it could be argued that neither kind of restriction could
survive rational basis review because it could be construed as animus against
minority groups, particularly Black stories, queer stories, and the stories of
other marginalized groups. The Pico court announced that it would have found
a First Amendment violation of its proposed balancing test if “an all-white
school board, motivated by racial animus, decided to remove all books
authored by [Black authors] or advocating racial equality and integration.”
196
While it has not yet been applied to the free speech context, Romer v. Evans
held that an alleged government interest is not legitimate if it is motivated by
animus towards a specific group.
197
In the case of recent book bans, the government’s purported goal or
interest has routinely been to protect children from allegedly obscene,
pornographic, or inappropriate material when they choose to regulate or
suspend e-book services.
198
However, the books that public officials select as
obscene, pornographic, or otherwise inappropriate are overwhelmingly books
about critical race theory,
199
as well as books celebrating queer stories and sex-
positive literature.
200
These stories are not obscene,
201
rarely contain material
that comes close to being pornographic, and are usually written to introduce to
196
Id. at 871 (emphasis added).
197
Romer v. Evans, 517 U.S. 620, 632 (1996) (“[T]he amendment seems inexplicable by
anything but animus toward the class it affects; it lacks a rational relationship to legitimate
state interests.”); c.f. Trump v. Hawaii, 138 S. Ct. 2392, 2421 (2018) (“[B]ecause there is
persuasive evidence that the [anti-Muslim] entry suspension has a legitimate grounding in
national security concerns, quite apart from any religious hostility, we must accept that
independent justification.”). There are clear similarities between the tests offered in Romer
and Pico, but the Supreme Court has not heard another book banning case since Pico, nor
has it applied Romer in the free speech or information context. As such, how they interact, if
at all, remains unclear and undecided.
198
See, e.g., H.B. 38, 64th Leg., 2021 Gen. Sess. (Utah 2021); H.B. 2454, 112th Gen. Assemb.,
Reg. Sess. (Tenn. 2022).
199
Shearer, supra note 3, at 26.
200
Hayasaki, supra note 64; see also Natanson, supra note 83.
201
See discussion about application of the Miller v. California test to some contested
literature infra Section II.A.3.
Fall 2023 BOOK BANNING GOES DIGITAL 160
younger audiences difficult, but arguably appropriate topics.
202
Criticisms of
critical race theory, for example, include the false theories that it incites
violence or is obscene in some way
203
—theories motivated by animus, rather
than a concern for what minor patrons’ potential exposure to truly
inappropriate or harmful content.
204
The stories being targeted are meant to
expose communities, including children and adults, to diverse perspectives, to
educate them on the more sordid and deeply racist aspects of United States
history, to teach children about their bodies in a way that is empowering and
keeps them safe, and to promote tolerance for people with different
identities.
205
Given the nature of the targeted works and political ideologies of
states which frequently ban them, it is likely that these restrictions are
motivated by animus towards marginalized communities and are an attempt to
restrict access to stories featuring those perspectives.
206
If a court were to extend Romer v. Evans to the free speech context, it is
possible that these bans could not survive rational basis review, much less any
202
See Hayasaki, supra note 64.
203
Shearer, supra note 3, at 36–38, 40–41; see also discussion questioning legitimacy of
categorizing various kinds of books as obscene infra Sections II.A.2–II.A.3.
204
See Shearer, supra note 3, at 41.
205
See Kayla Kaufman, Banned Books Week: Access to Stores Can Open Hearts and Minds,
AMS. UNITED FOR SEPARATION OF CHURCH & STATE (Sept. 21, 2022), https://perma.cc/SGM8-68XX.
206
See, e.g., Hannah Natanson, Objection to Sexual, LGBTQ Content Propels Spike in Book
Challenges, WASH. POST, https://perma.cc/Z94L-VV6J (June 9, 2023, 6:15 PM EDT) (“A stated
wish to shield children from sexual content is the main factor animating attempts to remove
LGBTQ books, The Post found. The second most common reason cited for pulling LGBTQ texts
was an explicit desire to prevent children from reading about lesbian, gay, bisexual,
transgender, nonbinary and queer lives.” (emphasis added)); Scott McFetridge et al., School
Library Book Bans Are Seen as Targeting LGBTQ Content, AP NEWS (Mar. 20, 2023,
11:23 AM EST), https://perma.cc/3YXK-PSHP (reporting arguments that “those seeking to
remove books take passages out of context and unfairly focus on books about LGBTQ or racial
justice issues”). This “stated purpose” extends beyond solely removing books from libraries
and into establishing legislation restricting access to e-books. See, e.g., H.B. 38, 64th Leg.,
2021 Gen. Sess. (Utah 2021); UTAH CODE ANN. § 53B-17-109 (West 2023). The legislation in
Utah has not yet been challenged, and Utah libraries retain access to EBSCO. See EVERYLIBRARY,
supra note 73. However, consider the requirement that e-book services that contract with
Utah libraries restrict access to materials that appeal to the “prurient interest in sex” in
juxtaposition with Utah’s conservative values and general anti-LGBTQ+ stance. H.B. 38, 64th
Leg., 2021 Gen. Sess. (Utah 2021); UTAH CODE ANN. § 53B-17-109 (West 2023). Similar to the
issues raised regarding conservative states’ treatment of critical race theory, it would be easy
for conservative states to make the argument that someone’s prurient interest in sex extends
to their interest in reading queer stories.
161 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
heightened level of scrutiny to which public or school libraries’ decisions to ban
books are subject.
207
2. A Closer Examination of Contested Works
In order to evaluate whether book bans are politically-motivated viewpoint
discrimination in violation of both limited public forum doctrine and Pico, it is
first important to understand the kinds of published materials at issue. States
differ in whether they invoke Miller v. California to claim the First Amendment
does not protect contested works.
208
This Note is not specifically concerned
with whether the specific works at issue are obscene, as its inquiry is into
viewpoint-based discrimination, not content-based discrimination.
Nevertheless, it is important to understand the kinds of contributions to
literature challenged in book bans to more broadly understand if libraries are
suppressing viewpoints. Examples of contested works generally fall into four
groups.
a. Nudity
Perhaps one of the most contested books is the graphic novel children’s
book In the Night Kitchen by Maurice Sendak, which features, in part, a nude
toddler, who falls into a dream in which he assists a baker in the creation of a
cake that needs to be ready by morning.
209
Critics of the book argue that the
nudity is without purpose, or that the milk bottles that feature prominently are
a phallic endorsement of the author’s “openly homosexual lifestyle.”
210
b. Bodily Functions and Sex Education
In cases of book banning, including the list at issue in Little v. Llano County,
there are two notable children’s book series to which people frequently
207
See Romer v. Evans, 517 U.S. 620, 632 (1996).
208
Miller v. California, 413 U.S. 15 (1973); see, e.g., H.B. 38, 64th Leg., 2021 Gen. Sess. (Utah
2021). The bill invokes language from Miller v. California to define the “obscene or
pornographic material” that the legislation prohibits. Miller, 413 U.S. at 24; H.B. 38, 64th
Leg., 2021 Gen. Sess. (Utah 2021); see also UTAH CODE ANN. § 53B-17-101.5 (West 2023).
209
See generally MAURICE SENDAK, IN THE NIGHT KITCHEN (1970).
210
Laura Cattrysse, Sendak’s In the Night Kitchen: Unusual History of Censorship, MINN. ENG.
J. (Apr. 30, 2015), https://perma.cc/D9Y3-SU7M; see also, e.g., Case Study: In the Night
Kitchen, COMIC BOOK LEGAL DEF. FUND (Aug. 27, 2020), https://perma.cc/24A5-8A3A; It’s
Perfectly Normal and In The Night Kitchen Removed from Llano County Library in Texas |
Updated, NAT’L COAL. AGAINST CENSORSHIP, https://perma.cc/QP7R-NBQK (Apr. 12, 2023).
Fall 2023 BOOK BANNING GOES DIGITAL 162
object.
211
I Need a New Butt! and its related series by Dawn McMillian and Ross
Kinniard “described butts in various colors, shapes and sizes.”
212
It’s Perfectly
Normal: Changing Bodies, Growing Up, Sex and Sexual Health by Robie Harris is
a sex-education book intended for readers ages ten and up, that provides “an
unassuming, coherent, comprehensive explanation of sex in all its complicated
glory” and does include explicit drawings.
213
The book has been routinely
challenged because it portrays “nudity, sex education, [and] sexually explicit
[material] unsuited to [the] age group.”
214
Critics of the book also allege that it
promotes “abortion” and “homosexuality” in a way contradictory to some
“religious viewpoint[s].”
215
c. Queer Stories
Stories meant to affirm and support queer individuals suffer heavily under
book bans, and challenges are mainly couched in religious objections. One such
title at issue in Llano County is The Fight for LGBTQ+ Rights by Devlin Smith.
216
The book, geared toward grades seven to twelve,
217
describes the fight for
LGBTQ+ civil rights in the United States, including the legal affirmation of
marriage equality, passing of anti-discrimination laws, and repeal of anti-
LGBTQ+ military practices.
218
Also routinely challenged is the memoir Being
Jazz: My Life as a (Transgender) Teen, including in Llano County.
219
The book
features the story of fourteen-year-old trans teen Jazz Jennings, and the
accompanying children’s picture book I Am Jazz has also come under fire for
LGBTQIA+ content, for a transgender protagonist, and for confronting a topic
that is “sensitive, controversial, and politically charged.”
220
211
Little v. Llano County, No. 1:22-CV-424-RP, 2023 WL 2731089, at *2 (W.D. Tex. Mar. 30,
2023), appeal filed, No. 23-50224 (5th Cir. Apr. 4, 2023), argued, No. 23-50224 (5th Cir.
June 7, 2023); Complaint, supra note 25, ¶¶ 44, 46, 49; Hayasaki, supra note 64.
212
Maria Cramer & Isabella Grullón Paz, An Educator Read ‘I Need a New Butt!’ to Children.
Then He Was Fired, N.Y. TIMES (Mar. 11, 2022), https://perma.cc/V7SE-TRRB.
213
Kitty Flynn, Happy Anniversary: It’s Perfectly Normal, HORN BOOK (Oct. 24, 2019),
https://perma.cc/BVL6-KACF.
214
AM. LIBR. ASS’N, supra note 73.
215
Id.
216
DEVLIN SMITH, THE FIGHT FOR LGBTQ+ RIGHTS (2020); see Hayasaki, supra note 64 (noting
Smith’s book was on the “Krause list”).
217
The Fight for LGBTQ+ Rights, BOOKSOURCE, https://perma.cc/KS4B-SQQ4.
218
See generally SMITH, supra note 216.
219
Complaint, supra note 25, ¶¶ 67, 70.
220
AM. LIBR. ASS’N, supra note 73.
163 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
d. Violence Against Marginalized Groups
Finally, officials routinely ban books depicting the stories of or violence
against marginalized groups. For example, a library in Nampa, Idaho banned
The Kite Runner by Khaled Hosseini, a “critically acclaimed, multigenerational
novel,” likely “because it includes sexual violence and was thought to lead to
terrorism and promote Islam [and homosexuality].”
221
Officials likely similarly
banned The Handmaid’s Tale by Margaret Atwood because it contained
profanity, “vulgarity and sexual overtones”
222
and The Absolutely True Diary of
a Part-Time Indian by Sherman Alexie because it contained “sexual references
and use of a derogatory term” as well as “profanity, violence, gambling, and
underage drinking, and [an objectionable] religious viewpoint.”
223
Critical race
theorists are frequent targets.
224
The list from Representative Krause included
Between the World and Me by Ta-Nehisi Coates,
225
a National Book Award
winner and Pulitzer Prize finalist that critiques the United States’ racist
history.
226
Similarly, The New Jim Crow: Mass Incarceration in the Age of
Colorblindness by Michelle Alexander was on the “Krause list” and inquires as
to whether “the U.S. criminal justice is some kind of tool of racial control”
operating behind an official policy of colorblindness as it explores the continued
violence the United States justice system exhibits towards Black people in
particular in contemporary society.
227
221
Id. (internal quotations omitted); see Hayasaki, supra note 64.
222
AM. LIBR. ASS’N, supra note 73; see Hayasaki, supra note 64.
223
AM. LIBR. ASS’N, supra note 73; see Hayasaki, supra note 64.
224
See Shearer, supra note 3, at 26.
225
Hayasaki, supra note 64.
226
Ta-Nehisi Coates’ website describes Between the World and Me. Ta-Nehisi Coates,
Between the World and Me, https://perma.cc/3SDF-NGHK (“In a profound work that pivots
from the biggest questions about American history and ideals to the most intimate concerns
of a father for his son, Ta-Nehisi Coates offers a powerful new framework for understanding
our nation’s history and current crisis. Americans have built an empire on the idea of “race,”
a falsehood that damages us all but falls most heavily on the bodies of black women and
men—bodies exploited through slavery and segregation, and, today, threatened, locked up,
and murdered out of all proportion. What is it like to inhabit a black body and find a way to
live within it? And how can we all honestly reckon with this fraught history and free ourselves
from its burden?”).
227
Hayasaki, supra note 64; MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE
AGE OF COLORBLINDNESS 227 (10th Anniversary ed. 2020).
Fall 2023 BOOK BANNING GOES DIGITAL 164
3. The Interplay of Obscenity, Viewpoint-Discrimination, and the
Targeted Works
Courts focus on viewpoint neutrality in evaluating public and school library
book bans,
228
and viewpoint-based restrictions “‘are prohibited,’ seemingly as
a per se matter.”
229
Despite that, the Miller v. California test and obscenity (and
variations on obscenity like “vulgarity” or “pornographic material”) frequently
make appearances when state officials try to justify book bans.
230
Indeed, one
only need to examine the Little v. Llano County book bans to spot the kind of
language at issue in Miller.
231
Llano County officials removed books because
“because they believed these books were obscene and promoted ‘grooming’
behavior” or because they contained nudity and “pornographic filth.”
232
Relying
heavily on words that call to mind the Miller factors allows state officials to
make the argument that, as these works are somehow “obscene,” they are
unprotected by the First Amendment.
233
Yet, commentors note that such
obscenity-related criticisms are often accompanied by explicit calls to quiet
marginalized stories.
234
If state officials are merely using obscenity to obfuscate
viewpoint-based discrimination, then they are violating the First Amendment
by preventing access to these kinds of stories.
Further supporting the theory that these obscenity claims are insincere is
the fact that the works most frequently at issue are not obscene. Notably, none
of the categories of books discussed above attempt to elicit a sexual reaction
from the audience.
235
Nor were any of the targeted books, including those
228
See discussion about viewpoint neutrality infra Section II.B.1.
229
NetChoice, LLC v. Att’y Gen. of Fla., 34 F.4th 1196, 1224 (11th Cir. 2022) (quoting Minn.
Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018)), cert. denied, 144 S.Ct. 69 (2023), cert.
granted in part sub nom., Moody v. NetChoice, LLC, No. 22-277, 2023 WL 6319654 (Sept. 29,
2023).
230
Miller v. California, 413 U.S. 15, 24 (1973).
231
Little v. Llano County, No. 1:22-CV-424-RP, 2023 WL 2731089 (W.D. Tex. Mar. 30, 2023),
appeal filed, No. 23-50224 (5th Cir. Apr. 4, 2023), argued, No. 23-50224 (5th Cir. June 7,
2023).
232
Id. at *2.
233
Miller, 413 U.S. at 23–24 (holding that obscenity is not protected by the First
Amendment).
234
Natanson, supra note 206 (“A stated wish to shield children from sexual content is the
main factor animating attempts to remove LGBTQ books . . . . The second most common
reason cited for pulling LGBTQ texts was an explicit desire to prevent children from reading
about lesbian, gay, bisexual, transgender, nonbinary and queer lives.”).
235
Mishkin v. New York, 383 U.S. 502, 508–09 (1966) (finding obscene material where the
165 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
depicting some form of nudity, written to appeal to the intended group’s
“prurient interest in sex.”
236
For example, while It’s Perfectly Normal contains
images and descriptions of what sexual intercourse is and may look like, it does
not pander to the prurient interest of the young teens it attempts to educate.
237
Instead, it addresses only their interest in what sex is. It is more comparable to
the example posited in Miller: “medical books for the education of physicians
and related personnel necessarily use graphic illustrations and descriptions of
human anatomy.”
238
Additionally, those that contain some sexual material still provide “serious
literary, artistic, political, or scientific value.”
239
More aptly put, material is
obscene only when it is “utterly without redeeming social value.”
240
This is not
the case with a great number of the books at issue. Rather, the literary
community holds them in high esteem. For example, The Handmaid’s Tale was
shortlisted for the Booker Prize in 1986.
241
The Kite Runner was listed on The
New York Times bestseller list for two years.
242
Between the World and Me hit
the top of The New York Times bestseller list, was named to the Ten Best Books
of the Year list, and received accreditation from publications ranging from The
Washington Post to People and Entertainment Weekly.
243
These contested
books have the literary merit to receive accreditation and awards from
prestigious literary institutions and widely read magazines—more than enough
to survive Miller.
244
However, and most importantly, a great number of these books are banned
for reasons that fail to create even a whiff of obscenity because they involve
none of the elements required to satisfy the Miller test. Books discussing anti-
“Appellant instructed his authors and artists to prepare the books expressly to induce their
purchase by persons who would probably be sexually stimulated by them”).
236
Hamling v. United States, 418 U.S. 87, 89–90 (1974) (“[E]vidence of pandering can be
relevant in determining obscenity . . . .”).
237
See Flynn, supra note 213.
238
Miller, 413 U.S. at 26.
239
Id. at 24.
240
Hamling, 418 U.S. at 99.
241
The Handmaid’s Tale, BOOKER PRIZES, https://perma.cc/AQU6-63JZ.
242
NYPL Staff, Read It, See It: ‘The Kite Runner’ on Broadway, N.Y. PUB. LIBR. (June 29, 2022),
https://perma.cc/A73P-T2AP.
243
Coates, supra note 226.
244
C.f. Little v. Llano County, No. 1:22-CV-424-RP, 2023 WL 2731089, at *9 (W.D. Tex.
Mar. 30, 2023) (“[T]he evidence shows Defendants targeted and removed books, including
well-regarded, prize-winning books, based on complaints that the books were
inappropriate.”), appeal filed, No. 23-50224 (5th Cir. Apr. 4, 2023), argued, No. 23-50224
(5th Cir. June 7, 2023).
Fall 2023 BOOK BANNING GOES DIGITAL 166
Black violence, promoting queer stories, and talking about basic bodily
functions are not, nor have they ever been, obscene.
245
Without valid obscenity
claims, the state officials’ bans here likely rise to the point of viewpoint-based
discrimination, actions of the “the most contemptuous, democracy-
threatening” form.
246
Merely cloaking viewpoint discrimination in obscenity
claims cannot cure it.
B. E-Book Bans in Public Libraries Are Neither Reasonable Nor
Viewpoint Neutral
Claiming that books are “obscene” or harmful to minors is not a sufficient
justification for the kinds of bans at the center of this issue because they are
not viewpoint-neutral. When restricting speech in a limited public forum, the
government’s restriction must be reasonable and viewpoint-neutral.
247
While
much of the jurisprudence and scholarship surrounding the issue of restricting
speech in libraries has been with regard to expressive conduct, rather than pure
speech, “speech and expressive-association rights are closely linked.”
248
As
such, the Supreme Court precedent from that line of cases is instructive here.
1. Reasonableness and the Viewpoint-Neutrality Inquiry
Any assessment of the restriction of speech in a public library happens in
two parts. First, the Court will inquire into the reasonableness of the
restriction.
249
Reasonableness is a very low bar—much like rational basis
review, courts will consider most state restrictions in a limited public forum to
be reasonable. A state’s restriction “need not be the most reasonable or the
only reasonable limitation.”
250
Nor does it need to “anticipate and preemptively
close off every opportunity for avoidance or manipulation.”
251
However, and
245
See discussion about contested works and their inability to satisfy the Miller test supra
Section II.A.3; see also Miller v. California, 413 U.S. 15, 24 (1973) (requiring the prurient
interest and some sexual conduct).
246
Douglas, supra note 38, at 727.
247
See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the L. v. Martinez,
561 U.S. 661, 669 (2010).
248
Id. at 680 (citing Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984)).
249
Id. at 685.
250
Id. at 692 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 808
(1985)).
251
Id. at 693.
167 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
most important in the case of book bans, states may not restrict speech where
“its distinction is not reasonable in light of the purpose served by the forum.”
252
While a limited public forum offers states leeway in restrictions of speech, the
state cannot unreasonably restrict speech related to the purpose of the
forum.
253
Because reasonableness is a low bar, it is unlikely that a court would find
any book ban to be unreasonable. The widely accepted purpose of a library is
to provide access to information.
254
Libraries provide myriad opportunities to
access information, ranging from engaging with various cultures and differing
viewpoints to conducting professional and recreational research.
255
Indeed,
“the search for relevant information and its subsequent use in productive
activity may be an integral characteristic of the construction of contemporary
public culture in the emergent twenty-first century.”
256
The public library is “a
key site of both cultural consumption and production and a facilitator of civil
society in a way that other public places are not.”
257
A restriction of speech in a limited public forum may be unreasonable when
considering the forum’s purpose.
258
When considering the accepted purpose of
the public library, suspending patrons’ access to thousands of titles is
unreasonable to some degree. Banning an e-book service would certainly be an
action directly adverse to the core tenet of a library. However, even though
suspending access to tens of thousands of books to prevent patrons from
accessing a handful of potentially harmful books is not the most reasonable
solution to the alleged problem, a state’s restriction need not be the most
reasonable option available.
259
While there are any number of better
252
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (emphasis
added) (internal quotations omitted) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund,
Inc., 473 U.S. 788, 804–06 (1985)).
253
Christian Legal Soc’y, 561 U.S. at 685 (“Once it has opened a limited [public] forum . . .the
State must respect the lawful boundaries it has itself set. . . . The State may not exclude
speech where its distinction is not reasonable in light of the purpose served by the
forum . . . .” (alteration in original) (quoting Rosenberger, 515 U.S. at 829)).
254
Public Libraries Support Personal Productivity and Cultural Engagement, AM. LIBR. ASS’N
(Feb. 28, 2012), https://perma.cc/R4HF-JLR6.
255
Id.
256
Id.
257
Id.
258
Christian Legal Soc’y, 561 U.S. at 685.
259
Id. at 692.
Fall 2023 BOOK BANNING GOES DIGITAL 168
solutions,
260
a patron challenging the ban on reasonableness grounds would
likely fail.
The second step is inquiring about the government’s viewpoint
neutrality.
261
“When the government targets . . . particular views taken by
speakers on a subject, the violation of the First Amendment is all the more
blatant” than if the government discriminated solely on the basis of content.
262
A challenger alleging viewpoint discrimination must thus show the government
is “regulating speech when the specific motivating ideology or the opinion or
perspective of the speaker is the rationale for the restriction.”
263
The First
Amendment prohibits viewpoint discrimination “even when the limited public
forum is one of its own creation.”
264
Viewpoint discrimination offends an almost
unanimously understood tenet of the First Amendment: the government
cannot regulate private citizens’ viewpoints.
265
The First Amendment “flatly
prohibits the government from engaging in viewpoint discrimination, even
within classes of speech that could otherwise be completely proscribed.”
266
Importantly, a government discriminates on the basis of viewpoint not only
when it “totally forbids the expression of a disfavored viewpoint,” but also
when “the private viewpoint is partially stifled.”
267
Additionally, the “exclusion
of several views on that problem is just as offensive to the First Amendment as
exclusion of only one.”
268
States may never “restrict speech or association
simply because it finds the views expressed by any group to be abhorrent.”
269
While the government may not single out a viewpoint when regulating
within a limited public forum, the restriction mechanism is important. State
action that has a disparate impact on a certain viewpoint, but does not “target
[speech] on the basis of its expressive content,” does not constitute viewpoint
discrimination.
270
For example, choosing to withhold subsidies to certain groups
260
See discussion about solutions infra Sections II.B.2, II.C.2.
261
Christian Legal Soc’y, 561 U.S. at 694.
262
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (citing R.A.V. v.
City of St. Paul, 505 U.S. 377, 391 (1992)).
263
Id. (citing Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 46 (1983)).
264
Id. (emphasis added).
265
Blocher, supra note 176, at 702.
266
Id. (emphasis added).
267
Id. at 705.
268
Rosenberger, 515 U.S. at 831.
269
Healy v. James, 408 U.S. 169, 187–88 (1972).
270
Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the L. v. Martinez,
561 U.S. 661, 696 (2010) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 390 (1992)).
169 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
unless they comply with the restrictions attached to funding that places “only
indirect pressure” on the viewpoints of said group is not viewpoint
discrimination.
271
The Supreme Court in Christian Legal Society Chapter of the
University of California, Hastings College of the Law v. Martinez noted that a
state “wielding the stick of prohibition” rather than “dangling the carrot of
subsidy” is more likely to be engaging in viewpoint discrimination.
272
In other
words, where the state actively prohibits, rather than incentivizes the exclusion
of, certain viewpoints it finds abhorrent or otherwise objectionable, the state
more clearly engages in viewpoint discrimination.
Because restrictions need only be reasonable and viewpoint neutral, relying
on language in Miller v. California and other content-based cases to justify
suspending e-book services merely cloaks the actual issue.
273
The main example
of a public library, rather than a school library, suspending an e-book service, is
Little v. Llano County and Representative Matthew Krause’s list of 850 allegedly
dangerous books.
274
In the letter prompting Llano County library officials to
suspend patrons’ access to OverDrive, Krause considered books that contained
any of the following information to be dangerous and patrons should not have
access:
human sexuality, sexually transmitted diseases, or human
immunodeficiency virus (HIV) or acquired immune deficiency
syndrome (AIDS), sexually explicit images, graphic presentations of
sexual behavior that is in violation of the law, or contain material that
might make students feel discomfort, guilt, anguish, or any other form
of psychological distress because of their race or sex or convey that a
student, by virtue of their race or sex, is inherently racist, sexist, or
oppressive, whether consciously or unconsciously.
275
271
Id. at 682.
272
Id. at 683.
273
Miller v. California, 413 U.S. 15 (1973).
274
Little v. Llano County, No. 1:22-CV-424-RP, 2023 WL 2731089 (W.D. Tex. Mar. 30, 2023),
appeal filed, No. 23-50224 (5th Cir. Apr. 4, 2023), argued, No. 23-50224 (5th Cir. June 7,
2023); Danika Ellis, All 850 Books Texas Lawmaker Matt Krause Wants to Ban: An Analysis,
BOOKRIOT (Nov. 5, 2021), https://perma.cc/KN6M-TYRY.
275
Letter from Matt Krause, Chairman of the Tex. House Comm. on Gen. Investigating, to Lily
Laux, Deputy Comm’r of Sch. Programs, Tex. Educ. Agency, and School Superintendents
(Oct. 25, 2021) (on file with author); see also Complaint, supra note 25, ¶ 58.
Fall 2023 BOOK BANNING GOES DIGITAL 170
Nearly fourteen percent of the titles listed referenced trans people, and over
half of the books referenced the LGBTQ+ community in some way.
276
Numerous
titles featured people of color or racial issues.
277
Finally, the list targeted books
covering reproductive rights and “[a]t least [eleven] of the books focus on the
landmark Roe v. Wade ruling.”
278
Many popular books featuring violence,
including The Hunger Games by Suzanne Collins featuring violence against
children, are not on the list.
279
Consider the kinds of topics Representative Krause has singled out: the
LGBTQ+ community, racism, critical race theory, reproductive rights, and sex
and gender education, positivity, and equality. These are topics at the core of
political, religious, and social debates, and they are topics for protection or
attack by almost any candidate for political office. EveryLibrary Executive
Director John Chrastka has noted that “[i]f somebody with an anti-gay, anti-
trans agenda wants to censor, the first thing you have to be able to do is point
to a law that says, well, issues of sexuality are off-limits for children.”
280
Richard
Corcoran, the Florida education commissioner, said it was “important to ‘police’
teachers to make sure they are not indoctrinating students with a liberal
agenda,” including firing a teacher with Black Lives Matter flags and
decorations.
281
Given the rhetoric of some fellow conservatives, as well as the
piecemeal and targeted nature of his list, Representative Krause’s list and Llano
County’s subsequent e-book ban cannot be seen as anything other than “totally
forbid[ding] the expression of a disfavored viewpoint.”
282
Indeed,
Representative Krause admitted in 2021 that he had not read any of the books
on his list.
283
Suspending e-book services to prevent patrons from accessing
those books, regardless of age or maturity, amounts to intentionally excluding
276
Ellis, supra note 274 (finding 13.9% of titles on Rep. Krause’s list reference trans people in
some capacity).
277
Hannah Getahun, Meet Matt Krause, the Man Who Critics Say Helped Make Texas a
National Leader in Book Bans, BUS. INSIDER (Sept. 18, 2022, 6:19 AM PDT),
https://perma.cc/YW7J-VTAE.
278
Chappell, supra note 69; see also Ellis, supra note 274.
279
Ellis, supra note 274.
280
Natanson, supra note 72.
281
Laura Meckler & Hannah Natanson, New Critical Race Theory Laws Have Teachers Scared,
Confused, and Self-Censoring, WASH. POST (Feb. 14, 2022, 6:00 AM EST),
https://perma.cc/PU56-D8TZ.
282
Blocher, supra note 176, at 705.
283
Getahun, supra note 277 (positing that Rep. Krause had compiled his list by making key-
word searches, rather than based on intimate knowledge of the selected works).
171 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
heavily politicized topics that a sub-group of conservatives find abhorrent—
something the Supreme Court has routinely prohibited.
284
Llano County
violated its patrons’ First Amendment right, even as a limited public forum,
because the decision to suspend access to OverDrive was fundamentally
viewpoint-based. A decision cannot be viewpoint neutral if it is motivated by
the suppression of hotbed political topics and wholesale applies to patrons
regardless of age or maturity.
Additionally, Llano County’s suspension of OverDrive is not a neutral
restriction that happens to have a disparate impact on a certain viewpoint as
an unintended consequence. Suspending OverDrive means suspending access
to all the titles hosted on the service, not just those considered objectionable.
However, as discussed by the Court in Christian Legal Society Chapter of the
University of California, Hastings College of the Law v. Martinez, Llano County
“wield[s] the stick of prohibition” of certain viewpoints rather than incentivizes
the exclusion of certain viewpoints.
285
As with Christian Legal Society, intent is
important: a state targeting speech because of its viewpoint, regardless of the
breadth or seeming neutrality of the mechanism, is illegal.
286
Even if suspending
an e-book service suspends access to more than just one viewpoint on a
contested topic,
exclusion of several views on that problem is just as offensive to the
First Amendment as exclusion of only one. It is as objectionable to
exclude both a theistic and an atheistic perspective on the debate as it
is to exclude one, the other, or yet another political, economic, or social
viewpoint.
287
Suspending access to e-book services to target traditionally liberal ideas or
topics also suspends access to more moderate or conservative authors covering
the same topics. It prevents readers from engaging with a number of
perspectives to develop their own opinions and approaches to the world. It
chills individual thought and expression. At its core, it fundamentally
contradicts First Amendment principles.
284
See, e.g., Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the L. v.
Martinez, 561 U.S. 661, 696 (2010).
285
Id. at 683.
286
Id. at 696 (“The Law School’s policy aims at the act of rejecting would-be group members
without reference to the reasons motivating that behavior . . . .”).
287
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 831 (1995) (emphasis
added).
Fall 2023 BOOK BANNING GOES DIGITAL 172
Ultimately, suspending access to an e-book service is debatably reasonable
and definitively not viewpoint-neutral. Viewpoint discrimination is “presumed
impermissible when directed against speech otherwise within the forum's
limitations.”
288
As such, government actors violate library patrons’ First
Amendment rights to the information available on e-book services when they
restrict access to the e-book service because the decision to suspend access is
not viewpoint neutral.
2. Balancing the Protection of Minors and the Right to Information
In an ideal world, book banning would not be an issue. Legal scholars would
not need to balance an interest in restricting access to information with an
interest in protecting access to information. A public library’s decision to
continuously offer an e-book service to its patrons means that it relinquishes
the right to suspend that service when attempting to prohibit access to certain
viewpoints, even if those viewpoints may be harmful or inappropriate for
minors. However, there is understandable and legitimate concern about young
children having access to content that may be inappropriate for them. A public
library’s patrons come in all ages, and they want to manage content
appropriately for each age group. Fortunately, two solutions already exist.
First, the e-book services at issue—EBSCO, OverDrive, and Epic, for
example—all offer some form of parental control or filtering software that can
be turned on or off based on the kind of account.
289
Utah libraries employ this
kind of filtering software in their use of EBSCO, and while the filters do not get
at everything Utah conservatives challenging the service find to be
objectionable, it is a much more narrowly tailored solution than preventing
children from having access to the kinds of material that raised alarm in the first
place.
290
While filtering does not get at everything, turning on some sort of
filtering for minors who have library cards prevents them from getting at most
of the allegedly dangerous material. Such filtering protects minors from
inappropriate or mature material without allowing the libraries to engage in
rampant viewpoint discrimination or violate every patrons First Amendment
288
Id. at 830.
289
Epic Help Center, EPIC!, https://perma.cc/YM5U-Z86U; Marjorie Cortez, Board Votes to
Restore Utah Public Schools’ Access to Educational Database, KSL.COM (Oct. 23, 2018,
4:09 PM), https://perma.cc/8F34-FA88; Complaint, supra note 25, ¶ 81.
290
Cortez, supra note 289.
173 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
right to information by suspending access to an entire service to target views
with which they disagree.
Libraries could additionally contract with another service that provides
stricter or more readily available parental controls. This does not guarantee the
library total control over their patrons’ access to the e-book offerings, but
libraries must comport with the First Amendment right to information.
291
In the
same way that a library could not lock the door to a section of the library for all
patrons because one book that may be inappropriate for minors may be
shelved there, a library that has routinely relied on an e-book service and
established it as a part of the services offered to its patrons cannot suspend an
e-book service for all its patrons to prevent minors from accessing potentially
inappropriate materials.
Ultimately, suspending access to e-book services as currently attempted
violates patrons’ First Amendment right to information because it is neither
reasonable nor viewpoint neutral. Public libraries have other solutions at their
disposal to protect minors, as is their purported goal, without engaging in
flagrant viewpoint discrimination in violation of even the less restrictive limited
public forum doctrine.
C. Public Schools Have Educational Discretion, Which Expands Authority
and Further Complicates Evaluating Public Schools’ E-Book Bans
School libraries present a different analysis when considering their
relationship to the e-book services they offer and their students’ First
Amendment rights to information. The Supreme Court has historically left
public school governance and educational discretion to the states.
292
In
considering a local government’s ability to remove books from a school library,
the Board of Education, Island Trees Union Free School District No. 26 v. Pico
court established an unclear balancing test:
Our Constitution does not permit the official suppression of ideas. Thus
whether petitioners’ removal of books from their school libraries
denied respondents their First Amendment rights depends upon the
motivation behind petitioners’ actions. If petitioners intended by their
291
Stanley v. Georgia, 394 U.S. 557, 564 (1969).
292
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 863 (1982)
(“The Court has long recognized that local school boards have broad discretion in the
management of school affairs.”); see also Pierce v. Soc’y of Sisters, 268 U.S. 510, 534 (1925).
Fall 2023 BOOK BANNING GOES DIGITAL 174
removal decision to deny respondents access to ideas with which
petitioners disagreed, and if this intent was the decisive factor in
petitioners’ decision, then petitioners have exercised their discretion
in violation of the Constitution. To permit such intentions to control
official actions would be to encourage the precise sort of officially
prescribed orthodoxy [this Court] unequivocally condemned . . . .
293
A school board violates the First Amendment under Pico where it removes
a book based on the ideas expressed in the book in an attempt to cultivate a
“prescribed orthodoxy” or impose its own beliefs on its students.
294
A court
must examine the substantive evidence of intent to enforce such an orthodoxy
and the procedural evidence of the intent.
295
Justice Brennan noted in the Pico
plurality that, on the other hand, a school board preserves the right to remove
a book based on “educational suitability.”
296
As such, it is important to examine
the phenomenon of e-book banning in the context of this more deferential test.
1. Applying Pico: What Are the Results?
Applying Pico to the books at issue could come out with varied results.
Given the likelihood that these bans are motivated by a desire to prescribe a
politically conservative orthodoxy to students,
297
a court could reasonably
conclude that suspending e-book services offered by public libraries fails Pico.
For example, in Idaho, following legislators’ ban on critical race theories in
school, the Nampa school board removed twenty-four books from shelves,
including The Kite Runner, The Handmaid’s Tale, and The Absolutely True Diary
of a Part-Time Indian, which Moms for Liberty, a right-wing conservative group,
had flagged as objectionable or harmful to minors.
298
However, there are
293
Pico, 457 U.S. at 871 (footnote omitted).
294
Glenn Kubota, Comment, Public School Usage of Internet Filtering Software: Book Banning
Reincarnated?, 17 LOY. L.A. ENT. L.J. 687, 714 (1997) (quoting Pico, 457 U.S. at 871).
295
Id.
296
Pico, 457 U.S. at 871 (quoting Transcript of Oral Argument at 53, Bd. of Educ., Island Trees
Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982) (No. 80-2043)).
297
Challenges to books routinely come from conservative groups or elected officials, and
book bans are most frequently seen in hyper-conservative states. Hayasaki, supra note 64
(discussing the presence of the Proud Boys’ presence, an alt-right group, at library board
meetings and Representative Matt Krause’s book list); see also Ingram, supra note 84
(discussing that the challenge to Epic in Tennessee came from a parent who is also the
president of Parents Choice Tennessee, a conservative group).
298
Hayasaki, supra note 64.
175 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
contested books that could certainly be considered inappropriate for younger
children. An elementary school student, for example, is probably not yet old
enough to read The Handmaid’s Tale or The Kite Runner because of their
complex themes and portrayal of sexual acts or violence.
However, given the vitriol facing critical race theory and other inclusive
stances,
299
it is unlikely these bans are motivated by anything other than an
effort to force a viewpoint—something the Pico court would reject.
300
For
example, following pressure from Florida Governor Ron DeSantis, the College
Board gutted the Advanced Placement (“AP”) course in African American
Studies, stripping the AP curriculum of “many Black writers and scholars
associated with critical race theory, the queer experience and Black feminism”
and “usher[ing] out some politically fraught topics, like Black Lives Matter, from
the formal curriculum.”
301
Additionally, Governor DeSantis has taken steps to
ban literature about critical race theory
302
and diversity, equity and inclusion
programs
303
in public schools and universities. As such, it is unlikely most school
book bans have another motivation beyond pushing a specific viewpoint.
The problem or tension is that students have a right to information while
schools also have the right to educational discretion. Most of the book bans at
issue in the twenty-first century would fail Pico for pushing a political
orthodoxy. However, there are a number of issues that come about when
applying Pico. First, there is no instruction on how to make the distinction
between the ideas presented in the book—for example, its political stance—
and its content.
304
With no additional precedent from the Supreme Court on
book bans, and the fact that Pico itself offered no clearly binding rule, lower
courts do not employ the test consistently.
305
Because it provides no guidance
on the difference between viewpoint-motivated removals and content-
motivated removals, it is easy to argue that a removal is content-based.
306
299
See, e.g., Marisa Iati, What Is Critical Race Theory, and Why Do Republicans Want to Ban
It in Schools?, WASH. POST (May 29, 2021, 8:00 AM EDT), https://perma.cc/2BZF-NGBA.
300
Pico, 457 U.S. at 871.
301
Anemona Hartocollis & Eliza Fawcett, The College Board Strips Down Its A.P. Curriculum
for African American Studies, N.Y. TIMES, https://perma.cc/B9UA-ZNJ7 (Feb. 9, 2023).
302
Press Release, Ron DeSantis, Governor of Florida, Governor DeSantis Announces
Legislative Proposal to Stop W.O.K.E. Activism and Critical Race Theory in Schools and
Corporations (Dec. 15, 2021), https://perma.cc/PS2Z-4STX.
303
Anthony Izaguirre, DeSantis Pushes Ban on Diversity Programs in State Colleges, AP NEWS
(Feb. 1, 2023, 7:55 AM PDT), https://perma.cc/LP6E-DFNM.
304
Schroeder, supra note 41, at 378.
305
Id. at 382.
306
Id. at 382–83.
Fall 2023 BOOK BANNING GOES DIGITAL 176
Consider that “school boards have avoided liability by creating pretextual
justifications for their book removal decisions.”
307
Additionally, Pico is not set up to cope with the burden of analyzing the
potential removal of 17,000 books hosted by a private actor and treated as a
piece of the school’s library. Pico jurisprudence deals with a handful of
contested books whose removal would not affect thousands of other books and
would not deprive students of their First Amendment right to information.
308
But what happens if a book that could pass the Pico test gets past filtering
software? As e-book services exist now, a school could theoretically suspend
the entire e-book service and survive a First Amendment challenge as long as
their intention was not to suppress ideas expressed in the hypothetical book.
309
2. Solutions: Reconsider the Pico Test and Rework Parental Controls
The Pico opinion lacks the specificity and clarity necessary to handle the
kinds of issues presented by schools’ use of e-book services. Because schools
cannot target a single book for removal on an e-book service, any attempt to
deprive students’ access to certain materials would either have to be done
through the use of parental controls or via a blanket ban.
It is easy to conceptualize a blanket ban’s sinister results. Consider a school
district that offers an e-book service with one hundred books. Of those one
hundred books, two are legitimately inappropriate for elementary school
students to read but appropriate for middle and high school aged students. An
additional three are inappropriate for elementary and middle school students
to read, but appropriate for high school students. Following this discovery, the
school board suspends access to the entire e-book service. Under Pico, it is likely
that a court might hold that because the e-book service hosts five books
inappropriate for some of the children who have access to the service, and
because the school board’s motivation is not to remove access to books
containing ideas with which they disagree, the ban holds up. After all, there is
no inquiry into the breadth of a removal because the Pico court is concerned
with removing discrete books, rather than shelves of them. Even under a basic
hypothetical, already the deficiencies in Pico become apparent—it would be
307
Id. at 383–84.
308
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 873 (1982).
309
Id. at 871.
177 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
easy to satisfy the Pico standard and deprive the entire school district of one
hundred books because five are inappropriate for a portion of the student body.
Now factor in the argument that stories featuring marginalized voices,
critical race theory, or sex-positive rhetoric are inappropriate for some children.
Given the traction these arguments have, it is well within the realm of possibility
to target these books, and thus the entire e-book service, simply by invoking
any argument other than a dislike of the ideas or an effort to “prescribe what
shall be orthodox in politics, nationalism, religion, or other matters of
opinion.”
310
Those old enough to understand and learn from those stories lose
the chance to engage with the marketplace of ideas in a way that is challenging
and meaningful. Indeed, the entire district loses access to the entire service
because Pico does not offer a meaningful backstop against overbroad bans.
As such, Pico should be reconsidered in favor of a test that makes it much
more challenging to suspend access to entire e-book services. One scholar
proposes a test reminiscent of that announced in Tinker v. Des Moines
Independent Community School District: “the board should have to prove that
inclusion of the book would ‘materially and substantially disrupt the work and
discipline of the school’ or that the book needs to be removed for practical
reasons, such as shelf space limitations, damage, or obsolescence.”
311
A school
does not endorse a book simply by offering it without displaying it, assigning it,
or otherwise encouraging students to read it. Rather, it is encouraging the
students’ early participation in the marketplace of ideas—a major First
Amendment purpose. Student interaction with the library, and by extension,
with the e-book service, is almost entirely voluntary, and the Pico test allows
libraries to restrict students’ voluntary interaction with the library in the
student’s quest to develop their own thoughts, speech, and expression.
312
By
reconsidering Pico, a school library that found itself in the above hypothetical
would have to demonstrate that the book in question “materially and
substantially disrupt[s] the work and discipline of the school.”
313
With a
database of over 17,000 books, the likelihood of one book disrupting the school
in a way that undermines the educational goals of the institution to the extent
that a court would allow the school to suspend the e-book service is unlikely.
310
Id. at 872 (quoting W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).
311
Schroeder, supra note 41, at 387 (footnotes omitted) (quoting Tinker v. Des Moines
Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969)).
312
Schroeder, supra note 41, at 387.
313
Id. (quoting Tinker, 393 U.S. at 513).
Fall 2023 BOOK BANNING GOES DIGITAL 178
Reconsidering Pico in favor of a more objective standard would preserve
students’ right to information while acknowledging that a strict scrutiny
standard would deprive schools of their right to educational discretion.
This still begs the question: what about the books that are legitimately
inappropriate for a younger child? If it becomes much more difficult for schools
to restrict younger children’s access to potentially harmful materials, would this
not deprive schools of their right to educational discretion and put minors at
risk? E-book services have already offered to answer this question by using
parental controls. In many cases, parental controls filter out material that is
allegedly harmful to minors.
314
There are still deficiencies with parental controls
or a blanket ban on access to those under eighteen—school districts serve such
a wide age range that it is easily conceivable that an e-book service might host
a book appropriate for some, but not for others.
However, e-book services have shown a willingness to work with school
libraries to ensure the most amount of access exists for the largest number of
students. EBSCO, for example, was willing to work closely with Utah school
board officials to ensure students could not access the allegedly harmful
material that led to the service’s full suspension.
315
EBSCO’s willingness to work
with, rather than against, school libraries highlights the additional solution. E-
book services committed to providing a wide array of books to its consumers
and schools committed to protecting and educating students must work
together to develop a more nuanced system of parental control. For example,
a sliding scale under which each grade level gains slightly more access to the
service is a compromise that ensures e-book services retain contracts and
further their mission while also allowing officials to retain some control and
peace of mind.
By using a combination of the filtering software developed by e-book
services and a more objective test to determine the constitutional legitimacy of
book removals, school boards will be able to ensure they have educational
discretion and are able to protect their students from inappropriate material.
However, school boards will not be able to force a political scheme onto their
students or deprive students of access to tens of thousands of online books.
Students will likewise not have access to age-inappropriate material, but will be
able to freely educate themselves, should they choose to do so, on political
314
Complaint, supra note 25, ¶ 81.
315
Cortez, supra note 289.
179 STANFORD TECHNOLOGY LAW REVIEW Vol. 27:1
hotbed topics of which their school might not approve but about which the
student is still curious. Ultimately, the internet has evolved beyond the 1980s
Pico test. The doctrine surrounding book removals needs to develop with
technology, not fight against it. Only then can courts protect the battling
interests of schools and their students.
CONCLUSION
The explosion of the Internet has arguably rendered book banning mostly
moot. The original purpose of book banning—preventing access to
inappropriate material—has been outpaced by the Internet. Libraries seeking
to deny access to critical race theory, queer stories, and other ideas antithetical
to animus-driven viewpoints cannot suppress access to the Internet. Indeed, it
is arguable that in banning books in the digital age, state officials ensure patrons
will interact with the material.
316
The people most greatly affected by book bans
are thus people without private access to the Internet.
317
Continuing to ban
books in the digital age could disproportionately deny low-income people
access to information, which would be undesirable for any number of reasons.
Regardless, banning e-books violates the First Amendment and complicates
constitutional doctrine. Banning books in both schools and public libraries is no
longer as simple as removing a single book and surviving Pico or a
reasonableness and viewpoint-neutral inquiry. Now, libraries could ban one
book and take 16,999 other books with it. The complicated nature of the
relationship between e-book services and libraries means that suspending e-
book services opens libraries up to First Amendment liability, even though e-
book services are private actors. Whether the Supreme Court will hear a
challenge like that unfolding in Llano County or reconsider Pico remains to be
seen. However, if the Court does address access to literature and the First
Amendment more concretely, that jurisprudence will certainly be complicated
by the expansive and intangible world of e-books.
316
The “Streisand Effect” posits that if an entity attempts to restrict access to something,
people will seek out that thing out of curiosity, thus magnifying the public’s interaction with
whatever the person did not want seen and doing far more damage than if the person had
just left the thing alone. Justin Parkinson, The Perils of the Streisand Effect, BBC NEWS (July 31,
2014), https://perma.cc/BNV2-GNA4.
317
C.f. Charlie Muller & João Paulo de Vasconcelos Aguiar, What Is the Digital Divide?,
INTERNET SOC’Y (Mar. 3, 2022), https://perma.cc/MH36-Q8WP (“At a high level, the digital
divide is the gap between those with Internet access and those without it. . . . These gaps in
availability, affordability, interest, and digital literacy exist at the international level as well
as the neighborhood level.”).
