by Emily Pecot
Could school librarians face jail time for the books they choose to include in your library?
The late Judith Krug, a former executive director of the American Library Association who co-founded Banned Books Week in 1982, said in interviews, “Librarians are trained as librarians; we have absolutely no training or expertise in being censors. Our jobs are to provide all the ammunition we possibly can to enable a child to expand his horizons. The right of any individual to read is an absolute necessity in a democratic society.”
According to the American Library Association, 15 states have introduced bills that would impose harsh penalties on libraries or librarians for distributing books that some think are inappropriate. Penalties in some of those proposed bills range from stiff fines to imprisonment for librarians.
Arkansas targets librarians
On March 31, 2023 Arkansas Governor Sarah Huckabee Sanders signed Act 372 into law. Under the law, librarians face up to six years in prison and a $10,000 fine if they allow minors access to reading materials deemed “harmful.”
Proponents of Act 372 argued that it was essential to prevent children from accessing “pornographic” materials, while critics contended it restricts access to diverse content, particularly materials representing the LGBTQ+ community.
In May 2023, 18 plaintiffs including libraries, bookstores, advocacy organizations, and individual patrons sued the state, claiming that the law infringes on librarians’ free speech and lacks clarity on how to comply with the law.
In July 2023, U.S. District Judge Timothy Brooks of the United States District Court for the Western District of Arkansas temporarily blocked two sections of the bill from going into effect. Judge Brooks expressed concern that the two disputed sections might be interpreted inconsistently and could impose restrictions based on content, which would violate the First Amendment’s guarantee of free expression.
Judge Brooks opened his 49-page opinion that issued the temporary injunction with a quote from Fahrenheit 451: “There is more than one way to burn a book. And the world is full of people running about with lit matches.” Fahrenheit 451 is a science fiction novel, written by Ray Bradbury, that deals with the topic of censorship and book burning.
In December 2024, Judge Brooks issued the court’s final ruling, declaring that the two sections in question were overbroad and unconstitutional.
“If the General Assembly’s purpose in passing Section 1 was to protect younger minors from accessing inappropriate sexual content in libraries and bookstores, the law will only achieve that end at the expense of everyone else’s First Amendment rights,” Judge Brooks wrote in the final opinion of the court. “The law deputizes librarians and booksellers as the agents of censorship; when motivated by the fear of jail time, it is likely they will shelve only books fit for young children and segregate or discard the rest.”
After the court issued its decision on Act 372, Arkansas Attorney General Tim Griffin announced the state would appeal. Similar laws to the one in Arkansas have been enacted in Indiana, Missouri, Oklahoma and Tennessee. It is not clear how the Arkansas decision will affect those laws. To date, no librarian has been imprisoned.
Thomas Healy, a professor at Seton Hall Law School and an expert on the First Amendment, says that whether a court would uphold criminal penalties in such a case is unclear.
“A court might think such penalties are too extreme, and there is some support in the case law for rejecting disproportionate punishment for First Amendment activities,” Professor Healy says. “Putting the legal question aside, I would argue that throwing librarians in jail for distributing books that some parents don’t like is deeply troubling and reeks of McCarthyism.”
McCarthyism refers to a time in the 1950s when many people in the U.S. were persecuted for their political views.
Soft censorship
PEN America, a nonprofit organization that advocates for literary freedom, calls what Judge Brooks described in his opinion as “soft censorship.”
“Soft censorship is when fears of real censorship may cause educators and librarians, school administrators, and school boards to self-censor or suppress speech well beyond what may have been banned or prohibited,” according to a PEN America report posted on its website. “Forms of soft censorship occur when materials are purposefully removed, limited, or never purchased at all despite it being a title that would serve the community.”
There were more than 10,000 instances of book bans across the country involving more than 4,000 unique titles in the 2023-2024 school year, according to PEN America. That is almost three times more than the number reported in the previous school year.
In addition, PEN America’s report revealed that during the 2023-2024 school year book bans were recorded in 29 states and 220 public school districts. Most banned books deal with themes of race and sexuality, specifically stories about the LGBTQ+ community.
U.S. Supreme Court provides clarity
In general, Professor Healy says, a school board can decide what books it wants school libraries to purchase and make available to students.
“School librarians who defy those decisions can certainly be disciplined or even fired; they do not have a First Amendment right to distribute whatever books they want since they work for the school district,” Professor Healy says. “However, the U.S. Supreme Court has suggested that there are limits on the ability of a school board to remove books that are already on library shelves.”
Professor Healy is referring to the only book banning case to be heard by the U.S. Supreme Court—Island Trees School District v. Pico. The Court’s ruling in the case was issued in 1982; however, the case began in 1975 when a community group in Levittown, NY wanted to remove nine books from library shelves in the Island Trees School District, including Kurt Vonnegut’s Slaughterhouse-Five and Langston Hughes’s Best Short Stories by Negro Writers. Their justification for removal was that the books were “anti-American, anti-Christian, antisemitic and just plain filthy.” The school district removed the books.
Steven Pico, a high school senior at the time, and four other students challenged the school district’s decision claiming the books were removed because “passages in the books offended [the group’s] social, political, and moral tastes and not because the books, taken as a whole, were lacking in educational value.” The U.S. Supreme Court ruled in the students’ favor, but the decision is complicated.
While the Court invalidated the school board’s decision to remove books based simply on disagreement with their content, there was no clear majority opinion in the case, Professor Healy says.
“The Court’s reasoning is not entirely clear, but four members of the Court stated that school boards cannot remove books simply because they disagree with their content,” he says. “A majority of the Court also agreed that school boards cannot remove books based on nothing more than narrow partisanship (i.e., a ban on all books written by Democrats). Beyond that, the case law gives school districts significant discretion to decide what books to distribute in their libraries.”
Professor Healy says that unless Pico is overturned, “It suggests that there are some limits on the ability of school boards to remove books that are already on library shelves.”
In an interview with the National Coalition Against Censorship more than 30 years after the Court’s decision, Steven Pico was asked whether he thought kids today felt as passionate about free speech as he did in 1975.
“I believe more young people are informed and passionate about their rights and responsibilities to stand up despite the cost today than at any previous time in American history,” Pico said. “I’m sure some of your readers may disagree with that statement. I am simply voicing one opinion, and that is the point, isn’t it? The crux is one’s freedom to voice an opinion; the crux is one’s responsibility to stand up to others who try to silence authors, to silence the dissemination of ideas, to silence librarians, to silence discussion, to silence teachers, to silence students, and to silence the constitutional right to disagree.”
Protecting librarians in the Garden State
In 2023, there were at least 14 attempts to restrict access to a total of 28 book titles in New Jersey, according to the American Library Association. In December 2024, New Jersey Governor Phil Murphy signed the Freedom to Read Act into law. Present at the bill signing was Martha Hickson, a retired librarian who has spearheaded efforts to stem book bans in New Jersey. Hickson recounted her struggles as a librarian, recalling the nasty names—pornographer and pedophile—that she was called. She also received threats, hate mail, and some demanded her arrest.
“Students feel the pain, too, when the books that describe their lived experience were called disgusting, obscene, and depraved,” Hickson noted. “Students recognized that those insults were also intended for them. All of this has created a nationwide climate of fear.”
According to Professor Healy, New Jersey’s Freedom to Read Act protects school librarians by allowing them to sue parents for harassment, defamation, and infliction of emotional distress arising out of book banning efforts.
“The law also makes clear that librarians can’t be sued or arrested for carrying out their duties to help determine what books a school library will offer,” Professor Healy says. “Finally, the law directs local school boards to create an orderly process for parents and other stakeholders to challenge book curation decisions and makes clear that schools should strive to offer books that represent diverse viewpoints.”
The New Jersey law will go into effect on December 9, 2025, exactly a year after it was signed into law. Currently, Illinois, Colorado, and Connecticut are considering laws similar to the one in New Jersey.
Discussion Questions
- How do you feel about the threats that many librarians face today? What do you think the consequence of these threats are? For librarians? For readers? Explain your answer.
- Do you feel as passionate about free speech as Steven Pico did in the 1970s? Why or why not?
- Steven Pico dedicated six years of his life to his cause when he was 16 years old. What issue do you feel passionate about that would make you dedicate a significant portion of your time to it? Explain your answer.
Glossary Words
antisemitic—being prejudice or hostile toward Jewish people.
appeal — a request that a higher court review the decision of a lower court.
injunction — an order of the court that compels someone to do something or stops them from doing something.
majority opinion — a statement written by a judge or justice that reflects the opinion reached by the majority of their colleagues.
overturned —in the law, to void a prior legal precedent.
partisanship—bias or prejudice in favor of a particular cause.
plaintiff — person or persons bringing a civil lawsuit against another person or entity.
pornographic—obscene or explicit.
This article originally appeared in the Respect winter 2025 issue.