On December 8, 2023, a Massachusetts police officer entered a school with the intent to remove Maia Kobabe’s book Gender Queer: A Memoir.1Nicole Chavez, Massachusetts Police Apologize After Officer Searched a Middle School for LGBTQ Book, CNN (Dec. 21, 2023, 11:15:18 PM), https://perma.cc/4QZC-76JH. The officer arrived in plain clothes in response to a complaint that the book depicted obscene materials.2Obscenity requires an analysis of: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 24 (1973). There is no legitimate argument that Gender Queer is obscene under Miller. While the book was not located, this event was merely the latest example of attempts to censor books featuring LGBTQ material. CNN reports that in the first eight months of 2023, 47% of challenged books featured LGBTQ themes, this up from an average of 9% between 2010 and 2019.3Elizabeth Wolfe, Book Bans are Harming LGBTQ People, Advocates Say. This Online Library is Fighting Back., CNN (Dec. 16. 2023, 1:00 PM), https://perma.cc/9VQE-22ZA. Predictably, LGBTQ people have suffered from these challenges,4Id. while no one has benefited.
Of course, censorship is nothing new. The United States permits book bans under certain circumstances, most commonly in prisons and schools.5McKenna Deutsch, Burned, Banned, and Censored: The Need for an International Framework the Addresses the Right to Read, 39 Wisc. Int’l L. J. 329, 332 (2011). In the school setting, the U.S. Supreme Court has acknowledged that “the special characteristics of the school library make that environment especially appropriate for the recognition of the First Amendment rights of students.”6Bd of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 858 (1982). Books may not be removed merely because they offend school board members; however, they may be removed if shown to be “pervasively vulgar.”7Id. at 871¬72.
Censorship challenges tend to focus, understandably, on First Amendment protections. However, this approach is risky, as the controlling case limiting book censorship, Board of Educ. v. Pico8Id. at 853., is a plurality opinion. Courts can and do depart from Pico, and school boards continue to allow the blatantly partisan removal of books.
Let’s consider an alternative approach to the First Amendment based on economic analysis of law. Students and attorneys who survived Torts are likely familiar with United States v. Carroll Towing Co.9159 F.2d 169 (2d Cir. 1947). The opinion in Carroll Towing is most well-known for introducing the concept of what is often referred to as BPL, an algebraic formula for determining liability.10Id. at 173. In this formula where B = burden of preventing injury; P = the probability; and L = equals the injury the following possible outcomes exist:
Where B ≥ PL, the duty of care is met.
Where B < PL, the duty of care has not been met.
This makes sense in a torts sense (especially in determining whether a party has a duty to take safety precautions). But what about when it comes to censorship? I do not think that Carroll Towing warrants an apples-to-apples comparison with censorship, but I do think that it raises questions about who, in a censorship scenario, is the least-cost avoider.
On a fundamental level, in the circumstances regarding the censorship of books, the burden (“B” in the Carroll Towing equation) should always fall on the potential complainant. The reason for this is simple: if a book about queer subject matter offends you, don’t read it. Some might call this common sense. If all that is required of a person to avoid harm is not to read the material in which they had no interest, to begin with, the cost of B is effectively zero. There are- of course- externalities.11An externality is an indirect cost or benefit to an uninvolved third party that arises as an effect of another party’s activities. The complainant’s child, for example, might stumble across a book, which causes the child to ask questions about something they do not understand. Depending on where you stand, this may be a positive externality (because the child has gained knowledge, which is an asset) or a negative externality (because the child has gained knowledge, and now you have to explain something to them).
For a library, public, or school, there are discernable costs. First, there is the cost of removing the book. Associated costs include opportunity costs: what is the librarian choosing not to do- such as ordering new books, assisting students, placing books back in the stacks, assessing and collecting fees, etc.- while they are locating and going through the process of removing a book from circulation. And back to externalities: individuals who might have sought a book for educational- or recreational- purposes must either go elsewhere, spend more money (as opposed to none) to purchase the book, or do without the necessary information or entertainment. This approach does not take into account the cost of obtaining the book in the first place, as that is a cost that has already been accrued.
In summary, the least cost avoider will always be the potential complainant. It follows then that B should fall on the potential complainant’s shoulders. Administrative decisions- because that’s what school board decisions are- removing books because of their content ought to consider then that the burden falls on a potential reader to police the content they consume rather than to attempt to pass that responsibility on to libraries. The same analysis could apply in other situations, such as drag shows. Put more simply: if certain content offends you, don’t consume it.
