Dirty, Dangerous, and Banned Books
This is the transcript of a podcast posted on September 17, 2007.
 Hello. This podcast deals with legal issues relating to books, specifically dirty, dangerous, and banned books. The podcast was written by attorney Richard Stim, read by Cynthia Marcucci, and it’s excerpted from one of two Nolo compact discs: The Booksellers Little Legal Companion: Volumes I and II. If you’re a bookseller, and you would like to get a [complimentary] copy of these discs, go to www.Nolo.com/booksellers for instructions.
When Books get Dirty
Obscene books aren’t just those that offend us personally. Instead, obscene is a legal standard, and if a court finds a book to be obscene, it’s not protected by the first amendment. That means you can be prohibited from carrying the book in your store, or worse, prosecuted by law enforcement for doing so.
Obscenity is indecency that is calculated to promote the violation of the law. The Supreme Court established the standard for measuring whether a book is obscene in Miller v. California, 1973. No, the Miller was not Henry Miller, author of Tropic of Cancer, it was Marvin Miller, a distributor of X-rated materials. The Supreme Court reviewed the works using three criteria:
- Does the book appeal predominantly to prurient interests? When deciding whether an interest is prurient, a court measures from the standard of the typical customer in your community.
- Does the book describe sexual conduct in a patently offensive way? What’s patently offensive? It’s something that’s so distasteful as to make it unacceptable under current community morals. One thing is clear: the Supreme Court has indicated that a book does not need pictures to be patently offensive. For example, a plain-covered book made up entirely of repetitive descriptions of sexual conduct may be found obscene.
- Does the work lack serious literary, political, or scientific value? This test is based on a national threshold, as opposed to a community standard.
All three of these criteria are moving targets, and history has shown us how poorly prosecutors have aimed. How else can you explain why books by Walt Whitman, Voltaire, and Vladimir Nabokov were pulled from U.S .bookstores, or why James Joyce’s Ulysses, selected by the modern library as the best book of the twentieth century, was declared obscene and banned from the US for fifteen years?
If someone claims you’re selling obscene books, the path to the courthouse is not always certain. The complaining party must convince local law enforcement to take action against your bookstore – not always an easy task. In 2007, for example, federal and state prosecutors in Howell, Michigan refused to pursue obscenity complaints about books being offered to local high school students. The authors in question: Tony Morrison, Richard Wright, Kurt Vonnegut, and Augusten Burrows.
For more information about your state law, you can find links at the National Obscenity Law Center, an organization that fights obscenity. Their website is www.MoralityInMedia.org.
A Dangerous Book
Writer and historian Thomas Carlyle once said that the best effect of any book is that it excites the reader to self-activity. But what if that self-activity is criminal, like how to make bombs, crack cocaine, or an illegal firearm? Are you liable if someone commits a crime using a book purchased from your store? The short answer is that bookstore owners and publishers are not liable for the acts committed by customers inspired to criminal action after reading a book. So, you won’t be pursued by INTERPOL if a customer buys The Da Vinci Code from your store and then tries to steal the Mona Lisa.
A 1997 case, Rice v. Paladin Enterprises, is the exception to the rule. It involved the book Hit Man, a technical manual for independent contractors, by Rex Farrell, Paladin Press. Rex Farrell was reportedly the pseudonym for a Florida housewife whose only other book is How to Rip off a Drug Dealer. In the Paladin case, the Hit Man book was allegedly used as a how-to manual by [a] killer for hire who murdered three people: a man’s wife, his child, and a nurse.
In the first ruling of its kind, a federal court decided that the publisher had aided and abetted in the commission of the crime, noting, among other things, that the marketing copy of the book stated that Hit Man could tell you “how to do the job and get out without getting caught.” Admitting it was the rarest of cases, the court said that the first amendment would not protect the publisher.
The U.S. Supreme Court refused to hear an appeal in this case. The publisher’s insurance carrier later settled the case, paying the families of the victims several million dollars, and agreeing to destroy the 700 remaining copies of the book. However, an estimated 20,000 used copies of the book still exist, and unauthorized copies have been reproduced in e-book format online. Keep in mind that the publisher – not a bookseller – was liable for the judgment.
Still, as a bookseller, should you steer clear from selling such books? The judgment hasn’t dissuaded many independent bookstores from selling used copies of Hit Man, nor has it dissuaded the Internet’s largest book retailer from offering used copies of the book. As we prepared this segment, used copies of Hit Man were selling for approximately $50 on Amazon.
In summary, a bookseller will not be liable for the actions of readers who buy books that instruct in the commission of crimes or other illegal activities. However, whether or not you are civilly liable, books that instruct criminals may subject a bookseller to higher scrutiny from local law enforcement, an important factor in your decision to carry such material.
When Good Books Get Banned
Book banning is when a community or institution simply chooses to keep a book off its shelves, or out of its schools. In the late 1980’s, Iran’s Ayatollah Khomeini banned the sale or distribution of the book The Satanic Verses, by Salman Rushdie, and proclaimed a Fatwa requiring the author’s execution. Most U.S. bookstores, fearful that the book would incite violence, stopped carrying The Satanic Verses – but not Cody’s Bookstore, in Berkeley. In 1989, a pipe bomb exploded inside the store, and a second bomb was found and detonated by the bomb squad. Only after his bookstore employees voted on the matter did Cody’s owner Andy Ross agree to continue offering The Satanic Verses. He acknowledged his heroic staff: “You want to support free speech,” he said. “But you don’t want to be provocative to the point of putting people in harm’s way.”
When it really comes down to the nitty-gritty, it’s not always an easy choice. You might imagine that in a world of violent video games, internet porn, and XXX cable channels, book banning would be an archaic exercise, but that’s not the case. In 2006, there were 546 formally filed complaints to libraries and school boards requesting removal of books by authors ranging from Judy Blume to J.D. Salinger.
When it comes to banning books, no legal standard is required, so a local board can vote to prohibit or restrict access to a book. For example, in 1999, seniors at a Savannah high school had to get permission slips to read some of Shakespeare’s plays, because of sexual and violent content.
On rare occasions, a court may become involved in a book banning. For example, in 1987, a federal judge in Alabama banned forty-five textbooks from the state’s curriculum, claiming the books were “Godless.” The ruling was quickly reversed.
If a local school or a local library withholds a title because of controversial, racial, or religious content, and you are unsure how your bookstore should proceed, you can get more information at the American Library Association website: www.ALA.org/Bbooks, and at the American Booksellers Foundation for Free Expression: www.ABFFE.org.
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