Intellectual Freedom in Libraries: Then and Now

1 of 46

Intellectual Freedom in Libraries: Then and Now

Preprint version submitted to ADVANCES IN LIBRARIANSHIP, Vol. 30. For final version, complete with citable page numbers, see ADVANCES IN LIBRARIANSHIP, Vol. 30, 2006 (ISBN 0120246309), Nitecki et al ed, pp 73-101, Cohen et al: "Intellectual Freedom in Libraries: Then and Now"available from

HenryCohen is a legislative attorney with the Congressional Research Service of the Library of Congress, where he advises Congress on free speech law, including the Children’s Internet Protection Act. He is also the book review editor of The Federal Lawyer.

MaryMinow is a library law consultant with LibraryLaw.com. She is the co-author, with TomasLipinski, of The Library’s Legal Answer Book (ALA: 2003).

The views expressed in this chapter are solely the authors’.

Abstract

This chapter compares the status of intellectual freedom in libraries “then” (1970s) and “now” (2005). As starting points for comparisons, it uses two Advances in Librarianship chapters, by EdwinCastagna (1971) and DavidK.Berninghausen (1979), respectively. Since that time, the Supreme Court has strongly upheld intellectual freedom in finding part of the Communications Decency Act of 1996 unconstitutional. However, it has also upheld the Children’s Internet Protection Act (CIPA), which requires libraries and schools that receive certain federal funds and discounts to use “technology protection measures” to block websites that have images that constitute obscenity, child pornography, or that are “harmful to minors.” The American Library Association has strengthened its intellectual freedom posture and resources in the last thirty years and faces many challenges ahead as states enact “mini-CIPAs” that are more restrictive of speech than the federal law.

Main Text

I.Introduction

This chapter compares the status of intellectual freedom in libraries “then” (1970s) and “now” (2005). As starting points for comparisons, it uses two Advances in Librarianship chapters, by EdwinCastagna (Castanga, 1971) and DavidK.Berninghausen (Berninghausen, 1979), respectively. The U.S. Supreme Court, although somewhat ducking the direct question of library censorship in a school library case in 1982, has consistently upheld intellectual freedom, even in the face of an onslaught of federal laws passed by Congress to restrict speech. The highwater mark came in 1997 when the American Library Association joined the American Civil Liberties Union and others to challenge the Communications Decency Act of 1996, which would have prohibited “indecent” speech on the Internet, an undefined term that could have swept away vast quantities of speech. In 2003, however, the Supreme Court ruled against libraries when it held that a narrower law, the Children’s Internet Protection Act is constitutional. This law requires libraries and schools that receive specified federal funds and discounts to use “technologyprotection measures” to block obscenity, child pornography, and material “harmful to minors.” This chapter looks at these and related cases, as well as the library profession’s evolving ethical and political stance on intellectual freedom issues.

II.Predictions made in the 1970s for the future of intellectual freedom in libraries

To assess intellectual freedom in libraries today, it is instructive to look at the assessments and predictions made by Edwin Castagna in 1971 and by DavidK.Berninghausen in 1979. These ]

authors witnessed the huge advances (and some retreats) in the 1960s and 1970s of the library profession’s articulation of intellectual freedom principles.

A.1971 EdwinCastagna chapter

The first chapter to address censorship, intellectual freedom, and libraries in Advances in Librarianship was written by EdwinCastagna during the Nixon administration in 1971. He asked whether democracy and personal freedom of choice were going to be expanded or contracted. Would there be a “death of censorship” and an “end of obscenity” or would we head for a time of authoritarian rule?

Castagna saw signs of authoritarian rule looming in the wake of the Nixon administration’s castigation and threatening of the press, and in the “hundreds of laws and ordinances on obscenity before our legal bodies.” On the other hand, he noted that Supreme Court decisions had been consistently for greater freedom of expression.

He predicted a continuing surging back and forth between extremes, with libraries likely to follow a zigzag course, struggling towards intellectual freedom with a minority “dragging their feet.” Some librarians would fall victim, he predicted, and the American Library Association would be called upon for help.

He reported on specific recommendations made in 1970 by the Activities Committee on New Directions for the American Library Association to strengthen the Intellectual Freedom Office, and opined that its subcommittee on intellectual freedom’s call to enlarge the scope of intellectual freedom to encompass “considerably more than just the freedom to read” could be a vast obligation. This obligation, he said, “will be difficult and may be impossible for [the ALA] to undertake,” and he noted the enormous resources that would be required to support librarians fired “for sporting a beard, for expressing unpopular opinions as a private citizen, for engaging in civil rights activities, etc., etc.” (Castagna, 1971: 249).

He predicted further advances in librarianship in intellectual freedom, accomplished under stress, usually after bitter controversy and often with damage to the antagonists on both sides. Yet “librarians are well trained in that struggle. Should they ever flag, they have only to read the record of their predecessors. It will encourage them to keep up the fight for the first freedom.”

B.1979 DavidK.Berninghausen chapter

In the years between Castagna’s chapter and Berninghausen’s, the American Library Association suffered a major internal intellectual freedom fracas when its own commissioned film, “The Speaker,” which was about intellectual freedom, was targeted by ALA members who wanted to stop its distribution. (The film was about a WilliamShockley-type speaker; Shockley was a physicist who argued that black people were innately less intelligent than white people.) No doubt this led to an outlook for the profession’s intellectual freedom future that was far more pessimistic than Castagna’s.

Berninghausen wrote that ALA leadership in preserving free inquiry in libraries may decline. He quoted PaulineWilson, who wrote that “The ALA is so ridden with dissention [sic] as to be effectively immobilized.” (Berninghausen, 1979: 27). Berninghausen challenged readers with his final sentence: “The question of whether free inquiry for library users will survive depends upon the vigor and effectiveness of those who defend it when it is challenged.” (Berninghausen, 1979: 28).

III. Intellectual Freedom Cases and Laws of Direct Relevance to Libraries from the 1970s to 2005

Even though the First Amendment contains what appears to be a total ban on laws that abridge the freedom of speech, the Supreme Court has upheld various abridgements that Congress and the states have imposed. This section of this chapter considers some restrictions on speech that affect libraries, including obscenity, child pornography, and material that is “indecent” or “harmful to minors.” It also examines how the Supreme Court has dealt with government attempts to regulate speech in libraries — attempts such as banning certain books, requiring filtering of sexual material on the Internet, and limiting the use of library meeting rooms, exhibit spaces, bulletin boards, and giveaway racks. This section includes a brief mention of how not only the First Amendment, but also the Commerce Clause, limits state regulation of the Internet.

A. Free expression

The First Amendment to the U.S. Constitution provides, “Congress shall make no law ... abridging the freedom of speech, or of the press.” The Supreme Court has interpreted this restriction, however, to apply not only to Congress, but to every governmental entity — federal, state, or local — including, of course, public libraries, public school libraries, and any other government-run library. The Supreme Court has also found that “no law” should not be taken literally, and no one ever has taken it literally. No one believes that the government may not prohibit speech that consists of threatening to kill someone, conspiring to commit a crime, offering a bribe (other than a campaign contribution), engaging in perjury, treason, or false advertising, or, to cite OliverWendellHolmes’ famous example, falsely shouting fire in a theater. There are no First Amendment absolutists, even if some people claim to be absolutists.

Other exceptions to the First Amendment are more controversial. These include the exceptions the Supreme Court has created for two types of pornography — obscenity and child pornography — thereby enabling them to be banned by federal and state law. Libraries have not traditionally collected obscenity or child pornography, but critics complain that, in the Internet age, libraries disseminate such material through public access terminals. They also complain that libraries disseminate material that, even though protected by the First Amendment with respect to adults, is inappropriate for minors. These include material that is “indecent,” “harmful to minors,” or violent. Let’s run through all these types of speech in order.

Obscenity. Obscenity is a small subset of hardcore pornography. Pornography, hardcore or otherwise, is, for the most part, protected by the First Amendment. This means that the government may not totally ban it, although it may forbid its distribution to minors. Pornography is not a legal term, so the law does not define it; it’s simply a form of speech that, under the First Amendment, the government may not abridge. Obscenity, by contrast, is a legal term, and, as the Supreme Court has said that the government may ban it, it must define it, and has done so.

In Miller v. California, the Supreme Court held that, to be obscene, pornography must, at a minimum, “depict or describe patently offensive ‘hard core’ sexual conduct.” (Miller v. California, 1973: 27). The Court in Miller created a three-part test, known as the Miller test, to determine whether a work is obscene. The Miller test asks:

(a) whether the “average person applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Obscenity, incidentally, may consist of words or pictures, though it is hard to imagine an obscenity prosecution today being brought against mere words.

The Supreme Court has clarified that only “the first and second prongs of the Miller test — appeal to prurient interest and patent offensiveness — are issues of fact for the jury to determine applying contemporary community standards.” (Pope v. Illinois, 1987: 15) As for the third prong, “[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.”

Note that nothing in the Miller test requires that a publication be harmful to be deemed obscene, and obscenity may be the only type of speech to which the Supreme Court has denied First Amendment protection without regard to whether it is harmful. The Court has found simply “that any benefit that may be derived from [obscenity] is clearly outweighed by the social interest in order and morality,” and that there is evidence that, at the time of the adoption of the First Amendment, obscenity “was outside the protection intended for speech and press” (though Justice William O. Douglas, dissenting, wrote that “there is no special historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted the First Amendment”). (Roth v. United States, 1957: 483, 485)

Obscenity is unique among exceptions to the First Amendment in other respects as well. Defining it in part on the basis of whether it is patently offensive according to community standards means that a majority of the population in a given community may prevent the minority from viewing what it wants, and that seems contrary to the very purpose of the First Amendment. Furthermore, because there is no way that a publisher or library can know what any particular community’s standards are — until after a jury convicts or acquits it of publishing or distributing obscenity — the Miller test denies publishers and libraries notice of when they commit a crime. In almost any other context, this would violate the Constitution’s guarantee of due process of law. On top of that, the Miller test is incoherent in requiring that a publication simultaneously appeal to the prurient interest of, and be patently offensive to, one and the same community. As law professor KathleenM.Sullivan succinctly put it, the first two parts of the Miller test “require the audience to be turned on and grossed out at the same time.” (Sullivan, 1992).

The notion of community standards has been problematic since the Supreme Court adopted it in 1973, but it became more problematic with the advent of the Internet. It was problematic before because the Court never defined “community,” except to note that it was not any precise geographic area, though it might be less than an entire state, and that a trial judge who directs a jury to apply community standards need not specify what community he means. (Hamling v. United States, 1974; Jenkins v. Georgia, 1974) This makes it impossible for the publisher of a national magazine to instruct its distributors not to sell it to retailers in any particular community whose standards it fears the magazine might not meet. Even if this were possible, a publisher could not prevent a purchaser of its magazine from bringing it or mailing it into a disapproving community.

Then we come to the age of the Internet. When someone posts material on the Internet, he posts it on a server and does not send it to any community. Rather, any community that has a computer and a means to connect to the Internet may obtain access to the material. Web publishers cannot, therefore, even in theory, restrict access to their material based on the locale of the site visitor. This means that, under the Miller test, the most puritanical community in the nation may prevent the entire nation (and the world) from gaining access to material that it finds patently offensive. Yet the Supreme Court held that this fact did not render unconstitutional a statute that used “community standards” in defining a crime committed via the Internet. (Ashcroft v. American Civil Liberties Union, 2002). In 1994, a husband and wife in Milpitas, California, were convicted and sentenced to prison for transmitting obscenity over the Internet, after a Tennessee undercover Postal agent, in a sting operation, downloaded images they had posted. (United States v. Thomas, 1996)

The good news for free-speech advocates is that the “community standards” requirement makes it is difficult for the government to get convictions for obscenity, and, as a consequence, the government brings relatively few obscenity prosecutions. The difficulty arises because pornography is so prevalent in the United States that the defense can usually call a witness, such as the proprietor of a local video shop, to testify that the allegedly obscene material on trial is similar to what members of the community buy or rent on a regular basis. This may have been a factor that prompted a comment by an anonymous FBI agent, when, in the summer of 2005, Attorney General Alberto Gonzales announced that he would divert eight FBI agents, a supervisor, and assorted support staff to gather evidence against manufacturers and purveyors of adult pornography. The reportedly “exasperated” FBI agent said, “I guess this means we’ve won the war on terror.” (Gellman, 2005).

Child pornography. Libraries are increasingly contending with the unhappy fact that some patrons use their public terminals to download child pornography. Because child pornography, like obscenity, is unprotected by the First Amendment, the Supreme Court has had to define it too, and has defined it as material that “visually depicts sexual conduct by children below a specified age.” (New York v. Ferber, 1982: 764). The “sexual conduct” that may not be depicted is defined by federal law to include not only sex acts but also the “lascivious exhibition of the genitals or pubic area of any person,” even when clothed. Child pornography is unprotected by the First Amendment even when it is not legally obscene; in other words, child pornography need not meet the Miller test to be banned — it need not be prurient, patently offensive, or lack serious artistic value. The fact that child pornography may be artistic, after all, is no defense to child molestation.

A free-speech advocate might argue that, though the government may certainly prohibit adults from having sex with minors, the First Amendment should preclude the government from banning photographs of the activity. After all, the First Amendment ordinarily protects photographs of crimes being committed. The difference with child pornography, however, is that the crime — child abuse — is committed for the sake of the photograph, and, as the Supreme Court wrote, it would be “difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies,” and not also by pursuing the photographs and movies themselves and those who possess them.