A COMPARATIVE ANALYSIS OF BOOK BANNING AND VIDEO GAMES: SHOULD THERE BE A DIFFERENCE UNDER THE FIRST AMENDMENT?

• Author: Mareno, Marlena

INTRODUCTION

Book banning can be harmful to students' educational development by arguably inhibiting students' ability to form their own opinions and preventing intellectual and educational debates regarding difficult topics. Literature is more restricted and negatively treated under the First Amendment when compared to video games, as well as other entertainment content, which may at times be just as harmful, if not more harmful, than student literature. There is no dispute that officials have the authority to regulate school curricula; (1) however, officials should take care not to infringe on the ability to learn in a setting whose primary focus is educating students by protecting some rights and not others.

This comment analyzes the book banning process and compares the treatment of books and video games. It begins with Part I, which describes what the First Amendment specifically protects and what the Supreme Court of the United States has determined is not protected under the First Amendment. Part II continues with an overview of book banning, including which areas of literature have been most targeted, justifications that have been offered for book bans, and the steps that are taken to ban a book. The section then continues with subsection A, which includes the set standards for a book ban and describes the authority of different governmental players, as well as a discussion of Supreme Court decisions in regard to speech. Subsection B then illustrates the magnitude of this issue, describing which books have been banned, with a focused lens on The Harry Potter series. This series is utilized in Part III, which serves as an example to illustrate the discrepancy in the treatment of video games and books, even when the two have the same storyline.

Subsection A continues demonstrating the discrepancy of treatment through Supreme Court decisions. Subsection B then describes how, despite decisions released by the Supreme Court, entertainment industries like video games and movies have not gone unchecked, however, their regulations offer ratings of content that allow parents to make informed decisions for their children. Subsection C analyzes why there is this discrepancy between video games and books, specifically identifying that books are utilized in schools and video games are primarily played at home. This analysis is continued in subsection D, which identifies areas for future research regarding whether video games will become as targeted as books, as they continue to be integrated into the classroom setting. Part IV discusses the harm of book banning that is suffered to students' education and how the effects have the potential to negatively impact students' futures. Finally, in Part V, a solution is offered as a way to provide a better system that will rank books and allow parents and educators to make informed decisions for their children and students while allowing for age appropriate content to be disbursed in a manner where students have the ability to learn controversial and difficult topics in an educational, mature, and diverse environment, in order to better prepare them for their future.

1. WHAT IS THE FIRST AMENDMENT?

   The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (2) The First Amendment protects many of what have been regarded as fundamental basic liberties; (3) however, actual interpretation of the Amendment in the courts, specifically the Supreme Court of the United States, (4) has proved it difficult to determine specifically what is afforded protection and what is free to be infringed upon. (5)

   Offering guidance, the Supreme Court of the United States has interpreted the First Amendment to protect the right "[n]ot to speak" (more specifically, "the right [to choose] not to salute the flag"), (6) the right of students to protest the Vietnam War by wearing black armbands to school, (7) the right to express political messages with the use of offensive language, (8) the right to burn the American flag as a sign of protest, (9) and more. (10) However, the Supreme Court has held that the First Amendment does not protect certain speech, such as speech that could bring harm to others, such as "[s]hout[ing] 'fire' in a crowded theater," (11) "distribut[ing] obscene materials," (12) "burn[ing] draft cards," (13) printing student articles despite school administration's objections, (14) using obscene speech at school events, (15) students advocating the use of illegal drugs at school events, (16) and more. (17)

2. WHAT IS BOOK BANNING?

   Book Banning has been prevalent in American society for centuries, as the first official book to be banned was published in 1637. (18) Book banning has been described as an effort to "protect" individuals, more specifically children, from ideas and concepts that others deem to be "difficult" or inappropriate. (19) More specifically, some define book banning as "the most widespread form of censorship in the United States, with children's literature being the primary target." (20) Common reasons that have been cited for banning certain material are that "the material was considered to be 'sexually explicit[,]' the material contained 'offensive language[,]' the material[] was 'unsuited to any age group[,]'" (21) the material had the presence of violence or obscenity, (22) or the material "expresses disrespect for parents and family,... exalts evil, [and] lacks literary merit[.]" (23) Additional reasons include, "racial issues," "blasphemous dialog," "presence of witchcraft," "[unpopular] religious affiliation," and "political bias." (24) In so finding, if the challenge raised is successful, the book in question is removed from school curriculums and libraries, thereby restricting and inhibiting individuals from accessing and obtaining these materials. (25) Books can be challenged by all types of groups and individuals, including "private individuals, government officials, or organizations[,]" and is not particular to just one group or organization. (26)

   The process of banning a book begins when there is a challenge to a work, often citing one of the reasons listed above. (27) These challenges can be made directly to the institutions containing the works, which are often schools and public libraries. (28) The challenge is then delivered to the American Library Association, or the ALA, which "keeps track" of all challenges and eventual bans, if successful. (29) The specific institution that received the challenge can decide if the challenge contains merit, in which case the work in question would be banned from the curriculum or shelves of that institution, or it can find the claim without merit, in which case the challenge would fail. (30) If the challenge is successful, library patrons are then restricted in their choice of literature in that institution, as they would not be permitted access to these texts, infringing their right to choose what to learn and read. (31)

   1. Standards for a Book Ban

      Education law experts (32) have noted that "[d]ecisions regarding curriculum and instructional materials are generally made by local school boards and officials." (33) Still, federal and state governments often do play a role in these decisions. (34) Although its authority is limited in regard to curriculum, the federal government has been charged with "enforc[ing] and enhanc[ing] rights to educational opportunities and equality." (35) More importantly, "[t]his has involved enforcement of constitutional and... statutory rights to education and an adequate curriculum." (36) Certainly, the First Amendment freedom of speech and expression would be included under this umbrella of constitutional rights. (37)

      State governments have a bit more latitude in deciding the curriculum that is to be taught in public schools. (38) In many states, the state constitutions give authority to officials to regulate curriculum and "recommend, or even require, the curriculum that will be taught in public school classrooms." (39) In simpler terms, "public officials generally have the right to decide what should be taught in the effort to prepare students for citizenship." (40) And what better way to prepare students for citizenship than providing students with the opportunity to learn and discuss diverse and difficult ideas and concepts, thus allowing them to decide and form opinions of their own guided by intellectual discussion?

      Despite the somewhat limited authority of the federal and state jurisdiction, local boards' authority over public school curriculum has been well established, (41) as "[c]ourts will rarely interfere with a local board's authority to select and regulate its curriculum." (42) More specifically, "[s]chool authorities, not the courts, are charged with the responsibility of deciding what speech is appropriate in the classroom." (43) Because of this authority, it may be surprising to some that the teachers, students and even the parents have limited authority. (44) Like state officials, school personnel are charged with "decid[ing] what should be taught in the effort to prepare students for citizenship." (45) Similarly, the school board has discretion and "the authority to determine the curriculum that is most suitable for students and the teaching methods [and]... the educational tools to be used." (46) However, this again raises the question of what could be more suitable for students than providing the opportunity and educational tools to learn about diverse and difficult ideas and discuss them intellectually among each other in an educational environment?

      It has been held by the Supreme Court of the United States that students do not "shed their constitutional rights to freedom of speech or expression at the...