Libraries & First Amendment overview

Monday, February 3, 2003

The urge to regulate expression is often found in the very institutions where one might expect to find more deference to First Amendment rights and values — Congress, state legislatures, local governments, even the religious and academic communities. The unsurprising exception to this tendency among major U.S. institutions is the public library.

The library, after all, is a monument to the best impulses in the human mind and spirit. The library is where people are transformed because knowledge is treasured, where freedom of speech and conscience are respected. For those reasons and more, the library has long been a sanctuary for the First Amendment.

Among all the shapes and forms expression assumes in the technological era, books remain the library’s essential resource. To librarians, books are to be revered and protected. Librarians are moved to be even more protective of books when they see that outside the library walls, school officials cut and rip pages from texts, judges jail comic book and magazine vendors, and law enforcement authorities subpoena bookstore records.

Unfortunately, campaigns to suppress speech are neither far-removed nor abstract for the nation’s librarians. They are ever mindful of their charge to protect the material they hold in the public’s name for its benefit. As a result, libraries and librarians are frequent targets for those who sometimes
believe that speech in America is too free.

In addition, hundreds of challenges are mounted every year against books ranging from perennial favorites like Mark Twain’s The Adventures of Huckleberry Finn to contemporary bestsellers such as David Guterson’s novel Snow Falling on Cedars. Political leaders and ordinary citizens in at
least 20 states have tried to get the popular Harry Potter books removed from library shelves as well as classrooms and bookstores.

Driving force of many restrictions: the public
In the main, government restrictions on library materials are prompted by public complaints.
Government officials are ever mindful of the importance their constituents place on family values, moral sensibilities and protecting children from indecent Internet content and other materials. So, directly or indirectly, ordinary citizens are the driving force behind the challenges to unrestricted access to
Internet content in public libraries.

Often, that has meant local libraries are besieged with complaints about access to indecent material. Family-friendly organizations have often tried to mobilize their supporters in efforts to control access to certain materials available in libraries, especially the Internet.

Individuals have also taken up the fight on their own. An example of this occurred in Livermore, Calif., in 1998. A parent of a child who used the library’s Internet access to download pornographic pictures filed a lawsuit to force the library to install filtering software on computers in the library. The
state superior court dismissed the case, saying the lawsuit could be barred by Section 230 of the Telecommunications Act of 1996.

That ruling, however, came before the Children’s Internet Protection Act.

Children’s Internet Protection Act
Frequently, new federal laws place requirements on public libraries that librarians believe violate the First Amendment rights of their patrons. For example, the Children’s Internet Protection Act, passed by Congress in December 2000, requires that libraries receiving funds under any of three different federal
programs must install filters on all computers to prevent children from being exposed to indecent material.

Sen. John McCain, R-Ariz., one of the sponsors of the bill, cited the growing use of the Internet in schools and libraries and said that “our children need to be protected from the harmful material that comes with it.” In committee hearings he noted that most children’s Internet activities take place outside the home, where parents cannot monitor what children view.

“Parents have the right to feel safe,” McCain said, such that “when they send their child to school, when they drop their child off at the public library, someone is going to be looking out for their children, protecting them. That’s what this bill is all about.”

Before libraries can receive federal funds, they must have a “technology protection measure” in place that prevents access by children and adults alike to images considered obscene or child pornography and, for children, images considered “harmful to minors.”

The American Library Association went to court to challenge the requirement. In 2002, a special federal panel ruled the law was a violation of the First Amendment. On June 23, 2003, however, the Supreme Court reversed the panel’s decision, ruling 6-3 that the law should be reinstated. In United
States v. American Library Association,
the Court said that if libraries wished to offer unfiltered access to their computers, they could forgo federal funds.

On July 24, 2003, the Federal Communications Commission released its order on compliance with CIPA, which must begin on July 1, 2004, for most public libraries.

Such campaigns are not just about the Internet, either. They also are about the library’s video offerings, its magazines and journals, and the books it makes available.

The people who work in, make policy for or support the libraries usually are not well prepared to defend themselves when library holdings, in whatever media, are assailed in their communities. Invariably, the attack is swift, across-the-board, well-organized and well-financed. The proponents of restrictions tell tales of sexual horror rending the moral fabric of the community and endangering the children. By the time community leaders and library supporters muster a response, the problem is publicized, the public mind fairly well made up and the solution determined.

A lot is on the line in these local struggles. If a library wavers, folds or suffers defeat anywhere, the fallout reverberates throughout society. Political leaders are emboldened and encouraged to propose even more policies and laws limiting freedom of expression.

It is a daunting challenge for libraries. Elected officials want to be on the right side of these issues, meaning the side of values, decency and simple solutions. Community leaders are slow to get involved and quick to compromise.

Religious leaders don’t want to be seen as permitting indecent material. Their aversion to it, in turn, allows the community to avoid the larger issues behind efforts to regulate access to a wide variety of material in the library.

These campaigns are not just about sexual speech. They also address hate speech, violence, feminism, New Age religion, alternative lifestyles and other kinds of expression some find offensive or inimical to their view of the world.

And too often, the campaigns aren’t just about the library. They also are about schools, museums and other institutions. They are about who sets and controls the intellectual, cultural and moral agenda for the community.

Whether censorship or surveillance, such developments conspire to interrupt, delay or halt the libraries’ civic and intellectual duty to satisfy the constitutional right of Americans to reasonably unfettered access to a wide variety of information.

Most librarians view these assaults on their First Amendment traditions with deep concern. Anything of consequence in the care of libraries offends someone somewhere, of course. The challenge for public libraries is to find ways to remind political, educational and moral leaders that to remove or restrict
access to controversial material is to invite the ultimate suppression of all material.

Updated November 2006