Libraries and the First Amendment
It has long been a core value of the ALA and of librarians to preserve, protect, and defend people’s First Amendment right to freedom of expression and the corollary right to receive and consider ideas, information, and images. Libraries are essential sources of the information that is essential to the functioning of a free and democratic society, and librarians serve as guardians of the public’s access to that information, and to ideas more generally.
The library community was tested time and again in the past year and stood up for this most basic freedom; it encountered new challenges as a range of individuals and groups sought to have books or other materials removed from public access, and as the government debated extending the life of intrusive legislation such as the USA PATRIOT Act.
Following is a sampling of the year’s First Amendment battles.
Vamos a Cuba case goes nowhere with U.S. Supreme Court
The Miami-Dade School Board School in November 2009 won its three-year battle to remove a children’s book, Vamos a Cuba, from the shelves of local school libraries on the basis that it presents an inaccurate picture of life in Cuba. The Vamos saga ended Nov. 13, when the U.S. Supreme Court declined to take up the case, letting stand a 2-1 ruling by the U.S. Court of Appeals for the Eleventh Circuit (Atlanta) that the board’s decision to remove the book was not censorship in violation of the First Amendment.
The little book that sparked such a big controversy and its English-language version, A Visit to Cuba, are part of a series of 24 books seeking to introduce readers aged four to eight to other countries.
The Atlanta-based Court of Appeals had said the school board was seeking to remove the book because it contained substantial factual inaccuracies. The dissenting judge on the appeals panel said that rather than removing the book, the correct response would be to make more books on Cuba available to students, not fewer.
The ALA’s Freedom to Read Foundation filed amicus curiae briefs in the case, which was brought by the American Civil Liberties Union.
Kentucky library addresses demands to remove graphic novel
Director Ron Critchfield and the Jessamine County (Kent.) Public Library Board resisted calls to remove four books from its collection and revise the library’s collection development policy in November 2009 following a controversy over Allan Moore’s graphic novel, The League of Extraordinary Gentlemen: Black Dossier.
Controversy about the policy arose in September, when two library circulation clerks decided together to disallow an 11-year-old from checking out Black Dossier, a book they considered obscene. One of them, Sharon Cook, had earlier filed a challenge against Black Dossier, asking that it be removed from the library. After the reconsideration committee voted to retain it in the library’s collection, Cook kept the book off the shelves by repeatedly checking it out to herself. She said she did so because she felt the graphic novel was shelved too close to the young adult fiction section, and she worried about children finding the book.
The women were both fired for actions that included checking library patron information to find out who placed a hold on the book.
Community response was swift and divided along predictable lines, and a petition soon circulated calling for the removal of Black Dossier and other works in the library’s collection on grounds that they constituted a public safety issue in that they encourage sexual predators.
At the library board’s November meeting, the board heard comments from 23 speakers but took no action. Board Chair Billie Goodwill explained the board’s position, assuring the crowd that “legal standards are the yardsticks” and that the board had not exceeded the Kentucky Revised Statutes. On Dec. 3, the library announced that it was reshelving and recataloging its graphic novel collection, moving most of them to another section of the library—but not contemplating any changes to its collection development or youth borrowing policies.
— Deborah Ann Caldwell-Stone, ALA Office for Intellectual Freedom
Wisconsin library board rejects challenge to young-adult collection
The West Bend (Wisc.) Library Board voted unanimously in June 2009 to maintain the young-adult collection at Community Memorial Library as is following a challenge to YA materials deemed sexually explicit by an area couple. The vote came after trustees heard several dozen comments for and against restricting the materials, as well as being presented with opposing petitions: 700 signatures on the petition circulated by West Bend Citizens for Safe Libraries, a group formed by the couple, and more than 1,000 on an anti-restriction petition from the newly formed West Bend Parents for Free Speech.
At the center of the storm: the library’s copy of Baby Be-Bop, by Francesca Lia Block.
Accusing the board of submitting to the will of the ALA and the ACLU, one of the complainants, Ginny Maziarka, declared, “We vehemently reject their standards and their principles.” She characterized the debate as “a propaganda battle to maintain access to inappropriate material” and cautioned that her group would let people know that the library was not a safe place unless it segregated and labeled YA titles with explicit content.
The trustees voted against “removing, relocating, labeling, or otherwise restricting access” to any titles, but still on their docket was a challenge from a member of the Christian Civil Liberties Union, who had filed a claim in April for damages he and three other plaintiffs allegedly suffered by being exposed to the book in a library display. The complainants sought the right to publicly burn or destroy the library’s copy of Baby Be-Bop and demanded $120,000 in compensatory damages ($30,000 per plaintiff).
Banned Books Week: Celebrating the freedom to read
The 28th annual Banned Books Week kicked off with the Read-Out!, held Sept. 26, 2009, in Bughouse Square, Chicago’s most celebrated outdoor free-speech center. ALA President Camila Alire and host and frequently challenged author Chris Crutcher were joined by several authors featured on the 2008 Banned and Challenged Books top 10 list: Sarah Brannen, Cecily von Ziegesar, Lauren Myracle, Stephen Chbosky, Justin Richardson, and Peter Parnell. They discussed their experiences as targets of censors and read from their banned or challenged book.
The Chicago event was hosted by the ALA’s Office for Intellectual Freedom (OIF), the McCormick Freedom Museum, and the Newberry Library and was echoed in libraries and bookstores nationwide throughout the week. Banned Books Week, the only national celebration of the freedom to read, draws attention to the issue of censorship by mounting displays of challenged books and hosting a variety of events.
The annual observance of Banned Books Week is sponsored by the ALA, the American Booksellers Association, the American Booksellers Foundation for Free Expression, the Association of American Publishers, the American Society of Journalists and Authors, and the National Association of College Stores. It is endorsed by the Library of Congress’s Center for the Book.
Among books deemed “inappropriate to shelf” at the library at the John F. Kennedy Middle School in Antioch, Tennessee, were predictable choices such as J.D. Salinger’s The Catcher in the Rye and a less predictable choice, The American Heritage Dictionary. (Nashville Tennessean, May 31, 2009)
Washington Supreme Court hears Internet filtering case
The Washington state Supreme Court heard arguments in June 2009 in a challenge to the Internet filtering policy of the North Central Regional Library, headquartered in Wenatchee. The ACLU had filed the lawsuit in 2006 on behalf of three library users and the pro-firearms Second Amendment Foundation, asking that the library be required to disable its filters when requested by an adult for research or other lawful purposes, as interpreted by the U.S. Supreme Court when it upheld the Children’s Internet Protection Act in 2003. “What the library does when it filters out selective pages from the Internet is the equivalent of acquiring the Encyclopedia Britannica and then ripping pages out of it,” argued ACLU attorney Duncan Manville. Attorneys speculated that the decision could take months, the Wenatchee World reported June 23.
Cartoon anthology not OK for middle schoolers, but teachers can check it out
A cartoon anthology filled with teenage angst, four-letter words, and some drug and sexual references has been pulled from the library collections at two Sioux Falls (S.D.) public middle schools. But rather than remove Ariel Schrag’s Stuck in the Middle: Seventeen Comics from an Unpleasant Age from the libraries at Edison and Patrick Henry middle schools, a review committee recommended placing the books in staff collections so that teachers can check them out and use them in class, according to the Sioux Falls Argus Leader.
Tennessee schools unblock LGBT websites following lawsuit
The Knox County (Tennessee) and Metropolitan Nashville Public Schools districts stopped blocking the websites of gay-friendly advocacy groups in early June, two weeks after a high school librarian and several students became the plaintiffs in a First Amendment lawsuit against the school districts. The suit objected to the district’s blocking access to information about gay, lesbian, bisexual, and transgendered issues on school computers while allowing access to anti-gay sites. Because the two school systems share the Education Networks of America blacklist settings with 80 percent of the other districts in Tennessee, the action resulted in providing access to gay-interest information for more than 100 school systems.
Maya Angelou’s Caged Bird allowed to fly (with parents’ OK)
A school district superintendent in Huntington Beach, California, decided in November to keep Maya Angelou’s autobiography, I Know Why the Caged Bird Sings, in middle school libraries but added a restriction that parents must provide consent for a student to check it out. “While the (district book review committee) agreed that the book may contain content that might be objectionable to some, it also reinforces . . . themes such as overcoming adversity,” said Alan Rasmussen, superintendent of the Ocean View School District. The district had reviewed the book a resident read a scene describing the rape of an eight-year-old girl from the book during a school trustee meeting.
Tango survives a challenge in Kansas City
The North Kansas City (Mo.) School Board voted 3–2 on Dec. 21, 2009, to keep a children’s book in school libraries despite a parent’s concerns. After more than an hour’s discussion, board members decided to retain And Tango Makes Three by Justin Richardson and Peter Parnell (the most challenged book of 2008), but they also agreed to place the elementary library card catalog on line so parents can see what materials are in their child’s library and decide whether they would like to request individual restrictions for their child. ( Kansas City Star, Dec. 22, 2009)
Magazine about sex to remain in Iowa library
A magazine about sex will stay where teens can find it at the Ames (Iowa) Public Library. Trustees voted 6–1 in November 2009 to support Director Art Weeks’s recommendation to continue openly displaying and offering free copies of Sex, Etc. in the teen section. Joyce and John Bannantine had presented a petition to the board in October with the signatures of 118 parents concerned about the topic of the magazine, which is written for teens by teens under the oversight of Answer, a national sexuality organization at Rutgers University. ( Ames Tribune, Nov. 20, 2009.)
Iowa restricts registered sex offenders’ use of public libraries
Iowa has barred all registered sex offenders from public libraries without the written permission of the library administrator. The law (Iowa Senate File 340) is the first known instance of a state barring people from using or accessing public libraries because they are convicted of particular crimes—a break with federal court opinions holding that the First Amendment protects each person’s right to freely access public libraries. The provision, signed into law in May 2009 by Gov. Chet Culver, is part of a comprehensive sex offender registry bill that also bars registered offenders from standing or loitering within 300 feet of the library’s property line. Iowa libraries scrambled to devise policies to effect the law, which took effect July 1.
Connecticut library retains book about grisly murder
The Cheshire (Conn.) Public Library Advisory Board voted in November 2009 to support Director Ramona Harten’s decision to buy two copies of Brian McDonald’s In the Middle of the Night: The Shocking True Story of a Family Killed in Cold Blood, which describes the 2007 slayings of the wife and two children of William Petit, of Cheshire. Friends of Petit , who was beaten and whose wife and two daughters were murdered when their Cheshire, Connecticut, home was robbed in July 2007, have had asked Cheshire Public Library not to stock the book.
Legislators grapple with extension of USA PATRIOT Act
A flurry of legislative maneuvering in the fall concerning the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism—a.k.a. USA PATRIOT—Act, which was due to expire at the end of 2009, resulted in extension of the act until late February. The original statute was passed in the weeks following the Sept. 11, 2001, terrorist attacks and signed into law by President George W. Bush on Oct. 26, 2001.
The ALA Council adopted a resolution at the 2009 Annual Conference that urged Congress to allow Section 215 of the act, which permits the Justice Department to conduct searches of library and bookstore records, to sunset on Dec. 31; it also adopted an advisory resolution that asked Congress to include a number of safeguards if Section 215 were to be reauthorized.
Two bills were introduced in the Senate in September. One, sponsored by several senators, was the JUSTICE (Judiciously Using Surveillance Tools in Counterterrorism Efforts) Act, S.B. 1684, which was designed to safeguard the constitutional rights of Americans while also ensuring that the federal government has the necessary tools to fight terrorism. The JUSTICE Act would reauthorize Section 215 but with additional checks and balances.
Less than a week later, on Sept. 22, Sens. Patrick Leahy (D-Vt.), Benjamin Cardin (D-Md.), and Ted Kaufman (D-Del.) introduced the USA PATRIOT Act Sunset Extension Act of 2009, which would raise the legal standards needed to obtain a Section 215 order by requiring the government to show “relevance” for an authorized investigation.
In the House on Oct. 20, Reps. John Conyers Jr. (D-Mich.), Jerrold Nadler (D-N.Y.), and Bobby Scott (D-Va.) introduced the USA PATRIOT Amendments Act of 2009 (H.R. 3845) and the FISA Amendments Act of 2009 (H.R. 3846). The former would prohibit the use of Section 215 to search the records of a library patron or bookstore customer unless there are “specific and articulable facts” to show that the person is “a suspected agent of a foreign power” or someone who is in contact with or known to a suspected agent. H.R. 3845 would also change Section 215 by allowing recipients to challenge the associated gag order and by prohibiting a request for library records that contain personally identifiable information concerning a patron. Taken together, the two House bills would systematically reform national surveillance laws.
As of mid-December, 37 state associations, led by Vermont, had approved resolutions condemning Section 215; many also voiced opposition to Section 505, which gives the FBI authority to secretly issue national security letters to obtain records from libraries without prior judicial oversight.
But also in mid-December, House Speaker Nancy Pelosi (D-Calif.) rejected a Senate plan to include amendments to the PATRIOT Act in a larger Pentagon funding bill. That decision was announced at a closed-door leadership meeting Dec. 14 and forced Democrats to go with a backup plan of extending the act until Feb. 28.
ALA Office for Intellectual Freedom launches privacy initiative
As more and more individuals’ personal information becomes available on line and elsewhere, the ALA Office for Intellectual Freedom (OIF) is launching Choose Privacy Week, a new initiative that relies on libraries, as information hubs of their communities, to sign on as places for citizens to learn about, think about, and talk about privacy issues.
The USA PATRIOT Act in particular has brought into sharp focus libraries’ long-held recognition that privacy is essential to the exercise of free speech, free thought, and free association, and that protecting user privacy is an integral part of libraries’ work and mission. Choose Privacy Week is an education and awareness campaign that invites citizens into a national conversation about our privacy rights in a digital age. The goal is for libraries to help educate and engage their users – giving individuals the resources they need to think critically and make more informed choices about their privacy.
The first Choose Privacy Week will be held May 2-8, 2010. More information is available at www.privacyrevolution.org.
U.S. declines to seek Supreme Court review of NSL gag order decision
The Obama administration decided in May 2009 not to ask the Supreme Court to review a decision that struck down USA PATRIOT Act provisions that allow the government to impose unconstitutional gag orders on recipients of national security letters. NSLs issued by the FBI require recipients to turn over sensitive information about their clients and subscribers. A lower court ruled in 2007 that the gag order provisions were unconstitutional, and the U.S. Court of Appeals for the Second Circuit upheld that ruling in 2008. The government made its decision passively, by allowing the period during which it could petition the Supreme Court for review to expire. The lawsuit at issue, now called Doe v. Holder, was filed by the ACLU and New York CLU in April 2004 on behalf of an Internet service provider (ISP) that the FBI served with an NSL. Because the FBI imposed a gag order on the ISP, the lawsuit was filed under seal, and even today the ACLU is prohibited from disclosing its client’s identity.
New Hampshire extends privacy protections to electronic materials
New Hampshire in July extended the protections of its library confidentiality law to library materials that are viewed or stored electronically. A bill introduced by Rep. Joel Winters (HB 157) amended the state’s existing library confidentiality statute by expanding the definition of “records related to the circulation and use of library materials or services” to include “records of materials viewed or stored in electronic form.” Signed into law July 29 by Gov. John Lynch, the new law helps erase the perception that users accessing electronic resources should receive less privacy protection than those borrowing books and other print materials.
Judith Krug, a champion of the freedom to read
The library community lost a champion of First Amendment rights with the death, on April 11, 2009, of Judith Krug, director of the ALA’s Office for Intellectual Freedom. Krug, who often said, “Censorship dies in the light of day,” was admired and respected for her efforts to guarantee the rights of individuals to express ideas and read the ideas of others without governmental interference.
As director of the OIF and executive director of the Freedom to Read Foundation for more than 40 years, Krug advised countless librarians and trustees in dealing with challenges to library material and was involved in multiple First Amendment cases that went to the United States Supreme Court. In addition, she was the founder of Banned Books Week, an annual weeklong event that celebrates the freedom to choose and the freedom to express one’s opinion.
Krug began her library career as a reference librarian at Chicago’s John Crerar Library in 1962. Later, she was hired as a cataloger at Northwestern University’s dental school library, working there from 1963 to 1965. She joined the ALA as a research analyst in 1965 and assumed the post of OIF director in 1967.
Krug’s life and legacy were memorialized by the New York Times, CBS News, National Public Radio, the Huffington Post, the Chicago Tribune, Library Journal, and scores of other newspapers, blogs, and magazines.