First Amendment 101
What is the First Amendment? In 1791, the existing states ratified ten amendments to the U.S. Constitution. These amendments are known as The Bill of Rights. The first of these ten amendments is commonly referred to as the First Amendment. The Bill of Rights protects individual rights and limits the power of the federal government to encroach upon on these rights. Starting in the 1920s, federal courts began interpreting the Fourteenth Amendment as a basis for applying the Bill of Rights to state governments, as well.
What does the First Amendment say? “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; of abridging the freedom of speech, or of the press [emphasis added], or the right of the people to assemble, and to petition the government for a redress of grievances.”
“Believing in the power of reason as applied through public discussion, [the Framers of the U.S. Constitution] eschewed silence coerced by law…. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”
—Louis Brandeis, Justice of the U.S. Supreme Court, 1916 to 1939
What does it actually protect? The First Amendment provides extremely broad protection for speech including offensive, distasteful and controversial speech ranging from political criticism to pornography. For publishers, this allows publication of books such as “50 Shades of Grey” (author: E.L. James; publisher: Random House), which contains sexual content that some may find distasteful, or “1984” (author: George Orwell, publisher: Penguin), which includes political commentary that some may find controversial.
What is not protected? Certain very narrow categories of speech are not protected, including:
- Child pornography
- Defamation—Intentional, false statements about an individual that are publicly communicated and cause harm to the individual. When made in writing, these statements are called “libel.” When spoken, they are called “slander.”
- False advertisement
- Incitement—The speech must advocate, and be likely to produce, imminent lawless action.
- Obscenity—For material to be “obscene” it must meet all three of the following requirements: (1) appeal to “prurient’ interest in sex; (2) be patently offensive by community standards; and (3) lack literary, scientific or artistic value (very difficult to prove).
- Plagiarism and infringement of copyrighted material
- True threats—This is speech with the intent to inflict death or great bodily harm to a person with the apparent ability to carry out the threat.
Does the information have to be true? No, speech does not need to be true in order to be protected. Literary fiction, parodies and other forms of speech often include information that is not true, but these works are still protected so long as they do not constitute defamation, false advertisement, plagiarism or other narrow types of speech that are not protected.
The Freedom to Say What May Offend
“To censor: To examine books, movies, letters, etc., in order to remove things that are considered to be offensive, immoral, harmful to society, etc.”
Books and journals have an incredible power to spread knowledge. This power also makes them routine targets for censorship, which often attempts to suppress discussion of controversial topics, ideas and content.
The freedom to express one’s world view—however unpopular it may be—lies at the heart of the First Amendment, and is the foundation of a free-thinking society and a relevant publishing industry. That is why AAP stands strong against any form of censorship and fights fiercely for First Amendment protections, even if we may disagree with what’s being said or how it’s presented.
It is this willingness to defend the principles of free speech and a free press, regardless of content, that guarantees the unfettered and creative expression of new authors and artists in our country.
“Where there is no liberty for the dissident or the heretic, there is no liberty for the author or the publisher. I am sure it is not a quirk or a coincidence that, except for a different mark over the letter ‘i’ , the Latin word ‘Liber’ meant both ‘freedom’ and ‘book.’”
—Theodore H. Sorensen, Special Counsel and Chief Speechwriter to President John F. Kennedy, speaking at the AAP Annual Meeting, April 1, 1996
Famous Banned Books
The protections of speech and the press under the First Amendment have not always been as broad as they are today. Fortunately, the efforts of many courageous individuals, including publishers, expanded the scope of First Amendment free speech rights in the 20th century, giving rise to the robust protections many of us take for granted today. In particular, the following famous book ban fights were instrumental in ending official government censorship in the United States.
“Ulysses,” James Joyce—Banned by the U.S. Customs Service in 1918 for containing “obscene” material, all U.S. post offices were instructed to burn any copies of the book found in the mail. You could be arrested in the U.S. just for owning a copy of the book. Random House co-founder, Bennett Cerf, secured the right to publish the book in the U.S. from James Joyce and subsequently paid a man to smuggle a copy of “Ulysses” into the U.S. In a plan to overturn court decisions affirming the ban on “Ulysses,” Cerf arranged for the smuggler to get caught with a copy of the book into which scholarly reviews citing the literary importance of “Ulysses” had been inserted, so that all of these reviews, in addition to the text of the book itself, would become part of the official record of material confiscated. This record became the central evidence in the trial, United States v. One Book Named Ulysses. Cerf and his attorney Morris Ernst won the case, and the right to publish the book, in 1933. The ruling was upheld on appeal in 1934 and was described by Ernst as “a body-blow for the censors” in the U.S.
Lady Chatterley’s Lover,” D.H. Lawrence—This title was banned in 1929 by the U.S. Postmaster General and forbidden entry into the U.S. by the Customs Service. Grove Press, founded by Barney Rosset, published an unexpurgated version of the book (unedited and containing explicit content) in 1959 and fought for the right to publish the book in the U.S. courts. Grove Press prevailed in its argument that publication of the book was protected by the First Amendment and that the government could not prohibit its publication, importation or distribution.
“Tropic of Cancer,” Henry Miller—This novel was banned in 1934 by the U.S. by the Customs Service for containing “obscene” material. Grove Press published the book in 1961 and took its legal fight for the right to publish the book all the way to the U.S. Supreme Court. In 1964, Grove Press won its fight when the U.S. Supreme Court ruled that “Tropic of Cancer” did not contain “obscene” material.
Although the U.S. government has not officially banned the publication, sale or importation of books since these rulings, efforts to ban books from libraries, classrooms and bookstores continue unabated in communities across the United States. At least 46 of the books included on the Radcliffe Publishing Course’s “100 Best Novels of the 20th Century” have been the targets of bans or challenges in the U.S.
Since 1990, the American Library Association’s Office for Intellectual Freedom (OIF) has documented more than 20,000 attempts to ban a book. In 2013 alone, they recorded 307 challenges, including “Captain Underpants” (Dav Pilkey), “The Bluest Eye” (Toni Morrison), and “The Hunger Games” (Suzanne Collins). Objections come largely from parents, library patrons, religious groups, and others who deem a work’s content to be offensive, too explicit, culturally insensitive or age-inappropriate. The OIF estimates that for every reported challenge, four or five remain unreported.
Combatting Censorship in the US
Defending the right to write and publish works on all topics from all perspectives is integral to a free society and has been a core tenet of AAP’s mission since our founding. AAP monitors for attempts at censorship and takes action against them through the courts, partnership initiatives, public education programs, and our Freedom to Read Committee.
AAP Voted #6 of Top 40 Advocates for Free Speech
AAP was voted #6 in the “Top 40 Free Speech Defenders for 2014" by the National Coalition Against Censorship for our passion and commitment to keep the books we publish freely available to adults and young people, regardless of government threats to freedom of speech.
First Amendment Court Cases
AAP has staunchly defended fundamental First Amendment rights and protections as either plaintiff or amicus (“friend of the court”) for more than four decades. Our positions have shaped decisions around many critical free speech-related issues including satire, libel, school and library censorship, third-party liability for “harmful” speech, and reader privacy. Only by protecting these broader First Amendment rights can we ensure that authors can continue to write and publish their broadest array of creative works.
“Americans are freer to think what we will and say what we think than any other people, and freer today than in the past…. When we say today that the First Amendment guarantees our freedom, we mean not only its brief text but the vast body of law that judges have built up over the years in applying it to issues brought before them.”
—Anthony Lewis, introduction to his book “Freedom for the Thought that We Hate: A Biography of the First Amendment.” Published by Basic Books in 2007.
AAP was particularly influential in the following landmark free-speech cases:
- Virginia v. American Booksellers Association
- Island Trees Board of Education v. Pico
- Simon & Schuster Inc. v. Members of New York State Crime Victims Board
- Counts v. Cedarville School District
- American Booksellers Association v. Hudnut
- American Library Association v. Reno
- Tattered Cover v. City of Thornton
- Falwell v. Flynt, U.S. v. Stevens
In defending free expression and the freedom to read, AAP works closely with other organizations within the book community, and beyond, whose interests are allied with our own. These groups include the American Library Association and its Office for Intellectual Freedom; the American Booksellers Association and its anti-censorship arm, American Booksellers for Free Expression; PEN American Center; the Freedom to Read Foundation; Media Coalition; and the National Coalition Against Censorship. These alliances magnify the voice of the U.S. publishing industry in the ongoing fight for freedom of expression.
Public Education About Censorship
AAP produces anti-censorship educational programs for librarians, booksellers and authors, and works with groups such as the American Library Association and the American Booksellers Association to educate the public about censorship and the importance of defending against it.
Two key programs we support are:
- Banned Books Week—Banned Books Week is an annual, national celebration of the freedom to read and the value of controversial books. AAP helped found the program in 1982 to ensure the continued availability of the widest possible variety of books, journalism and reading materials, including those with contentious or unpopular views. Members engage in Banned Books Week by connecting authors of challenged books to the public through videos, commentaries and social media; producing classroom materials, teacher’s guides and school library activities about censorship and banned books; running contests and organizing community events; distributing lists of banned books to classrooms, libraries, bookstores, local markets and social media; and other means.
- Kids Right to Read project—AAP provides funding and support for the Kids Right to Read Project, an advocacy effort created in 2007 by the National Coalition Against Censorship and the American Booksellers Foundation for Free Expression. The Kids Right to Read Project promotes the freedom to read through education, advocacy and assistance to individuals in communities across the U.S. to fight attempts to remove or restrict access to books in classrooms and libraries. The goal is to ensure that young people have access to the widest range of reading materials.
Find Out More: Promoting Reading and Literacy
A deeper look at the importance of literacy and how publishers support it
AAP Freedom to Read Committee
The Freedom to Read Committee is the publishing industry’s early warning system, watchdog and advocate for free expression. The group works on behalf of AAP members to mitigate free speech-related threats to the First Amendment and to protect the free marketplace of ideas. This committee is responsible for all of AAP’s domestic anti-censorship activities, including those listed above.
Combating Censorship Overseas
Worldwide Internet access, global dissemination of information, and political and social unrest in many nations make combatting censorship beyond our borders as important as defending free expression at home.
AAP was the first major publishing organization to undertake a coordinated program specifically to defend and broaden the freedom of written communication worldwide. Through collaboration with the International Publishers Association, as well as AAP’s own International Freedom to Publish Committee, we work outside the United States to monitor human rights issues and provide moral support and practical assistance to publishers and authors who are denied basic freedoms.
Publishing Voices That Are Silenced Abroad
The First Amendment gives U.S. publishers the latitude to publish controversial books and works from foreign authors that would be censored in their home country. For example:
- Nobel laureate Miguel Asturias’ novel “The Green Pope” was banned in his native Guatemala, but published in the U.S. by Delacorte Press.
- Azar Nafisi’s bestselling memoir, “Reading Lolita in Tehran,” could not be published in Iran, but was made available to U.S. audiences by Random House.
- Nobel Laureate Boris Pasternak’s “Dr. Zhivago,” denied publication in the Soviet Union until 30 years after the author’s death, was smuggled piecemeal out of the country to publishers around the world, including Pantheon in the U.S., which first published the novel in 1958.
- “Memoirs,” the autobiography of Andre Sakharov, Soviet physicist, human rights activist and winner of the Nobel Peace Prize, was banned in Russia. The manuscript had to be smuggled out of the country into the hands of his American publisher, Knopf.
Lobbying Foreign Governments
AAP regularly sends fact-finding missions and meets with writers, publishers, human rights activists and others in countries where freedom of expression is seriously threatened. We lobby and send letters of protest to foreign officials (and often to U.S. officials) on behalf of persecuted publishers and writers regarding violations of free expression in their respective countries.
Recognizing Intrepid International Publishers
In 2002, AAP created the annual Jeri Laber International Freedom to Publish Award, to honor book publishers outside the United States who have demonstrated courage in the face of political persecution. The award carries a cash prize and is named in honor of human rights activist Jeri Laber, a founding member of the AAP International Freedom to Publish Committee and a founder of Helsinki Watch (later Human Rights Watch).
2015 Jeri Laber Award Winner
Irina Balakhonova, founder of the Samokat Publishing House and a pioneer in publishing works on gay themes in defiance of Russia’s homophobic laws and culture, was chosen as the 2015 recipient of the Jeri Laber International Freedom to Publish Award. In 2013, Samokat published “The Jester’s Cap,” a book for young adults. One of the book’s main characters is a boy who undergoes a painful separation from his teacher, a young man who must leave Russia because he is gay. Balakhonova said in an interview: “This book is about us and about our children watching us keep silent. This book says that it is impossible to divide people into ‘good’ and ‘bad’ according to their sexual orientation, that someone has to be brave enough to break this vicious cycle.”
AAP International Freedom to Publish Committee
Created in 1975, the International Freedom to Publish Committee defends and promotes the freedom of written communication worldwide. Their goal is to advance the principles of free expression and human rights as set out in Article 19 of the Universal Declaration of Human Rights:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
The committee works closely with other human rights groups devoted to this cause and is responsible for many of the overseas anti-censorship activities described above.