Federal Court Overturns Ban of 365 Days in Maiine School
Bangor, Me--In a case that has attracted national attention, a federal district court judge has issued a preliminary injunction ordering that the book 365 Days be returned to the shelves of the Woodland High School library in Baileyville, Me.
Judge Conrad K. Cyr said school officials may keep the book away from students only if their parents so request. He said the banning probably violated the students' right, under the First and 14th Amendments of the U.S. Constitution, to receive information free of "arbitrary official standards of ... taste." And he noted that the local school board failed to take into account such criteria as the age and sophistication of the students.
The school board banned the nonfiction book about the Vietnam War, written by a physician who served in a military hospital during the war, last spring on a 3-to-2 vote because it contained four-letter words.
Although the injunction is preliminary, and Judge Cyr did not rule directly on the merits of the case, his opinion delves unusually deeply into substantive issues, including broad constitutional questions about students' rights.
Judge Cyr said it is impossible to draw a line between a book's words and the ideas it conveys. He said there would be "irreparable injury to the plaintiffs" if the book is not returned immediately to the shelves, and that the board action probably violated the First and 14th Amendment rights of students. He cited criteria that school board members should use when banning a book so that the procedure will not violate the due-process rights guaranteed students under the 14th Amendment to the U.S. Constitution.
"Although its constitutional contours remain rudimentary, the right to receive information and ideas has been recognized by the U.S. Supreme Court in a variety of contexts," wrote Judge Cyr. He cited high-school libraries, described by other federal judges as "forums for silent speech" and "warehouses of ideas."
In his decision, the judge wrote: "The social value of the conceptual and emotive content of censored expression is not to be sacrificed to arbitrary official standards of vocabular tastes without constitutional recourse ... As long as words convey ideas, federal courts must remain on First Amendment alert in book-banning cases, even those ostensibly based strictly on vocabular considerations. A less vigilant rule would leave the care of the flock to the fox that is only after their feathers.
"The information and ideas in books placed in a school library by proper authority are protected speech, and the First Amendment right of students to receive that information and those ideas is entitled to constitutional protection," said Judge Cyr. "A book may not be banned from a public-school library in disregard of requirements of the Fourteenth Amendment."
Judge Cyr noted that "school-board members did not explain why they had banned the book except that three of the five members found some words 'objectionable.' They neither showed that the book was obscene nor that it could harm children."
He said, "The criteria in advance of a state action restricting student access to 'objectionable' language include: 'The age and sophistication of the students, the closeness of the relation between specific technique used and some concededly valid educational objective, and the content and manner of presentation. ... There is no evidence that the committee had accorded appropriate consideration to these criteria. ... It is difficult to understand how at least two members of the committee, who have not read the book, could have given fair consideration to its content."
Judge Cyr also concluded that plaintiff Michael Sheck's constitutional rights of free expression were violated when he was ordered by the school principal, John Morrison, not to bring the banned book to school. If he did, the principal had said, it would be confiscated as if it were a pornographic magazine. Mr. Sheck said he wanted to bring the book to school to stir up discussion of the ban.
"I think it is a historic decision. I believe it will have a tremendous influence not only in Maine but in the United States," said Ronald Coles, the lawyer for the Maine Civil Liberties Union, which represented several students and parents who complained about the book banning. He said the decision may influence the U.S. Supreme Court when it hears a similar case, Pico v. Island Trees Union Free School District, in March.
Alan Levine, the lawyer representing the plaintiffs in the Pico case, said he found it "difficult to comment about the importance" of the Baileyville decision without having read it in full.
"In general," Mr. Levine said, "the decisions of district courts aren't very influential with the [Supreme] Court. On the other hand, if it's a particularly thoughtful and well-reasoned opinion, the Court may take it into consideration."
Although "half a dozen" U.S. Circuit Courts of Appeals have ruled on book-banning cases, Mr. Levine added, both the facts of the cases and the rulings have varied widely. The Pico case, in which a group of students challenged a Long Island school board's authority to remove from the high-school library 11 books, such as Eldridge Cleaver's Soul on Ice, will be the first to reach the high court. The Island Trees school board has also tried to justify its action in part by claiming that the books contained vulgar language.
Both Messrs. Coles and Sheck expressed surprise at the scope of the decision. "It went beyond what we expected," Mr. Coles said. He added that he had anticipated a narrower and more conservative ruling that might have placed the book on a restricted shelf or required parents to provide written authorization for their children to take the book out.
"It's the best book-banning decision I've seen in years," said Mr. Coles of the decision. "The legal research was just amazing." Judge Cyr, added the lawyer, had "come up with arguments and cases I had never heard of before."
He and Francis Brown, lawyer for the defendants, said they believe Judge Cyr is the first federal judge to order a book, banned solely on the basis of the language it contained, returned to a school. Most other book-banning cases have also involved attempts to supress controversial ideas.
Keith Goldsmith, managing edi-tor at George Braziller Inc., which published the book--the first of the publisher's ever to face such a challenge--in 1971, said, "Of course, we're very pleased. Certainly we hope it will affect other cases."
Mr. Goldsmith added that although he had not read the complete text of the decision, he believed that the judge's frequent references to the First and Fourteenth Amendments were a good sign and that the decision is relevant to the Pico case.
Bruce Rich, counsel to the Freedom to Read committee of the Assocation of American Publishers, said he also was reluctant to comment until he had read the text of the decision. But based on brief excerpts that were read to him, he commented that the decision sounded "extraordinary, well beyond the merits" of the plaintiffs' briefs.
The publishers' association, he said, had harped on "procedural regularity" in banning books to prevent "arbitrary and capricious actions" by school boards. It appeared, Mr. Rich said, that the judge had addressed not only procedural issues but First Amendment issues.
Although one more hearing would normally be held in the case, Mr. Coles said he will ask Judge Cyr to forgo the hearing and issue a summary judgment within a few weeks. Mr. Brown said he will not recommend that the board appeal the case, should the judge issue a final injunction. Instead, Mr. Brown said he will probably ask Judge Cyr for more guidance concerning a procedure the school system can use to keep the book from students whose parents so request, as well as a procedure to protect the elementary-age children who school officials say have access to the library.