ALA Intellectual Freedom Policies and the First Amendment

by Bruce J. Ennis
former FTRF Counsel

From time to time, the Foundation receives questions regarding the relationship of the ALA intellectual freedom policies to the First Amendment. People often want to know whether or not ALA’s policies go beyond the First Amendment. Since the question is key to Foundation activities, we asked our counsel to comment. His response follows:

You requested our input on the following two questions: (1) whether the American Library Association (ALA) goes beyond judicially mandated First Amendment protections in its policies; and (2) if it is not a violation of First Amendment rights to control access to some materials because of a theft or vandalism problem, whether it would be a constitutional violation to control access to material because it may be inappropriate for children below a certain age. We address each issue separately.

First, the policies of the ALA are based on, and consistent with, federal and state constitutional protections as interpreted by the judiciary. Thus, ALA policies safeguard the rights of free speech of all patrons to the extent protected by either the Federal or state constitution. It is manifest that the ALA policies safeguard all speech protected by the First Amendment of the United States Constitution. Additionally, ALA policies protect all speech secured by a state constitution even if those protections are broader than those encompassed in the federal constitution. For example, the First Amendment of the federal constitution has been interpreted as providing more limited protection for commercial as opposed to political speech. If a state constitution were interpreted as providing greater protection for commercial speech in a particular jurisdiction, that speech would be encompassed in the ALA policies. A state might choose not to place any restrictions on speech. (Libraries in each state however, should check with their state statutes to see whether or what kind of obscenity or harmful to minors laws exist, and they should ask their attorneys whether such laws apply to the library). ALA policies would, therefore, direct that all expressive materials in that particular state were constitutionally protected and encompassed within the ALA policies. In the spirit of providing the greatest access to information and ideas, ALA policies were intended to encompass the broadest interpretation of protection for free speech...

Second, courts have held that children are entitled to the protections afforded by the First Amendment. Thus, courts have held that governments (including school boards) may not restrict minors’ access to materials based on the viewpoint expressed therein. Although it may not violate the First Amendment to restrict access to a special or rare collection because of concerns of theft or vandalism, it would violate the First Amendment to restrict access to expressive materials, or ban them entirely, on the basis of viewpoint-even if the restrictions were directed to minors. The Supreme Court has held that the critical inquiry centers on motivation.

In Board of Education v. Pico, 457 U.S. 853 (1982), the Supreme Court considered whether a school board’s removal of books from a school library violated the First Amendment rights of the students. A plurality held:

Id. at 871 (emphasis in text). The plurality opinion emphasized that “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’” Id. at 872 (citation omitted)...

Other courts have followed Pico’s guidance that motivation is the key question in book removal cases. Thus, lower courts have suggested that although school boards have broader discretion in questions of school curriculum—provided the decisions are reasonably related to legitimate pedagogical concerns—removal of books from the school library implicates protected First Amendment rights. It follows that government would have even less justification to remove books or restrict access to books in the public library on the ground that such books are not suitable for children.

Public libraries wisely leave the decision of reading material to the patrons—or their parents... Unless there is an applicable Harmful to Minors Act, a policy of free access (limited only by parental decisions of appropriateness for very young children) provides the greatest insulation for the library from constitutional attack for restricting access to materials protected by the First Amendment. Restrictions on access that are not based on valid administrative reasons (such as reasonable concerns about theft and vandalism) could be interpreted as restrictions based on disagreement by the government with the views expressed in the material. Thus, if government officials sought to remove or restrict access to a book on the ground that government officials opposed an idea in that book, the removal of the book clearly would violate the First Amendment...

Third, it is possible that enabling statutes governing libraries could be useful. Checking those statutes will help determine whether they define the role of the library in removing materials. For example, in Wexner v. Anderson, 209 Cal. App.3d 1438,258 Cal. Rptr. 26 (Cal. App. 3d Dist. 1989), a California appellate court held that a school district could not forbid high school students from reading books in a school library collection on the ground that materials were not “socially acceptable.” The California appellate court did not reach the constitutional issue. Instead, the appellate court held that the statutory authority provided to libraries did not permit removal of books from the school library (or presumably any public library in California) based on their content or “social acceptability.” 258 Cal. Rptr. at 36. The court held that books could only be removed if they were “not fit for service” (interpreted by the court as “worn out”) or “no longer needed by the course of study” (interpreted by the court to apply only to textbooks). 258 Cal. Rptr. at 36. The courts thus concluded that “a county librarian or superintendent of schools running a library has no authority, even with the approval of the board, to remove a book because of objectionable conduct.” Id. (emphasis added)...

Also published in the sixth edition of the
Intellectual Freedom Manual, p. 301–304.

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