So to Speak Podcast Transcript: Book banning's trial of the century w/ Anthony Aycock

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: All right, folks, before we get started today, I wanted to remind you that the early bird pricing for FIRE's big free speech conference ends on July 4th. The conference, called Soapbox, is taking place in Philadelphia from November 4th through 6th, and will feature a who's whose list of leading thinkers on free speech issues including past So to Speak guests like Sarah Isgur, David French, Adam Thierer, Samantha Barbas, David Goldberger, Brendan O'Neill, Matt Taibbi, Nick Gillespie, Heather MacDonald, Aryeh Neier, Jacob Mchangama, Eugene Volokh, Nadine Strossen, Keith Whittington, Bob Guccione, and the list goes on.

I could read more names there, but I'm sure you're tired of hearing them. You can go to Soapbox.thefire.org to get your early bird tickets. Again, those tickets will expire on July 4th, and you can go to Soapbox.fire.org to see the full roster of attendees and speakers at the conference; and I hope to see you there.

Anthony Aycock: Some states, and I give a couple of examples in the book, are criminalizing library selection decisions. So, it's not just a matter of banning books from libraries, but you librarian, if you add book X, Y, Z to your collection, we consider that being a violation of state law and we're going to arrest you.

Nico Perrino: And you could go to jail.

Anthony Aycock: And so, there is a lot of anxiety among librarians about that, as you can imagine.

Nico Perrino: You’re listening to So to Speak: The Free Speech Podcast, brought to you by FIRE, the Foundation for Individual Rights and Expression. Welcome back to So to Speak: the Free Speech Podcast where we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. I'm your host, Nico Perrino.

Over the past five years, book bans and book challenges have really become a major flash point in American politics. School boards, parents, librarians, and lawmakers are fighting over what students should and shouldn't have access to read. Supporters of library restrictions say they are protecting children, while opponents say they are censoring ideas.

But this battle is anything but new. In the 1970s, America saw a similar surge in book challenges. One local dispute on Long Island in New York made its way to the United States Supreme Court, and became the only school library book removal case the court has ever decided. That case was Island Trees School District v. Pico and it was decided in 1982.

Today, I'm joined by Anthony Aycock, who is the Legislative Library Director at the North Carolina General Assembly, and the author of a new book called Just Plain Filthy: The Story Behind Book Banning's Trial of the Century. His book tells the story behind the Pico case, including the school board that removed the books from its libraries, the students who fought back, and the Supreme Court justices who delivered a fractured ruling that left some of the case's most important constitutional questions unresolved. Anthony, welcome onto the show.

Anthony Aycock: Thank you for having me.

Nico Perrino: So, you're a librarian. How'd that come about?

Anthony Aycock: So, a long time ago, I was a McDonald's restaurant manager, which is exactly like working in a library, except I didn't I no longer go home smelling like French fries. But anyhow, I left that career. I went to graduate school in library science. So, I was in South Carolina at the time; went to the University of South Carolina.

After I graduated, I was looking around for jobs. I interviewed for a paralegal position at a law firm in Columbia, South Carolina. Paralegals do research. I figured I'm a recent library school graduate. I can do research, but I had no background in the law. I had no training in the law. So, I did not get that position, but then, a couple of weeks later, the firm contacted me to say, “Our in-house library clerk just resigned. Would you like to be considered for that position?” I said, “Sure.”

And so, I got that position, and I've been in law libraries ever since. I moved to North Carolina, so, I've worked for law firms in North Carolina. I've worked for a corporate legal department in North Carolina. I've worked for other state agencies. I've worked for academic law libraries. I've done some work in public libraries, as well, but the majority of my career has been in law libraries.

Nico Perrino: Have you had a passion for law prior to this career in law libraries?

Anthony Aycock: No more so than the average person, I would say. I found the law interesting, but I had no particular attraction to it. And so, when I first started, of course I knew nothing about it, but I learned quickly on the job. And now, 25 years later, I do find it very fascinating, especially constitutional issues like we're discussing now.

Nico Perrino: Yeah, fascinating enough to write a book –

Anthony Aycock: That’s right.

Nico Perrino: – about both libraries and constitutional law. So, what's the inspiration for the book?

Anthony Aycock: So, I had heard of the Pico case during my library science program in passing. And then, in 2022, something reminded me that, or I realized, that year is the 40th anniversary of the Supreme Court decision from 1982. And I thought, “Well, probably many people don't know about it, so someone ought to write about it.” So, I wrote a little piece for Information Today, which is a librarian trade magazine. And then, the following year, I thought more people should know about this, as book bans over the last few years, as you know, have become... there's been an explosion of book challenges.

Nico Perrino: Yeah, I think I have a statistic that the American Library Association found that the US saw a record high 5,668 books banned in 2025.

Anthony Aycock: It's incredible.

Nico Perrino: And many state laws passed, in order to kind of regulate what books can be on shelves, in school libraries and public libraries. Moms for Liberty were very active – this is a parents’ organization – very active in pressing for some of these restrictions. So, it was a hot topic.

Anthony Aycock: And that was starting in 2022 and 2023. So, after I published my article in Information Today and book bans became more in the news, I thought more people need to read about this. So, I began looking for outlets beyond just publications of interest to librarians. So, I wrote a short piece for The Washington Post, because they had a column, a recurring feature, that focused on lesser-known episodes of history, American history.

So, I pitched it to an editor there. He liked it. So, I wrote a short piece on that. Then, I expanded it into a longer piece for the literary magazine, Missouri Review, and then I thought, “There's enough material here to be a book.” So, I found Bloomsbury, the publisher, and they accepted my proposal. And so, I wrote the book, and it came out a few weeks ago.

Nico Perrino: And now you're here with me.

Anthony Aycock: And now I'm here with you.

Nico Perrino: So, the story of the book, the story of the Pico case, really starts with an increase in library book challenges and bans in the late 1960s and 1970s. I think you have a statistic in your book that says that censorship initiatives like these increased more than 300 percent, from 1966 to 1975. Can you talk to us about what was going on in American society that would have led to challenges like these at that time?

Anthony Aycock: It was really a culmination of a number of cases, in which courts, particularly the Supreme Court, were trying to define obscenity. So, in the book, I go all the way back to James Joyce's Ulysses, which, as you know, was banned for a decade or more in the United States. And then, finally, in 1933, Random House won a case, and was able to publish it for the first time in the US. And since then, other challenges came about, like Alan Ginsberg's Howl, DH Lawrence's Lady Chatterley's Lover.

And so, there were a series of cases in which courts were grappling with exactly what is obscenity; what should be allowed; what is the relationship between obscene material and literary content of literary value. And so, the 1973 case, Miller v. California, that is still the Supreme Court's standard for defining obscenity. It hasn't changed in 50 years. And so, and in the 1970s, of course, there were social upheavals coming out of the 1960s.

Nico Perrino: Yeah, when you think of the 1960s, you think of this period of expanding freedom, flower power, the hippies, Woodstock, and so you think –

Anthony Aycock: And so, then, the ‘70s was sort of a reaction to that, because you had the rise of more conservative... like the Southern Baptist Convention.

Nico Perrino: Even in politics, Nixon, for example.

Anthony Aycock: Yes, so, what went on in Island Trees is sort of a reaction to that. You had a fairly conservative area of the country, Long Island in the 1970s. I interviewed Russell Rieger, who was one of the original plaintiffs, and he referred to it as Archie Bunker. He said he knew many people who were like Archie Bunker. But they were not bad people, just very conservative. So, the board members, the school board members of Island Trees became aware of books that sort of the conservative intelligentsia were criticizing.

Nico Perrino: Yeah, some of them went to a conference or something where there was a list.

Anthony Aycock: They went to a conference where a list was circulated about, “These are terrible books. They're...”

Nico Perrino: Poisoning the minds of children.

Anthony Aycock: “They’re poisoning the minds of children. You shouldn't have any of these books.” So, they went back to their district. They looked around in the libraries of their high school, and their junior high, and they found some of these books, and then some others they thought were improper.

Nico Perrino: And Anthony, just to be clear, no parents or teachers had complained about the books?

Anthony Aycock: No, no.

Nico Perrino: And no students, presumably?

Anthony Aycock: No, there were no complaints. It was not a reaction to any complaints. It was on their own initiative. They decided, “We don't need these books.” And some of them were sort of obscure, but one of them was Kurt Vonnegut's Slaughterhouse Five, a very famous book.

Nico Perrino: Yeah, I have the list here. Slaughterhouse Five, by Kurt Vonnegut; The Naked Ape, by Desmond Morris; Go Ask Alice, of anonymous authorship; Black Boy, by Richard Wright; you have Soul on Ice by Eldridge Cleaver; The Fixer, by Bernard Malamud. Some of these authors are going to be household names, like Best Short Stories Of Negro Writers edited by Langston Hughes.

Anthony Aycock: Yes, Langston Hughes.

Nico Perrino: People are going to be familiar with some of these names, and Kurt Vonnegut's now read as part of the curriculum in many high schools.

Anthony Aycock: That's right. So, they identified 11 books that were both in libraries and/or part of a curriculum.

Nico Perrino: That came from this other list.

Anthony Aycock: And so, they removed those books, and there was an outcry from the community. Some community members defended their actions. Some thought it was unbelievably inappropriate. So, they agreed to form a book review committee to read every book, and make a recommendation about whether it should be kept or not. The review committee recommended keeping nine of the 11, but the school board went ahead and removed all 11 anyway, despite the committee's recommendation.

Nico Perrino: Why?

Anthony Aycock: It really came down to, I think, a struggle between the board saying “We have the authority to do this, and so, we can; we're doing it because we can,” and, of course, they thought that the books were, as I titled my book, just plain filthy.

Nico Perrino: Yeah, that's a quote from one of the board members.

Anthony Aycock: That’s a quote that came out of their first press conference that they held, defending their actions. They referred to the books as anti-American, anti-Semitic, and just plain filthy.

Nico Perrino: Did they actually read the books? Some of these recent book controversies, you have people protesting a book they haven't read.

Anthony Aycock: I doubt. Some of them claimed that they read some of them, but I doubt that all the board members read all the books.

Nico Perrino: Well, one of the things about the Miller test that you had talked about earlier, the test for obscenity, is that a work needs to be taken as a whole –

Anthony Aycock: Yes.

Nico Perrino: – as opposed to just in parts. There might be parts that are just plain filthy, but if it's part of a work that has serious literary or artistic value, that can't be deemed obscene.

Anthony Aycock: Yes, that was one of the major elements of the Ulysses case from back in 1933.

Nico Perrino: That is not an easy book to read, the way.

Anthony Aycock: No, it's not, but both the trial and the appeals judges said, “Okay, well, some of the passages in this book are eyebrow raising. Some of them could be considered obscene. But the work as a whole has literary value. Therefore, it is inappropriate to ban an entire book on the basis of a handful of questionable passages.” But the Island Trees group, the Island Trees board members, seemed to be focusing on passages with profanity or passages with sexuality in books that are otherwise redeeming from a literary standpoint. So, that is what they did.

Nico Perrino: And what year is this, Anthony? What year did the book bans go into place?

Anthony Aycock: So, they went to the conference in 1975. They first banned books, I believe, in 1976. The lawsuit, so, Stephen Pico was a high school senior at –

Nico Perrino: The namesake, the named plaintiff?

Anthony Aycock: The Island Trees High School. And he recruited, basically, several other students to sue with him. And I've spoken to Stephen Pico. The others had very little involvement beyond the original lawsuit, the other students, but he is the one who... he was the named plaintiff, but he also did publicity tours. He was on The Phil Donahue Show. He was interviewed by The New York Times.

Nico Perrino: For our listeners who aren't familiar with this Phil Donahue Show, this was a big show –

Anthony Aycock: Yes.

Nico Perrino: – with millions of viewers. It was a daytime talk show, I believe, where he'd bring in guests, often people from different sides of the political or ideological spectrum. And he'd have those guests not only debate with each other, but also the audience.

Anthony Aycock: That's right, that's right. So, he did interviews like that, and he's become a real free speech and right to read champion. So, the lawsuit was filed January 4th, I believe, 1977. All the plaintiffs were at the press conference. Kurt Vonnegut was at the press conference. Imagine how cool it would be to sit beside Kurt Vonnegut at the press conference. Vonnegut was an old hand at being banned by the... Slaughterhouse Five had been burned in the past.

Nico Perrino: Why? What is it about his books in particular?

Anthony Aycock: He’s very irreverent, as you know, and irreverent about religion at times. That tended to be what was objected to in him, not really profanity or sexuality with him, but just religious irreverence, I believe. And so, as the case proceeded at all three levels, trial level, intermediate court of appeals, and then the Supreme Court, the school board really hunkered down into this stance of, “Well, we have the authority. Here's what New York statutes say. We have the authority to control the curriculum of our schools.”

They also made the argument, “Books are available elsewhere. You can go to the bookstore and buy this book. You can borrow it from a friend. It doesn't have to be available in the libraries.” But as you know, that doesn't always work. There really are people who don't have access to a good bookstore, or can't afford a book in a bookstore. That's the purpose of public libraries. The purpose of a public library, or in this case, a school library, is to make materials available free of charge, so that no one has to worry about coming up –

Nico Perrino: Whether they can afford it.

Anthony Aycock: Whether they can afford it, or whether it's available. The whole idea is that it's supposed to be available. But the board members did suggest that some of their objections were political, race-related, or religion-related, or just not wanting to espouse a more liberal worldview.

Nico Perrino: Okay, so, paint a picture for me of this part of Long Island. You've already said it's kind of got an Archie Bunker feel to it. It's a suburb of New York City, essentially. Long Island, for our listeners who aren't familiar, is off to the east of New York City, off to the east of Queens, northeast of Brooklyn.

Anthony Aycock: And it was a growing area then. Earlier in the 20th century, it had been... I guess, right around the middle of the 20th century, it sort of morphed into a bedroom community of New York City. So, a lot more people flocked there; so, in the 1950s, 1940s, 1950s, 1960s, it grew a lot. But in general, it was more conservative than we think of New York as being now.

Nico Perrino: Well, the board conducted some surveys of what the community thought of these book bans, and a majority of them supported it, at least according to this, right? This survey.

Anthony Aycock: Yeah, a lot of people did. I would say at least half, or [inaudible -- crosstalk] [00:19:19].

Nico Perrino: Yeah, I don't have this precise statistic in front of me, but I think like 56 percent or somewhere around there supported it.

Anthony Aycock: Yes.

Nico Perrino: There was also a considerable number who opposed.

Anthony Aycock: But it had not begun with an outcry or protest from anyone in the public. So, that's like saying now, with certain issues now, some people will say they support it in theory, or they agree with it in theory; but some of the actions that are taken go too far. We see that now.

Nico Perrino: Yeah, yeah. And none of this is to say, of course, that the majority gets a vote in your constitutional rights. The Bill of Rights is a document that's supposed to put these rights outside of democratic majorities. These are rights that are inalienable, natural rights, as our founders would have described them.

And so, when we're talking about the constitutional arguments in this case that Stephen Pico and his fellow plaintiffs are making, that needs to be front and center. But there is a serious argument, if we're taking the other side here, that libraries make decisions about what books go in, so, why can't they make decisions about what books come out?

Anthony Aycock: Yes, and some of the justices did – and even at earlier levels of the litigation – some judges zeroed in on that idea, trying to make a distinction between not acquiring a book, and getting rid of a book that's already acquired.

Nico Perrino: Let's talk about that very quickly. You're a librarian. What is the process for librarians determining what books go into a collection?

Anthony Aycock: So, you mentioned that I work for a state legislature. So, sometimes legislators write books. Our collection philosophy would be, regardless of whether they're Republican or Democrat, regardless of their politics, we would have a copy of every book written by a legislator. That would be part of our collection philosophy.

Public libraries have a similar philosophy, in that they are interested in books that anybody is going to want to read. Even very conservative books, there's an audience out there for them. Very liberal books, there's an audience out there for them. But think about a university library, an academic library. Their philosophy is to support their curriculum, and a high school library would be the same. Their collection supports their curriculum. So, there would be less of an emphasis on recreational reading, and more of an emphasis on curriculum support. So, every library has its own philosophy.

Nico Perrino: So, if I'm looking at the arguments that the school board in Pico are making, they say, “The library is part of the curriculum. One of the things that we consider as part of our curriculum is age appropriateness, and we just don't think these books are age appropriate,” although they it seems like they go a little bit further than that, and go into the realm of politics, which is of course going to influence the justices’ decision in the Pico case. But is there any problem with that argument, assuming it's not tainted with that political veneer, that age appropriateness needs to be considered?

Anthony Aycock: It does need to be considered. Age appropriateness also has to do with the academic quality of a book. So, you wouldn't have scholarly journals in a high school library, because that does not support a high school curriculum. You would not have children's books in an academic library, except perhaps as part of some kind of specialty collection, perhaps, used by education majors. Also, you were asking about collection criteria. So, that's selecting books.

Nico Perrino: So, is there a standard practice industry norm, like list of guidelines that librarians should abide in this process?

Anthony Aycock: In my book, I discuss... the acronym's called MUSTY. So, but –

Nico Perrino: Makes you think of a musty book.

Anthony Aycock: Yes, but it has to do with appropriateness of content, but also condition of the book. Has to do with the age of a book. It has to do with whether ideas have been superseded.

Nico Perrino: Shelf space, presumably.

Anthony Aycock: Yes, shelf space is a big one. So, no library has unlimited space. And that may seem less relevant now, in the era of so many electronic materials being offered by libraries.

Nico Perrino: But even then, if we're talking about current book challenges, some of them involve not connecting to the interlibrary loan system, where even if you don't have your book on your shelves, typically, historically, you could go to the interlibrary loan system, and your library will help facilitate the loan of a book from another library, so that you can check it out at your library.

Anthony Aycock: Yes, yes, yes. So –

Nico Perrino: Llano County, I think, dealt with that issue. You talk about that case.

Anthony Aycock: Yes. So, as a librarian, I've discarded many books that were falling apart, or... a 50-year-old book on literature might still be useful. A 50-year-old book on tax law is less useful. Some subject areas progress more quickly. A 50-year-old medical textbook would be less useful than 50-year-old philosophy book. So, those are all factors, and in my book, I discuss both left-wing and right-wing censorship.

Nico Perrino: And can censorship happen on the way in, too, to a library collection, where you have librarians who, because of their politics, for example, say they're not going to carry a certain book or don't carry some book, subtly don't carry some book without saying they're not carrying it, because of their politics? Do we need to be on the watch out for that, too?

Anthony Aycock: I think so, yes. Collection managers and libraries have all the authority. So, they can not select something if they wish, but I think there need to be business reasons for not selecting a book. Every library has a written collection development policy. If a book does not match that collection development policy, it's fine not to select it. But the policy should not be, “We have only liberal books in this collection.”

Nico Perrino: Sure, yeah.

Anthony Aycock: The policy should not be, “We have only books by White authors in this collection.”

Nico Perrino: So, that's on the way in.

Anthony Aycock: Yes.

Nico Perrino: Now on the way out, which is what we're talking about in the Pico case.

Anthony Aycock: Yes. So, I guess it is sort of an academic distinction, at times, between not selecting something and getting rid of it once it's there; although you can make the argument that once a book is in a collection, the patrons rely on it being there. And if it's not there, just as there should be a valid business reason for not selecting it in the first place, there should be a valid business reason for jettisoning it, which could be poor condition, as we've said; lack of space, as we've said; superseding of the ideas, as we said.

But the Justice Brennan, who wrote the majority opinion, the plurality opinion, said that it's inappropriate, or you can't do it – you can't say we want to get rid of this book because we don't like the politics.

Nico Perrino: Yeah, I think he wrote that “The discretion that libraries must have in curating their collection cannot be exercised in a narrowly partisan or political manner,” but despite that statement, as Stephen Pico says in the ruling that came down in 1982, he said, “The decision was not a sweeping condemnation of the book banning which many had hoped for. We won by the skin of our teeth.”

So, start by explaining to our listeners what a plurality versus majority decision is, and why Stephen Pico's takeaway from the case is going to be that they won by the skin of their teeth, and that it wasn't the sweeping victory that they hoped for.

Anthony Aycock: All right, so, there are nine US Supreme Court justices. And so, at least five justices have to rule in a particular way for a case to be won.

Nico Perrino: For it to be a majority opinion. Any case that is won, it can be nine to zero, eight to one, the minimum it can be is five to four. But an opinion, a judicial opinion has multiple parts. It's not a simple you win, you lose, because the Supreme Court is not just arbitrating individual cases. They are establishing law for the entire land. They are establishing legal principles and guidelines.

So, in the Pico case, the majority was five to four, which is the thinnest possible majority; but of those five, only three were willing to endorse the idea of a First Amendment right to receive information. Basically, we have a constitutional right for this book to be in the library.

Two of the five said, “Well, we think that the Island Trees’ board went too far. They didn't follow their own procedures in how they handled this case. However, we cannot endorse the idea of a constitutional right for these books to be in there,” a First Amendment right. So, only three of the five. So, on the idea of a constitutional right, there was not a majority. So, that concept –

Nico Perrino: So, you're saying that there was a majority for the due process argument, more or less, that this is a function of the state; this is a school board, a public school board that had a process by which books were determined to go into the collection and come out of the collection, and this school board did not follow that process?

Anthony Aycock: Yes.

Nico Perrino: And the implication or the suggestion here is it did not follow that process, in part, because it was exercising a narrowly partisan or political point of view?

Anthony Aycock: Yes, but two of the five would not go so far as to say, “And the reason they shouldn't have done that is because there's a constitutional right for anybody to have access to any book in a library.” So, that idea of a constitutional right is not law, as far as the Supreme Court is concerned. So, that means that future book ban cases like the Llano County case, that you mentioned –

Nico Perrino: Out of Texas.

Anthony Aycock: That means that lower-court judges are not bound by the idea that the First Amendment guarantees that a book has to be in a library. The Supreme Court, of course, every court in the country, state or federal, has to follow what the Supreme Court says.

Nico Perrino: Theoretically.

Anthony Aycock: Yes, theoretically. They're supposed to. But if the Supreme Court doesn't specifically say X, Y, Z, then lower courts don't have to abide by X, Y, Z. And so, that is the missing piece, and many people were hoping, after the Fifth Circuit Court of Appeals upheld the book removals in Llano County, many people were hoping the Supreme Court would step in and finally assert that constitutional right, but they did not.

Nico Perrino: Can you tell our listeners a little bit about that Llano County case, so they can understand how the lack of clarity that came out of the Pico decision is creating confusion at the lower courts, and allowing for these sort of book bans to proceed, absent what the Constitution may or may not say?

Anthony Aycock: Right, so, a group or a public library – so, not a school library; a public library, which in my mind is different. A public library is not supporting an educational curriculum. A public library is really recreational. It's for everybody.

Nico Perrino: Yeah, and the same sort of kind of age appropriateness considerations that you might have within a curriculum wouldn't be, too.

Anthony Aycock: That's right, because public libraries have children's collections, adult collections, other kinds of special collections. So, a public librarian in Llano County, Texas removed certain books from the library. One of them was In the Night Kitchen by Maurice Sendak, who's a classic children's author. And there were some children's books that were sort of off-color humor, but not inappropriate.

Nico Perrino: Yeah, I think I heard you on a podcast with the plaintiff in this case, and she had mentioned that she liked to joke that the case started with a book about farts.

Anthony Aycock: Yes. There was a series of best-selling books, I might add, like that. So.

Nico Perrino: Yeah, when I was a kid, I think it was the Captain Underpants series. It was very popular –

Anthony Aycock: That’s right.

Nico Perrino: – and you could get that in your library. Yeah.

Anthony Aycock: That's right. So, these books were removed. So, Leila Little was the lead plaintiff leading a group of local parents who sued. I believe they won at the district court level. So, the district court said, “Library, you need to put these books back.” And then, it was appealed to the Fifth Circuit US Court of Appeals, which covers the Texas, Louisiana area.

Nico Perrino: Multiple states.

Anthony Aycock: It's the most conservative federal circuit court in the country.

Nico Perrino: Oh, don't we know it. Here at FIRE, we have a lot of business before that court at the moment.

Anthony Aycock: Yes. So, the county's attorney introduced the idea of all these books in this library, they are the government's expression. So, the government has a right to express itself just as any person does. And I don't think that was the first iteration of that idea, but it's sort of a new idea.

Nico Perrino: Well, if you take that argument to its logical conclusion, you can have a very deeply read community that only carries books from conservative politicians –

Anthony Aycock: Yes.

Nico Perrino: – for example, and does not have any book from a left-leaning or even independent politician, because that's the expression of the government at that moment.

Anthony Aycock: That's right. That's right. Governments are more conservative or more liberal.

Nico Perrino: It’s not that sort of soaring vision that one would have of a library, that this is access to as wide of a collection as possible of human knowledge and interest.

Anthony Aycock: But the absence of any kind of First Amendment principle from Pico is what enabled the judges in the Fifth Circuit to say, “Well, we agree the public library doesn't have to have these books. There is no constitutional right for the people of Llano County to have access to these books.” The judge who wrote that opinion offered the same argument, which is, “You can buy a book at a bookstore. You can borrow it from a friend. You can go anywhere else.”

Nico Perrino: Was this Judge Duncan? Do you remember the judge?

Anthony Aycock: Yes.

Nico Perrino: I think it was Judge Duncan, for our listeners might be familiar with him. He was the judge that was shouted down when he came to give a speech at Stanford a few years back.

Anthony Aycock: Oh, right.

Nico Perrino: I don't know if you're familiar. It captured national headlines. And of course, he made the free speech argument that one invited speaker shouldn't be shouted down, particularly when they're coming to a college campus to explain at a law school their jurisprudence, or their perspective on the law.

Anthony Aycock: Yes. And so, as I said, Leila Little and the plaintiffs were hoping that the Supreme Court would step in and finally make that definitive statement. And yes, they were hoping for access to all books by anyone; but even if the Supreme Court were to say, “No, that is not a right guaranteed by the Constitution,” at least that's a definitive statement. I think what we need is a definitive statement.

But as a librarian, I of course would argue and would hope that that definitive statement would be libraries are a place for all viewpoints, the good, the bad, and the ugly, the left wing, the right wing, the farts and all. It should all be in a public library, as long as you are following your collection development philosophy. A Texas public library wouldn't have much need for books about North Carolina, for example.

So, that would be a valid exercise of discretion, if you will, or deselection; but barring that, barring those few instances, public libraries especially, with no curriculum to support, should be a place for all viewpoints, and that's what we need. Otherwise, we'll just continue to have cases like this. There's one before the 11th Circuit right now, Penguin Random House versus numerous plaintiffs and numerous defendants. That was heard at oral arguments back in April by the 11th Circuit, and there's been no ruling yet.

Nico Perrino: Yeah, well, the Supreme Court likes to take cases where there are so-called splits between different circuits. So, if the 11th Circuit comes out in a different direction, and you've got a split between the 5th Circuit and the 11th Circuit, and there are probably past cases that are coming down on different sides of this issue, that would make it more likely for the Supreme Court to take up a case, because one of the Supreme Court's guidelines is to resolve these sorts of splits.

So, that's where things stand right now, that this constitutional question, despite the Pico plurality decision, is very much up in the air, and gives at least tacit authority to some of these libraries or local municipalities to ban books for nakedly political or ideological reasons.

Anthony Aycock: Yes. So, in the absence of a definitive statement from the Supreme Court, it's still up in the air as to what the constitutionality of book bannings is.

Nico Perrino: You write in your book, which has many soaring passages in support of free speech – you write that you used to say you abhorred censorship in all situations, and you say you're more of a centrist these days. Censoring, like lying, is justifiable in some instances. I'd like to hear what some of those instances are, because I think many of the proponents of book challenges would say the same thing, that they're pro-free speech, but there are some instances where censorship is justified.

And I should preface this by saying that I meet many people in the line of my work who say they are free speech absolutists, but when push comes to shove, they often aren't, and they often support the already existing exceptions that the First Amendment has outlined through its precedent over the years; fraud, incitement to imminent lawless action, speech in a role of criminal conduct, defamation, perjury.

Things like that all involve speech, and presumably, if you're free speech absolutists, you'd say, “Well, Congress shall make no law abridging the freedom of speech.” That would mean all speech, but they'll often say that those carve-outs are sufficient. Is that where you draw the line for yourself, or there are other areas where you get more queasy than you used to?

Anthony Aycock: Well, I made my absolutist statement before I became a parent. So, it is simply a fact that 6-year-olds should not have access to read absolutely everything; but I would say that often, censorship, desires to censor, are hidden by so-called parents' rights bills that a number of states have passed, such as giving parents the authority to call the school and complain, and say they don't want their child to read certain things.

Nico Perrino: Yeah, we've seen some absurd examples of how these laws can be applied, often because they're poorly written, but in some cases because the laws are being applied in nakedly political and ideological ways. For example, in Florida, the Webster's Dictionary for Students was removed. Anne Frank's Diary, the graphic adaptation was removed in Florida. Charlotte's Web in Kansas, banned this book in Florida.

In some cases, these books are removed briefly, and returned to the collection after review. But even still, the fact that you write a law that can remove Charlotte's Web from a library in Kansas, I think, is going to strike some people as absurd. But then, you have these other books like Gender Queer, which is very much a book that's been up for contention, where you have graphic depictions of oral sex, for example, on it, and I think most parents are going to look at that...

You also have the Persepolis book, which Emily flagged for me here, which has graphic depictions of violence, someone getting flogged on the back. You might understand why some parents see a picture like that, a graphic depiction of oral sex and say, “Man, this is really in my middle school or high school library?”

Anthony Aycock: But I say the onus is on the parents to read that book, before they say, “My child should or should not have access to it.” And also, that does not give those parents the right -- it does not give the library or the school the right – to make it unavailable to everyone on the basis of what some parents think.

Nico Perrino: And so, you say they should read the book in part because of that Miller test you were talking about, that a book or a work needs to be taken as a whole.

Anthony Aycock: Yes, so, my own daughter years and years ago in late elementary school or early middle school – so, this was when the Twilight books were coming out.

Nico Perrino: Oh, yeah, those were a vampire series.

Anthony Aycock: Yes. So, the last book, Breaking Dawn where Bella and the vampire Edward get married, and they have their wedding night, and we all know what happens on wedding nights. For some reason, I don't remember the particulars, but my daughter wanted to borrow that book from her teacher. Maybe it wasn't available in the library. I don't know. She wanted to borrow it from the teacher. The teacher would not lend it to her unless I or her mother sent in a letter saying yes, it's okay for you to do that.

Well, I had been reading those books anyway, just because I was interested, and they were cultural phenomenon. I personally saw no problem with the one scene, and if you've read the book it describes almost nothing. Basically, if it were a movie, it would be lights down, lights up, and we can imagine what happened when the lights were down. But that's it.

But I didn't mind having to write that letter of permission, because I would say that's a good example of a system working, whereby I, as a parent, have the ability to say I do or don't want my child to do this, but we're not blocking it. I understand that creates administrative burdens for schools. Sometimes –

Nico Perrino: It could be quite considerable, because it asks you to forecast what parents might object to, and then to then condition access to those books on parental permission.

Anthony Aycock: It's certainly not a perfect system, but I think it's better than a blanket ban.

Nico Perrino: Removing the book. I remember a very formative experience for me in high school, and I should tell our listeners, I wasn't an A-plus student in high school. I had long hair; wore black death metal T-shirts. I was in a death metal band. I was numerous times –

Anthony Aycock: But you were one of the coolest kids in school, right?

Nico Perrino: I wish I could say that, too. I was certainly not. But I was sat down by my parents on multiple occasions. They say, “We never see you bring a book home.” I very much was the sort of student who just tried to skate by. That changed over time, because I had a teacher very much inspired me to become interested in issues of philosophy and law, and politics, and that just kind of like... get to college and get straight A's.

So, I have high regard for the impact that good teachers can have on people, as well. But prior to that transformation, one of the few books that I ever checked out of the library – it might speak to the sort of person I described myself as in those years – was Clockwork Orange.

Anthony Aycock: Oh, yeah, right.

Nico Perrino: Which is a very, very violent book. But there's one interesting thing about that book, is that if you read it, the author sort of created his own language for the characters.

Anthony Aycock: Right, sure.

Nico Perrino: And if you just start picking up the book at first, you're not understanding that language. But then, through the course of reading it, and just seeing the words in context, you start by the end of the book to have learned the language. And that taught me a lot about, 1.), that very cool and interesting literary device; but, 2.), about learning language, and that some of the best ways to learn language is just to be exposed to it, and to see it in context.

And I'm thinking to myself now, in these days, as I'm seeing books be banned, I'm like, “That's a very easy book to ban. But if it's banned, students aren't going to have that same sort of transformational learning experience that I had from just picking it up.”

Anthony Aycock: So, in my book, I write about Huckleberry Finn, which we're all familiar with. And it has had a very troubled history. It's been banned frequently. Originally, it was not banned for racist concerns, but because in the late 19th century, there was a social fear of delinquent boys, which Huckleberry Finn and Tom Sawyer are. But by the middle of the 20th century, it's been banned and challenged because of racism.

Nico Perrino: And the racial epithets, I think like 200 times.

Anthony Aycock: Yes. And so, like you were saying about Clockwork Orange, if you just look at that on a surface level, it's an easy case to make for banning it. However, read deeper. Mark Twain was very anti-racist and very anti-slavery, and that's the message of Huckleberry Finn. So, they may use racial epithets, racist epithets, but it's to ridicule that point of view.

Nico Perrino: You saw the same sort of thing. We're sitting in the Lenny Bruce podcast studio. Lenny Bruce was of course targeted and prosecuted, and in my opinion, driven to death, through these targeted prosecutions for obscenity, for using dirty words, often, and invoking dirty images, and ridiculing religion; we were talking about Kurt Vonnegut before. But often, it elided the point he was actually making in his sets. So, he would use these racial epithets not as a way to hurl them at someone and ridicule them, but to defang them.

Anthony Aycock: To defang them, yes.

Nico Perrino: Yeah, and he was Jewish himself, so, he'd use words that were pejorative against Jews as a way to take the Voldemort quality out of them; to reference Harry Potter, the idea that you can't even say this word Voldemort, because it is so power, and it has this sort of magical or mystical effect on it. It's giving the word more power than it deserves, and that's what he was saying about these racial epithets, not that he was endorsing them, so to speak.

And I think that's why, during his trials in San Francisco and elsewhere, he begged the judge to let him perform his set for the jury, so that they could understand what he meant; because, as with a lot of comedy, a lot of the meaning comes out of how it's performed. And if you just read the words on the page, often in the least charitable way possible, as a prosecutor might, you're not going to get the true meaning of it. So, that's why I think, in that Miller test, the taking of a work as a whole, and really trying to understand what it's meaning, and what this allegedly obscene passage is in service of, is so important.

Anthony Aycock: Yeah. My father's a retired Southern Baptist pastor, and he often tells a joke about a man who decides he's going to live his life according to the Bible. So, he opens the Bible at random and finds the passage in which Judas Iscariot went out and hanged himself. Then, he closes the book, the Bible, opens it up again to a random passage, and finds the words of Jesus, “Go you therefore and do likewise.” So, that's an example of the danger of a surface or a superficial –

Nico Perrino: Anyone can cherry-pick certain passages of work –

Anthony Aycock: Taking things out of context.

Nico Perrino: In sufficient length to take something out of context, and twist it to mean something that it doesn't. Now, that's not to say that some of the things that people object to are misrepresenting what they mean. In some cases, things are just plain filthy; I don't know. But that also doesn't justify banning it either, I wouldn't say.

Anthony Aycock: An example I'd give in my... I think there are... as much of a free speech proponent as I am, I think there are some ideas that are just not worthy of being repeated.

Nico Perrino: And you'd say that in general. You're not just talking about repeated by through placement in a school library collection.

Anthony Aycock: So, hardcore racist ideology, for example. So, I use the example of The Turner Diaries, which is a very racist, pro-racist book that in part inspired Timothy McVeigh for his attack in Oklahoma City. I wouldn't personally have a problem with that book not showing up in any library.

Nico Perrino: With the state censoring that book.

Anthony Aycock: Yes.

Nico Perrino: Let’s take it out of the library context. What about the state punishing someone who advocates the same sort of ideas?

Anthony Aycock: Advocating ideas generally is not against the law. Acting on it is.

Nico Perrino: Yeah, and putting the law aside, just your personal perspective.

Anthony Aycock: Yes, the marketplace of ideas, to me, has no room for a handful of ideas. There are a handful of ideas that have no place in the marketplace of ideas, in my view.

Nico Perrino: What about Hitler's Mein Kampf? Do you think that should be in collections for the historical significance? I know I'm really stress-testing it for you.

Anthony Aycock: On the one hand, it is a... not an icon, I guess, but an artifact, is the word I'm looking for, a historically significant period in world history. On the other hand, the book itself is odious. So, I don't know. That's a tough one.

Nico Perrino: I'm a big fan of Winston Churchill, and one of the things that Winston Churchill would later say about predicting everything that happened in Nazi Germany was like, “You just needed to have read Mein Kampf to understand what was going to happen.”

And so, one of the fears I have about that line of thinking, that we could or should just remove certain ideas from society, is that removing Mein Kampf from circulation in the United Kingdom or in the United States prior to World War II would have prevented Americans or British citizens from understanding the real threat that existed there. These are things that people actually believe, and are prepared to act upon.

And I think that could do a very big disservice, obviously, because there was a war that England in particular was unprepared to meet, that was motivated by those ideas. But at the same time, to your point, a lot of people were motivated by those ideas to vote Hitler into power, and to –

Anthony Aycock: If a lot of people had read Mein Kampf and said, “We need to stop this guy, and they had stopped him,” I might agree that was a worthwhile use of that book.

Nico Perrino: Well, at the same time, in Bavaria, Hitler was banned from speaking for a number of years. So, they did try to ban him. We could go deep on this, because it's an interesting stress test of free speech principles. Would you censor to prevent Nazis from coming to power? My study of the history says they tried. But one of the deficiencies in Weimar Germany was that it didn't punish political violence.

And so, you had brown shirts that were able to rampage through the streets, and terrify political opponents. And so, I think in any society, we're going to draw lines around freedom of speech. We've already talked about some of those exceptions, but you got to have speech on the one hand, and no tolerance for violence on the other hand.

Anthony Aycock: I guess maybe you said... you asked if I would be okay with state suppression of a book like The Turner Diaries. I guess not. But if individual libraries, on their own, reach the conclusion that we don't want Mein Kampf, we don't want The Turner Diaries, we don't want these terrible books, then I'm not going to be suing those libraries.

Nico Perrino: Over that one, yeah. These are difficult lines to draw. I think we see it just through our discussion right now, about the value or societal purpose of some of these works, either for historical reasons or other reasons. But by way of closing here, Anthony, I'd like to just get your perspective on how librarians are looking at this issue at the moment, how they're feeling about the rise in book bans and challenges, and the lack of clarity that they have from the Supreme Court, and other courts, of these issues. Is there a sense of anxiety amongst the librarian community at the moment?

Anthony Aycock: Yes, especially with what has happened in the last two or three years, where some states – and I give a couple of examples in the book – are criminalizing library selection decisions. So, it's not just a matter of banning books from libraries; but you, librarian, if you add book X, Y, Z, to your collection, we consider that to in violation of state law, and we're going to arrest you.

Nico Perrino: And you could go to jail.

Anthony Aycock: And so, there is a lot of anxiety among librarians about that, as you can imagine. But I think, also, librarians see the last few years as a step backward, maybe many steps backward. And so, I think a lot of them are just throwing up their hands, and saying, “We thought we had already won some of these battles, and now we're having to fight them again.”

Nico Perrino: It's funny you say that, because FIRE has historically been part of the... there's Banned Books Week, and there's a coalition in support of it; and many people on the outside always kind of thought of that idea as anachronistic, like book bans and book challenges are things we used to do, way back when. But they've had a resurgence, and Banned Books Week is now very relevant in a way it hadn't been 10 years ago.

Anthony Aycock: That's right. Ten years ago, librarians probably thought, “Well, thank goodness it's only the weirdos who are complaining about a book now,” but as you know, as we've discussed, it's suddenly become widespread over the last few years.

Nico Perrino: And somewhat silly, as well, as you also have a discourse along the side about how young people aren't reading anymore, and they're getting all their information from social media, or TikTok, or other places, or artificial intelligence. But now, the whole debate is around what they can access in this.

Anthony Aycock: And modern book bands, you held up Gender Queer. So, that LGBTQ concerns, I think it's interesting to note, were not part of the PICO era. None of the 11 books that were at issue in Island Trees v. Pico really dealt with LGBTQ concerns. But the majority of the books that are being targeted now, do deal with those issues.

Nico Perrino: It just shows you how the conversation changes, and the ideas that are verboten one day aren't going to be verboten the next. It really creates a sense of humility in oneself. The debates over religion, 200 years ago, were at the heart of it. You look at the early part of the 20th century debates over socialism, and communism, and anarchy, and these political ideas were driving a lot of the censorship. It just changes from year to year. In many ways, some of those old concerns can seem anachronistic today, even though they were really animating at the time.

Anthony Aycock: And I think religious... so, some of the some of the concerns for the Island Trees board, as we were talking about with Kurt Vonnegut, were religious concerns. That might seem a little anachronistic now, banning a book because it makes fun of God or something.

Nico Perrino: Yeah. That would also raise in addition to free speech considerations, freedom of religion, establishment clause concerns. So, well, Anthony, I appreciate you writing this book. I enjoyed it a lot. I learned not just about the Pico case, but also the broader history of book challenges throughout American and even world history, and also the various challenges that librarians face, and how you go about your job; what goes in a collection, what comes out of a collection.

So, I just want to thank you again for writing the book, and I want to urge our listeners to check it out. The book is Just Plain Filthy: The Story behind Book Banning's Trial of The Century. Anthony Aycock, thanks for joining us.

Anthony Aycock: Yes, thank you for having me. I enjoyed it.

Nico Perrino: And don't forget, listeners, to get your tickets to Soapbox by July 4th, when the early bird pricing ends. You can do so by visiting soapbox.fire.org, and I hope to see you there. I am Nico Perrino, and this podcast is recorded by a rotating roster of my FIRE colleagues, including Bruce Jones, Ronald Baez, Jackson Flegel, and Scott Rogers. The podcast is produced and edited by Emily Beeman.

To learn more about So to Speak, you can subscribe to our YouTube channel or Substack page, both of which feature video versions of this conversation. We're also on X, by searching for the handle @freespeechtalk, and you can send us feedback through social media, or by emailing us at sotospeak@fire.org. Again, that is sotospeak@fire.org.