Abstract

Excerpted From: Camdyn E. Neal, Resistance Today, Resistance Tomorrow, Resistance Forever: an Examination of the Resistance to Knowledge in America, 16 Alabama Civil Rights & Civil Liberties Law Review 337 (2024-2025) (215 Footnotes) (Full Document Requested)

The definition of resistance is “the act or instance of resisting, the power or capacity to resist, the inherent ability of an organism to resist harmful influences, an opposing or impeding force, a psychological defense mechanism wherein a patient rejects, denies, or otherwise opposes the therapeutic efforts ...” Resistance has been a consistent theme throughout American History. In my view, resistance is either labeled as positive or negative depending on the viewpoint of the person who is (1) doing the resisting or (2) observing the resistance. Each resistor has varying motivations and lived experiences that informs his or her decision to resist. Similarly, an individual's reaction to someone else's resistance is based on those same factors. Historically, resistance has been an underlying contributor to the creation of policies that govern the American educational system.

Today America is experiencing an influx of legislation designed to limit the accessibility of books. Lawmakers have deemed these books harmful to children based on the viewpoint or content expressed within them. However, when analyzed in the context of the constitutional protections against viewpoint censorship, the rationalization of harmfulness lacks merit. In Texas v. Johnson, Justice Brennan stated, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The rise in state legislation on book bans not only defies that bedrock principle but responds to the current socio- political culture of hyper-polarization in a way that contributes to the history of resistance.

Book bans serve as a direct attack on freedom of thought--they actively limit the amount of information accessible to students. Decreasing the amount of literature available in public libraries, albeit only in schools or community libraires, inherently decreases the tools that students can use to learn new information that may apprise their decision to resist the status quo, contemplate various schools of thought, and engage with other people's lived experiences. In Board of Education v. Pico, the Court recognized the importance of public libraries and stated that the “access [to books in libraries] prepares students for active and effective participation in the pluralistic, often contentious society, of which they will soon be adult members.” Limiting the available resources that will fuel knowledge also inherently limits one's ability to resist. Proponents of book bans suggest that because there are enough remaining books, notwithstanding the removal of all banned books, children are not at risk of limitation. They argue that these limitations are necessary to protect children's innocence. In reality, these justifications are merely excuses that resist access to information in the modern world. It is possible that this form of knowledge--the banned books--would create inconvenient resistance to a desired status quo. Even so, these book bans are predominantly based on viewpoint and banning them is unconstitutional under the First Amendment.

The primary focus of this Note is to highlight the impact that book bans have on students' First Amendment rights and ultimately on the quality of their education. States that attempt to ban books use varying approaches, each focused on extinguishing a particular viewpoint that is expressed within the targeted books. The danger here is clear: If states continue down a path of political polarization and support book bans, children will miss the beauty in different opinions, life experiences, and political ideologies. Instead, America will become a place of a single viewpoint and rob its children of the ability to explore rhetorical devices that may lead them to question those who occupy spaces of power. Because of those limitations, America would also inhibit children's ability to resist those who usurp that same power with a spectrum of ideas.

Modern literacy laws are not against the ability to read or even directly against the right to resist. However, this Note demonstrates that the ability to determine the content that one can read is just as crucial as the ability to read itself. And while banned books will remain in circulation outside of public libraries, this Note additionally explores what it means for the state to have the power to discriminately remove books that were previously permissible? In the California v. Greenwood dissent, Justice Brennan refers to the Supreme Court as the “ultimate guarantor of liberty.” Here, the liberty of American children to freely access a diverse collection of books is at stake.

Resistance to the acquisition of knowledge is not novel. This Note posits that the justifications for modern book bans, while painted as different, use the same brush of exclusion, censorship, and oppression that were used over 150 years ago. As such, the resistance demonstrated by the American people during integration will likely recur if the Supreme Court renders a decision on book bans. Consequently, the same communities that were focal during the 1960s will likely be the same communities who suffer the most harm from book bans. Section II discusses historical resistance to acquiring knowledge in the form of Slave Codes and Black Codes. Section III details both the historical approach to book bans and their modern-day resurgence as resistance to accessible information, history, and knowledge. Section IV discusses the various constitutional implications of book bans. Section V highlights resistance to the expansion of accessible education during the Civil Rights Era. Section VI briefly argues why a determination by the Court on book bans is imminent while also warning that the Court's decision will likely be detrimental to the current structure of public-school education in America.

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Resistance in American education has always been constant. Whether it be who can read, who receives access to an education, or the materials available to facilitate that education, the resistance remains. Because reading and education are intrinsically related to the democratic process, a resolution on book bans that protects all students will likely come through state and local elections. Accordingly, the Civil Rights Era attacks on desegregation can serve as an exemplar to organizations that challenge book bans. The legal strategy used to redress varying state laws on the national scene was successful despite the resistance to the implementation of those outcomes. Advocates hoping to redress book bans must craft complaints in a way that persuade the Court to clearly define metrics for determining what is viewpoint censorship and what is a facially neutral challenge to a book. Additionally, they should address diverse subsets of book restrictions across the U.S. and advocate for clear standards to determine these distinctions, along with the appropriate remedies. In writing this Note, I reflected on Fredrick Douglass's belief that learning to read would provide freedom. Like the way that each generation will redefine what resistance looks like, it's up to each generation to determine what freedom entails. One can only hope that the current generations decide that freedom includes the ability of our public libraries to afford the choice to read or not to read.

Juris Doctor Candidate at The University of Alabama School of Law.