Last summer, the Diversity, Equity, and Inclusion Committee at Parker Daniels Kibort held a Summer Banned Book Club. The Banned Book Club met in June, July, and August to discuss The Handmaid’s Tale by Margaret Atwood, Kindred by Octavia Butler, and Gender Queer: A Memoir by Maia Kobabe. The purpose was to discuss the constitutionality of the bans and the effect such bans have on Free Speech. We enjoyed these discussions immensely and are so grateful to all who participated.
As we look to DEI initiatives for 2025, we reflect on what the Summer Banned Book Club of 2024 taught us.
The Intersection Between Book Banning and the First Amendment
The First Amendment guarantees the right to freedom of expression, speech, and religion. The Supreme Court has held that artistic freedom protections are broad under the First Amendment and necessary for self-expression.
When reviewing the constitutionality of a state actor’s attempt to ban books, the Court applies either strict or intermediate scrutiny to the law, regulation, or action at issue depending on the content of the same. Content-based government action, i.e. actions taken to ban certain content, are analyzed under strict scrutiny and are presumed to be unconstitutional. To overcome this presumption, and uphold the ban, the government must demonstrate that the law, regulation, or action satisfies a compelling government interest and that the government has used the least restrictive means possible in its implementation of the law, regulation, or policy.
Content-neutral government action, i.e. actions which ban books based on something other than content but have a disproportionate impact on certain materials, are subject to intermediate scrutiny. Courts will uphold the government’s action as long as it can be shown that the action serves a substantial government interest and does not unreasonably limit alternative means of communication.
Book Banning in the United States and Minnesota
Book banning in America dates back to colonial times, where religious groups often sought to ban books based on morality objections. In the 1800s, many states outlawed books that were anti-slavery including, for example, Uncle Tom’s Cabin by Harriet Beecher Stowe.
In May 2024, the Minnesota legislature passed the Library Bill of Rights, which went into effect July 1, 2024. The new law prohibits libraries from restricting access “because of partisan or doctrinal approval.” The new law does not put any state or local agency in charge of enforcement. Rather, the statute enables “any person injured” by a library or school board decision to sue and have the decision reversed. A court may also require that the school board pay $5,000 if it is found in violation.
The Handmaid’s Tale by Margaret Atwood
Since its publication in 1985, The Handmaid’s Tale has been banned, or been called for banning, throughout the U.S. and other countries. Those seeking to ban the book have supported their requests by arguing the book is anti-Christian, contains profanity, includes sexual content, and features LGBTQIA+ characters.
The Banned Book Club discussion of The Handmaid’s Tale focused on how eliminating certain viewpoints from public discussion can work to generally oppress specific groups within society. In The Handmaid’s Tale, people of color have been eliminated from society and LGBTQIA+ and female members of society have been silenced and prevented from learning. The participants of the Banned Book Club explored whether current efforts to dismantle DEI initiatives bear any resemblance to the extreme measures taken in Gilead and examined the impact of such actions on society and the legal profession.
Kindred by Octavia Butler
Since its publication in 1979, Kindred has been banned or been called for banning in libraries and prisons across the country. As of 2019, the North Carolina Department of Public Safety banned Kindred from prisons with no reason provided. The same department also banned other books that similarly focused on racial inequality and the history of Black people in America.
The Banned Book Club discussion of Kindred focused on book bans in the context of prisons. The largest book bans in the U.S. occur in prisons. The non-profit PEN America made FOIA requests to every state and the Federal Bureau of Prisons requesting a list of all banned books. PEN America found that literature on race and civil rights are disproportionately banned in American prisons.
The U.S. Supreme Court applies a different standard of review for book bans in prisons—affording great deference to prison administrators. In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court held that regulations that infringe on an inmate’s constitutional rights are lawful so long as they are “reasonably related to legitimate penological interests.” 482 U.S. at 89. The Court reasoned that the strict scrutiny analysis applied to content-based restrictions was too “inflexible” to apply in the context of prisons and would “seriously hamper [prison officials’] ability to anticipate security problems and to adopt innovative solutions.” Id.
During the Banned Book Club’s Kindred discussion, participants examined whether and how suppressing certain ideas from consumption by inmates in American prisons may affect the proliferation of free thought or otherwise compromise a prisoner’s ability to exercise the rights available to them under the Constitution.
Gender Queer: A Memoir by Maia Kobabe
For the past three years, Gender Queer: A Memoir (“Gender Queer”) has reached the top of the American Library Association’s (“ALA”) “challenged books” list. Each year, the ALA releases the “Challenged Books” list, highlighting the books most frequently targeted for censorship. Inclusion on the list requires documented evidence of a formal, written complaint submitted to a library or school requesting the book’s removal due to its content. Many of the books on ALA’s challenged book list target books with LGBTQIA+ themes. In 2022, the New York Times reported that Gender Queer was the “most banned book in the country.” A common reason given for those who support banning Gender Queer is that it is “sexually explicit” or “pornographic.”
The Banned Book Club for Gender Queer focused on the constitutional standard of “obscenity.” Obscene speech is not protected by the First Amendment. While the definition of “obscene” has morphed over the years, the oft cited Supreme Court case defining obscenity, Miller v. California (1973), provides that when determining whether material is obscene, a trier should analyze whether (a) the average person would find that the work appeals to “prurient interest,” (b) the work describes sexual conduct in a patently offensive way,” and (c) taken as a whole, the work “lacks serious literary, artistic, political, or scientific value.” The final element of the Miller analysis is often the most difficult one for supporters of proposed bans to overcome.
Participants at the Banned Book Club discussion of Gender Queer discussed whether the content of Gender Queer could meet the definition of “obscenity” set forth in Miller and the impact bans against non-fiction books, may have on LGBTQIA+ individuals.
The 2024 Summer Banned Book Club at Parker Daniels Kibort was a thought-provoking initiative that underscored the importance of protecting free speech and examining the broader implications of book bans in our society. Through discussions of The Handmaid’s Tale, Kindred, and Gender Queer: A Memoir, participants engaged with complex issues such as censorship, constitutional rights, and societal equity. As we plan future DEI initiatives, the lessons learned from these discussions will guide our continued commitment to fostering dialogue, challenging assumptions, and advocating for the fundamental freedoms that form the cornerstone of our democracy.
Author Cody Blades is a litigation attorney at Parker Daniels Kibort, specializing in complex business disputes, employment law, and defamation cases. To learn more about our DEI initiatives or receive invitations to future DEI events, contact Parker Daniels Kibort at 612.355.4100.
