by Patricia Holt?
A judge has given a favorable ruling in the case involving the banning of five books by Richard Brautigan by a Northern California school board — a case that tests whether a board has the authority to remove works that are not obscene once they have been placed on library shelves (Publisher's Weekly, Oct. 16, 1978?). The action has now been moved to the discovery stage, and attorneys say it may go all the way to the California Supreme Court.
The Brautigan books had been available to students of the Anderson Union High School in Shasta County since 1975 and had also been used in a developmental reading class conducted by teacher V. I. Wexner. Although the school administration had previously banned two other books — "The Exorcist" and "The Omen" — Wexner had not felt moved to act against the bannings until the Brautigan books were removed. He then joined with another teacher, students, Brautigan's publisher Seymour Lawrence, and the American Civil Liberties Union to bring suit against the school district for violating both his rights and the rights of the students to a free flow of information.
As defendants, the school district submitted a demurrer to the complaint which Judge W. H. Phelps of the California Superior Court of Shasta County overruled February 15. The judge noted that the authorities cited by the ACLU and other plaintiffs "are indeed unanimous that the students have a right to read and be exposed to controversial thought and language, a valuable right subject to First Amendment protection... Removing books already bought and paid for (sans obscenity) and placed in the library does appear to be an infringement."
According to ACLU attorney Ann Brick, "the case is significant because it comes into a new area of law." So far it does not focus on the question of obscenity but rather, as Brick told Publisher's Weekly, on "how far school boards can go in taking books off the shelves. Arguably, if these books were obscene and somehow got on the shelves, they could be removed. But in the Wexner case, the books had been in use for a substantial period of time, and it was after that period of time that the school board decided they didn't like them because of 'obscenities' and 'explicit sexual references.' If the library can be purged every time there's a change in the philosophy of the school board, that is contrary to what the First Amendment is designed to do."
In his ruling, Judge Phelps took specific note of the publisher's point of view, as it had been advanced by Seymour Lawrence: "The publisher maintains that the removing of the books from the classroom is a form of governmental censorship, and, therefore, violates the First Amendment rights pertaining to freedom of the press. It would seem to me that the right to write and publish is sine qua non to the right to read. In order to read a book it is first necessary that it be written and published."
Lawrence's participation in the case, says Brick, "is to the best of my knowledge the first time a publisher has entered a suit like this." Asked if she felt other book publishers should take like action in similar suits, Brick responded, "Absolutely. Publishers have the prestige and the fortitude to withstand criticism that is so often brought against people who bring lawsuits like this. And they have an important First Amendment right at stake — the right to publish and to make controversial books available. So if publishers refuse to accept the responsibility that goes along with that right, not only is there the risk that the right will be lost, but also it is left to a very few brave students and teachers to fight the battle."
In early March the school board, having been overruled in its demurrer, filed its answer to the ACLU complaint. "As they didn't raise any affirmative defenses," says Brick, "and simply denied all of the material allegations of the complaint, we will now proceed with discovery." Although the trial — which by all appearances the ACLU is favored to win — will probably be held in the next few months, Brick said there is "a good chance" defendants could appeal a ruling against them and take it to the state Supreme Court.
Publishers Weekly?
April 9, 1979
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