Raizel Liebler has a M.S. in Library and Information Science from University of Illinois and a J.D. from DePaul University. She is a law librarian in Chicago
and a contributing author to the LibraryLaw blog. A longer version of this article focused on the Supreme Court’s views of
libraries will be published this month in the Northern Illinois University Law Review.
Libraries serve a variety of roles: as repositories of cultural knowledge, as places to communicate with others, and as places to gain information from books and other printed materials and the Internet. However, many also see libraries as places for illegal activities – from collecting dangerous books, to viewing of Internet pornography, to lairs of terrorists and un-American interests.
The tension between images of libraries as good – as places of learning with that of libraries as bad – as places of illicitness is a long-running one. Richard Brinsley Sheridan, a sixteenth century playwright, claimed a library is “an evergreen tree of diabolical knowledge.” However, negative views of libraries are in sharp contrast with views that libraries pay an important role in society. United States courts have called libraries “the quintessential locus of the receipt of information,” places that are “dedicated to quiet, to knowledge, and to beauty,” and therefore “a mighty resource in the free marketplace of ideas.”
The United States Supreme Court has had three major cases in its history, Brown, Pico, and American Library Association, addressing the appropriate role of libraries and the activities allowed within library premises. The scope of the cases ranges from whether libraries are the appropriate space for silent protest, to whether school library books can be removed for objectionable material, to whether libraries can be forced to have filters on their Internet-use computers to try to weed out pornography to get federal funding.
In addition to these three decisions by the Supreme Court, the Justice Department has taken action in regards to libraries. The Justice Department has taken a limited view of libraries for at least the past thirty years. The view of libraries as locations for criminal activities and librarians as dupes run through the Library Awareness Program, a Federal Bureau of Investigation means of preventing “recruitment” of librarians and library patrons by unwanted foreign influences, and the implementation of the USA PATRIOT Act, which authorizes the Justice Department to dig into library circulation, Internet-use, and other records.
From the Supreme Court in Brown to the recent actions regarding the USA PATRIOT Act, these issues put into sharp relief the contrast between seeing libraries as information sources for all and as hotbeds of illegality.
BROWN: Are Silent Protests in a Library Illegal?
In 1966, the Supreme Court in Brown v. Louisiana, 33 U.S. 131, analyzed whether a library could be used for a silent protest. This case took place at a time of great turmoil within the country, when lines of segregation were being crossed. The Brown decision discussed here occurred twelve years after the other more famous Supreme Court civil rights Brown case, Brown v. Board of Education, which established that separate was not equal in the realm of public schools.
In Brown, silent protesters challenged the segregated status of libraries in the South. In this case, the physical libraries, as well as borrowing privileges, were segregated by race. The library system had bookmobiles, but they were color coded, with one bookmobile serving only white persons and the other bookmobile only serving African-Americans.
On a Saturday morning in 1964, five African-American men, all residents of the library service area, went into a branch library, to protest peaceably what they considered the denial of their constitutional right to equal treatment in a public facility. After making a book request, the men did not leave as expected; instead, they sat down, to protest the library’s segregated system. The protesters were arrested and subsequently convicted of violating a statute making it a criminal offense to congregate in a public building with intent to provoke a breach of the peace. The protesters challenged their convictions, leading to the Supreme Court’s decision.
The Supreme Court opinions vary greatly in what is considered normal and appropriate use of the library. According to the plurality, the protesters’ “deportment while in the library was unexceptionable. They were neither loud, boisterous, obstreperous, indecorous nor impolite.” White’s concurrence agrees, stating the protesters “were there but a very brief period before being asked to leave, they were quiet and orderly, they interfered with no other library users and for all this record reveals they might have been considering among themselves what to do with the rest of their day.”
Black, the author of the four-justice dissent, argues that the entry and the sitting protest of the protesters clearly disturb the normal functioning of the library – as if the entrance of several African-American men into a library and their subsequent silent, non-violent protest was shocking. He states, “Short of physical violence, petitioners could not have more completely upset the normal, quiet functioning of the Clinton branch of the Audubon Regional Library.” The idea of a quiet protest as so fundamentally disturbing shows that Black was more interested in keeping the status-quo of segregated (and presumably quiet and police-free) libraries intact than ensuring that all citizens would be able to visit and use the library.
A related issue is whether the patrons themselves received equal treatment. The plurality states that the protesters presence in the library was legal, because African-Americans cannot be denied access to a public library in which white persons are welcome – the protesters’ “presence in the library was unquestionably lawful. It was a public facility, open to the public.” A group of people, here African-Americans, could not be denied the right of access to the library when others were allowed to enter. This is an important civil rights statement as well as a statement about the purpose of libraries – to serve the whole of the public.
However, the plurality is disturbed that
the locus of these events was a public library – a place dedicated to quiet, to knowledge, and to beauty. It is a sad commentary that this hallowed place … bore the ugly stamp of racism. It is sad, too, that it was a public library which, reasonably enough in the circumstances, was the stage for a confrontation between those discriminated against and the representatives of the offending parishes.
The plurality views the library as place that should remain quiet, without disturbance. Yet a protest at such a location was wholly appropriate, as the library itself was the object of the protest, with the intent to allow the knowledge and beauty to serve the entire population of the area, rather than just a limited number. During the civil rights movement of the 1960s and 1970s, libraries did not become a focal point of protests; instead, libraries were yet another place where protests took place, both because they were public and because they were government institutions.
The boundaries of appropriate activities conducted in libraries and the limits to the appropriate use of libraries by controversial groups are still being negotiated. Brown started the ball rolling for courts to consider the issue of libraries as public places and to question the appropriate use of libraries. The locus of appropriate library use has shifted since Brown on two fronts: first, the use of meeting rooms and other places, such as exhibit spaces, within a library, and second, on the appropriate behavior of patrons in libraries. The use of meeting rooms by groups, especially the use of these rooms for religious speech, hate speech, or controversial speech has affected many libraries, in a similar fashion to the library used for a political protest in Brown.
In several recent cases, library-imposed limitations on the types of speech allowed within the confines of the library have been struck down by courts, based on the idea that if government space is opened for some ideas, it must be open to all ideas. In Concerned Women for America, Inc. v. Lafayette County, 883 F.2d 32 (5th Cir. 1989), the Fifth Circuit ruled that a library could not prevent groups with a religious or political viewpoint from using its meeting rooms after those rooms had been open to other groups.
In Brown, protesters were asked to leave and arrested because they were the “wrong” type of person in the wrong place – African-Americans in a “whites-only” space. The issue of who can use a library and when their actions are inappropriate and can be halted has been an issue for libraries nationwide and has been addressed by several lower courts. For example, in Kreimer v. Bureau of Police of Morristown, 958 F.2d 1242 (3d Cir. 1992), the most influential case of its kind, a homeless patron of a public library was expelled from a library for violating its library code of conduct. The court ruled that the library in question may restrict the use of the library by its patrons, requiring them to follow the “Patron Policy,” an “acceptable use policy.”
According to the Kreimer court, the purpose of a library is to serve the public, but limitations are allowed. The court states that:
A library is a place dedicated to quiet, to knowledge and to beauty. Its very purpose is to aid in the acquisition of knowledge through reading, writing and quiet contemplation… The library is obligated only to permit the public to exercise rights that are consistent with the nature of the library and consistent with government’s intent in designating the library as a public forum.
Patrons continue to push the boundaries of “acceptable behavior” and the limits of appropriate library behavior is being defined by courts continually.
The overall conflict from the case progeny of Brown between allowing the greatest amount of use, both by individual users and by users as a whole continues to be an important conflict within the library community. Libraries continue to be the focus of controversy, as seen in Brown and American Library Association, which instead of asking questions concerning the role of others entering the library or other aspects of library space, discuss the items contained within the library. What constitutes the “nature of a library” is still being debated, especially with the addition of the Internet to some library collections, which will be discussed in the American Library Association case section.
PICO: Can School Boards Remove Materials from Libraries?
Another issue in regards to the role of libraries is the materials contained in a library. Pico and American Library Association both address this issue in two very different ways – Pico discusses the removal of material already present in a school library, while American Library Association discusses a requirement to install filters on Internet computers in libraries to eliminate dissemination of pornography to receive government funding.
Board of Education v. Pico, 457 U.S. 853 (1982), a case concerning school library censorship, fits within a larger context of library censorship decisions by lower courts in the 1970s and early 1980s. While there had been earlier book censorship efforts, at that time, school boards became very concerned with the items contained in school libraries. In Banned in the U.S.A: A Reference Guide to Book Censorship in Schools and Public Libraries, Herbert N. Foestrel discusses how many of the cases that precede Pico focus not on library practices or even on the books themselves, but instead on the “authority of school officials to control the curriculum and the libraries as part of the process of inculcating and socializing students.” i Frequently, parents and school board members challenged books based on ideological differences with the books, such as including a variety of religious perspectives, rather than determining if the books were educationally appropriate. The ability and responsibility of librarians to select appropriate books for their patrons, the schoolchildren, was often disregarded by censors or courts.
By the time of the Pico decision, school library book challenges were occurring frequently, with many federal courts making decisions about the appropriateness of the censorship decisions. The cases leading up to Pico involved both the purchase and removal of books from school and public libraries, though often the rulings discussed only the removal of items. The federal circuit courts were split as to whether school libraries, librarians, and students had the right to keep or purchase items or whether school boards had a right to remove items from library collections; therefore, the Supreme Court decided to rule in Pico.
In Pico, a local school board for a district high school and junior high school, after describing ten books as “anti-American, anti-Christian, anti-Semitic, and just plain filthy,” ordered the removal of several books from the school libraries. After the removal of the books, several students from the schools sued, claiming that the board’s actions were taken due to specific social, political, and moral viewpoints and denied the students’ First Amendment rights.
In Pico, the Supreme Court ruled 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 determine the norm in politics, nationalism, religion or other matters of opinion. The court also connects Pico with its earlier case law of Brown stating, “a school library, no less than any other public library, is ‘a place dedicated to quiet, to knowledge, and to beauty.’” The connection between the various Justices’ understanding of public libraries in Brown and the somewhat different role of the school library in Pico is important.
The reasoning for this decision comes from the plurality view that “we think that the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library.” The removals may not be due to disagreement with the ideas contained in the materials, but may take place if the materials are pervasively vulgar. Explained in greater detail, “School officials may not remove books for the purpose of restricting access to the political ideas or social perspectives discussed in them, when that action is motivated simply by the officials’ disapproval of the ideas involved.”
What is the Role of the Public Library and Other Alternative Sources of Information?
While the Justices did not agree on the appropriateness of the books in the school library, they agreed that if the books were barred from the school library, students nevertheless had a constitutional right to read them in other locations. The plurality states that libraries hold an important role in the lives of children: that students learn “that a library is a place to test or expand upon ideas presented, in or out of the classroom.” The dissents believe that there should be a line drawn between school library materials and materials more appropriately placed in other locations.
The accessibility of books and other similar library materials at public libraries and alternative sources seems to be a primary concern for the dissenting Justices. Once books are removed from school libraries “alternative sources” exist: “Books may be acquired from bookstores, public libraries, or other alternative sources unconnected with the unique environment of the local public schools” and “books may be borrowed from a public library, read at a university library, purchased at a bookstore, or loaned by a friend.” Students are not prevented from receiving the same information in another context: “They are free to read the books in question, which are available at public libraries and bookstores; they are free to discuss them in the classroom or elsewhere.” Therefore, the appropriate place for children to explore materials considered inappropriate within a school library is a public library where students can go to receive a wider array of information.
Because these books are available at the public library, a more acceptable place for these materials, the need for them to be at the school library is not nearly as important as if they were not available at all. This argument is disingenuous considering the limited accessibility of many of these books – the only connection some students have with books and library materials is at the school library. In addition, these books were award-winning, age-appropriate materials selected by the librarian and the fact that there were other sources of these materials should not detract from the professional collection development of librarians.
Rehnquist also makes clear that the possibility of removed library materials appearing in public library collections does occur, because in this case, “the local public library put all nine books on display for public inspection. Their contents were fully accessible to any inquisitive student.” Interestingly, Rehnquist never questions either this display or the need for it. It is likely that the public librarians decided to make a display because the materials were banned from school library, perhaps as a “banned books” display. The idea of a possible banned book display used as an example of openness for materials truly stretches the imagination.
While in an ideal world, Pico should have solved issues involving school library material censorship, it did not. Pico only created guidelines to be followed by future school boards, but did not end court challenges to school library removal decisions.
The issue of removal of items from school library shelves and public library continue to be a significant issue for librarians. For example, every year the American Library Association, in conjunction with libraries across the country conducts Banned Book Week. In the next case discussed, American Library Association, a new type of removal decision is discussed, the removal of Internet materials through using a filtering program. Unlike Pico, where the removal of a book physically leaves a space, one issue in American Library Association, is whether preventing patrons and library staff from viewing websites is “removing” part of the collection at all.
AMERICAN LIBRARY ASSOCIATION: Can Libraries Be Made to Filter the Internet to Receive Governmental Funding?
In the 1990s, as part of their collection development practices, many libraries – including special libraries, public libraries, school libraries, and academic libraries – added Internet-use capabilities to the services offered to both their patrons and their staffs. Many libraries created acceptable use guidelines for the use of the Internet or changed their previous policies to include statements about the appropriate use of the Internet on library computers. Some libraries chose to “filter” or limit the Internet use they provide in a variety of ways – including placing Internet filters on computers, limiting minors to view limited library-screened websites, and only allowing children to view the Internet with parental permission.
Arguments for filtering or limiting non-filtered computers to adults are based on the idea that there is a great deal of unimportant, unsavory, and illegal material on the Internet, which children (and in some cases, adults) should be protected from. Arguments against filters or limitations are based on First Amendment freedom of speech, including the right to speak as well as the right to read, considering that filters work like a sieve, preventing some information to be received while other information can be received. Often filters prevent users from accessing information without allowing them to know anything has been blocked; the list of sites blocked is proprietary, with libraries unable to view a complete list of sites blocked or to know under what reasoning sites have been blocked; or libraries unable to de-select blocked sites by the filter.
Any action libraries took to respond to the availability of material led to lawsuits, both from those who supported filters and those who opposed filtering. In response to the filtering of Internet use computers on all public-use library computers in Loudoun County, a group of citizens sued, claiming that their First Amendment rights had been violated.2 The court stated that a library did not need to “offer Internet access, but, having chosen to provide it, must operate the service within the confines of the First Amendment.” The library therefore could not be required to use filters, not even on its children’s use computers. This case was the first time a court had made a ruling concerning the legality of filters and while it did not apply nationwide, this case was used as a justification for why filters could not be used on library computers.
A library was also sued for not installing filters at all. In Kathleen R. v. City of Livermore, 104 Cal. Rptr. 2d 772 (Ct. App. 2001), a mother sued a public library because her twelve-year old son downloaded sexually explicit pictures from the unfiltered library computers. The court ruled that libraries do not place children in danger by having unfiltered Internet access, and that considering that the library policy stated that patrons use the Internet at their own risk and minors are not supervised by librarians while using the Internet, the library was not liable. Kathleen R. and the threat of being sued for “inappropriate use” of the Internet became a concern of libraries and librarians.
In an attempt to stave what it believed to be a wave of obscene and “pornographic” uses of the Internet specifically in libraries, Congress took action. Congress passed the Children’s Internet Protection Act (CIPA), which requires all libraries and schools that receive federal government funds for Internet access to install and use filters to prevent the access of images that are obscene, child pornography, or harmful to minors. The American Library Association case is based on a constitutional challenge to this act.
In American Library Association, a divided Supreme Court has for the second time in its history, decided what can be removed from or limited to a library’s collection. In this case, the Supreme Court avoided an opportunity to follow any of the opinions of Pico, which at its core, attempts both to protect community standards and free speech rights. Instead, the Court was primarily concerned about funding, specifically the limits Congress can make on the money it disburses. By focusing on funding, the Court avoided both the general free speech arguments, such as the government-installed filters will prevent the use of the Internet to the fullest, and also important, but less mentioned, the fact that the imposition of the filters are not imposed by local government, but from the national one.
With the exception of focusing on funding, the major concern of the Court is prevent library patrons from viewing “pornography,” a vague term with no legal definition, unlike child pornography, obscenity, and other forms of unprotected speech that have clear legal definitions. This concern about appropriate use of the Internet focuses in the plurality opinion on the views of Congress, rather than the views of libraries.
What is the Mission of Libraries?
While this case revolves around the use of filtering on libraries, the starting point of arguments about the legality of this action surround the purpose of libraries in American society. A large part of the plurality’s weight of its opinion concerns the traditional role of libraries, to provide limited, appropriate materials. In contrast, Souter describes the view of the plurality as arguing that “the traditional responsibility of public libraries has called for denying adult access to certain books, or bowdlerizing the content of what the libraries let adults see.” These divergent perspectives exemplify two different models of library service: providing classic materials in both senses – traditional types of materials and the classics, and providing materials without distinction based on the audience. The collection development viewpoints that further shape the opinions are based in these viewpoints of the overall role of public libraries.
The plurality’s “traditional” view of libraries is one of high ideals. According to the plurality, “Public libraries pursue the worthy missions of facilitating learning and cultural enrichment.” Quoting from ALA’s Library Bill of Rights, the plurality states “libraries should provide ‘books and other . . . resources . . . for the interest, information, and enlightenment of all people of the community the library serves.’”
The plurality takes this idea in a limiting, instead of expansive, direction. According to the plurality, “To fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons. Although they seek to provide a wide array of information, their goal has never been to provide ‘universal coverage.’” The plurality makes statements about the traditional roles of libraries, and assumes not only that its statements about present-day library roles are correct, but also that retrospectively, the role of libraries has not changed over time. The lack of understanding of a changing role of libraries prevents the plurality from understanding that inclusion of the Internet may indeed serve the present role of libraries.
In his dissent, Souter strongly disagrees with the plurality’s conception of the “traditional role” of the library. He understands not only that the “traditional role” of libraries is a misnomer, but also that libraries and librarians, generally, view the role of libraries as inclusive, information-providing bodies without limitation on perspectives. Souter states, “the plurality’s conception of a public library’s mission has been rejected by the libraries themselves. And no library that chose to block adult access in the way mandated by the Act could claim that the history of public library practice in this country furnished an implicit gloss on First Amendment standards, allowing for blocking out anything unsuitable for adults.” Souter believes that there is no support for library Internet blocking in the historical development of library practice.
In disputing the plurality’s view of the “traditional mission” of libraries, Souter lays out a highly different view of libraries. His analysis starts with a historical perspective from the 19th century and moves into the present. Souter states that the “Institutional history of public libraries in America discloses an evolution toward a general rule, now firmly rooted, that any adult entitled to use the library has access to any of its holdings.” He has a nuanced understanding of access means, stating that while “libraries commonly limit access on content-neutral grounds to, say, rare or especially valuable materials” this does not raise “First Amendment concerns, because they have nothing to do with suppressing ideas.”
How Should the Mission of the Library Determine the Management of the Collection?
The appropriate mission of libraries is also tied to the materials in the library collection. How libraries create collection development policies and what materials they choose to collect became an important issue in this case. Unfortunately, the plurality opinion holds the greatest weight and has the most antiquated view of library collection development.
The plurality explains the “worthy missions” of the public library in facilitating “learning and cultural enrichment.” According to the plurality, “libraries must have broad discretion to decide what material to provide to their patrons.” According to Stevens, this “selection decision is the province of the librarians, a province into which we [courts] have hesitated to enter.” The plurality, at least in part agrees:
A library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source. Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to [strict] scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when these judgments are made for just the same reason.
The plurality equates more traditional practices of libraries with the use of the Internet, which on its own would be acceptable. Libraries are entitled to make collection development decisions – a professional decision based on discretion. But that is not what the Supreme Court is allowing – instead Congress is making the decision. Many libraries under CIPA will be blocking pornography and other legal materials not through decisions based on collection development standards, but through decisions based on funding. While the plurality states that librarians are afforded discretion in regards to collection development, these decisions are only relevant if the material collected is of the “highest quality” – clearly pornography should not be included.
Overall, in discussing collection development, the plurality uses a “separating the chaff from the grain” model of collection development – that there is clear distinction between materials of quality and not-quality, with the role of libraries to collect only quality. The opinion states that “public libraries seek to provide materials “that would be of the greatest direct benefit or interest to the community . . . libraries collect only those materials deemed to have “requisite and appropriate quality.” To support this position, the plurality cites to two Collection Development texts, both of which predate dramatically the use of the Internet, using these texts to exemplify all library collection development:
The first from 1980: “The librarian’s responsibility . . . is to separate out the gold from the garbage, not to preserve everything”; the second from 1930: “It is the aim of the selector to give the public, not everything it wants, but the best that it will read or use to advantage.”
There is also no discussion of the fact that public libraries do supply their patrons with materials that are not necessarily those of the high standard referenced by the plurality – such as bestsellers, celebrity influenced magazines, music by popular artists, and DVDs of popular movies. No effort is made in the plurality opinion to discuss the cost differential between supplying the public traditional services, such as books and periodicals, where the more information provided equals greater cost versus open access to the Internet, which instead of definitively costing more to provide more information can cost more to limit information via filters.
In contrast to the plurality, Stevens views the collection development decisions as important as other types of academic freedom and should be given wide discretion. As Stevens states, “we have always assumed that libraries have discretion when making decisions regarding what to include in, and exclude from, their collections.” Stevens views libraries as educational institutions for the public, with “one of the central purposes of a library is to provide information for educational purposes: “‘Books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves.’” Stevens’ quote is from the ALA’s Library Bill of Rights, an important acknowledgement of the professions own viewpoints, in tandem with the plurality’s quote from the same source. Stevens concludes, “Given our Nation’s deep commitment “to safeguarding academic freedom” and to the “robust exchange of ideas,” a library’s exercise of judgment with respect to its collection is entitled to First Amendment protection.”
The opinions also discuss a possible distinction between traditional library materials and Internet-based materials. The plurality disagrees with the idea that a library has less discretion in choosing Internet-based materials because a library reviews and chooses to include all of the traditional materials in its collection, such as books and periodicals, while websites are (often) not individually reviewed before being made available. The plurality dismisses this argument as constitutionally irrelevant:
A library’s failure to make quality-based judgments about all the material it furnishes from the Web does not somehow taint the judgments it does make. A library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source. Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when these judgments are made for just the same reason.
The plurality views the impossibility of reviewing Internet materials by libraries as a “failure” – allowing outside forces, Congress and filter manufacturers, to make the decisions about what are appropriate library materials. The discretion regarding appropriate traditional materials, such as books, is left in the hands of librarians.
However, Souter believes that the plurality’s view to lump all collection decisions together, both those regarding traditional materials and Internet materials, to be foolhardy. He states that while
traditional scarcity of money and space require a library to make choices about what to acquire, and the choice to be made is whether or not to spend the money to acquire something, blocking is the subject of a choice made after the money for Internet access has been spent or committed. Since it makes no difference to the cost of Internet access whether an adult calls up material harmful for children or the Articles of Confederation, blocking (on facts like these) is not necessitated by scarcity of either money or space.
Cost and space are issues when considering purchasing traditional materials, but the Internet does not cause such scarcity problems for a library with Internet access.
The plurality also believes that “true” collection development of the Internet by librarians cannot be accomplished. Therefore, according to the plurality
it is entirely reasonable for public libraries to … exclude certain categories of content, without making individualized judgments that everything they do make available has requisite and appropriate quality.
The ability of libraries to make a distinction between all of the Internet, certain selected sites, and categories of Internet-based information might be a valid collection development decision if indeed made by librarians, but Congress – not by librarians is making the collection development decision about the Internet!
Other Important First Amendment Issues?
Another important related First Amendment issue is whether libraries themselves have first amendment rights. The Justices tackle this issue from many different perspectives, with the dissents seemingly stating that libraries do indeed have First Amendment rights, and the majority stating that it really does not matter either way for this case.
Stevens argues that “[a] federal statute penalizing a library for failing to install filtering software on every one of its Internet-accessible computers would unquestionably violate [the First] Amendment.” In response, the plurality states that “assuming again that public libraries have First Amendment rights—CIPA does not “penalize” libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access.” Stevens “think[s] it equally clear that the First Amendment protects libraries from being denied funds for refusing to comply with an identical rule. An abridgment of speech by means of a threatened denial of benefits can be just as pernicious as an abridgment by means of a threatened penalty.” Instead, according to the plurality, this is only a funding issue, “To the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance.”
Souter believes that not only is CIPA unconstitutional, but it “mandates action by recipient libraries that would violate the First Amendment’s guarantee of free speech if the libraries took that action entirely on their own.” Souter views the important constitutional question in this case as “whether a local library could itself constitutionally impose these restrictions on the content otherwise available to an adult patron through an Internet connection, at a library terminal provided for public use.” His answer is no, because this would be censorship, a “library that chose to block an adult’s Internet access to material harmful to children … would be imposing a content-based restriction on communication of material in the library’s control that an adult could otherwise lawfully see.”
Stevens also believes that “the message conveyed by the use of filtering software is not that all speech except that which is prohibited by CIPA is supported by the Government, but rather that all speech that gets through the software is supported by the Government.” This statement leads to the unfortunate dual conclusion that Stevens believes that libraries support all of the speech contained in their materials , whether on the Internet or in other forms, and that patrons will trust that messages of websites viewed in libraries, whether or not they are filtered, are supported by libraries.
Also, both Stevens and Souter are concerned about the impact of filtering on library staff. Stevens also makes clear the limitations that CIPA puts not only on Internet use by the public, but also on the use of the Internet by library staff, including librarians. Congress “does not merely seek to control a library’s discretion with respect to computers purchased with Government funds or those computers with Government-discounted Internet access.” Instead, it “requires libraries to install filtering software on every computer with Internet access if the library receives any” subsidy. Souter views CIPA as Congress’ way of not only imposing conditions, but also mistrusting or not trusting librarians to make important decisions for their own libraries, patrons, and staff. He argues that “the Government’s funding conditions engage in overkill to a degree illustrated by their refusal to trust even a library’s staff with an unblocked terminal, one to which the adult public itself has no access.” According to the overall finding of the Court, librarians who work for the government – by working for public libraries and schools – are limited in the information they can access because another branch of government, not in their own state, but the federal government wants to and can limit them.
The plurality also states that, unlike the libraries that argued that filtering would “distort the usual functioning of public libraries,” similar to the role of attorneys that argue against the government. The plurality concludes that
Public libraries, by contrast, have no comparable role that pits them against the Government, and there is no comparable assumption that they must be free of any conditions that their benefactors might attach to the use of donated funds or other assistance.
However, libraries do have a role that is in contrast to the overall governmental role – they include materials that disagree with the government’s position on a variety of issues.
In addition, libraries, even government funded ones, and the government as a whole, have different goals, which have become clearer during the protests against the USA PATRIOT Act. The government argues that it wants to find terrorists and traitors wherever they may lurk, including in libraries; libraries argue that their goal is to promote the exchange of information and to achieve this goal the privacy of their patrons must be respected. The plurality fails to see how similar lawyers and librarians employed by the government are by promoting the positions that can diverge from government held positions.
What Forum is this? Internet in Libraries
A critical way that courts review First Amendment rights on government property is through forum analysis. Forum analysis is concerned about where speech happens, analyzing the location or forum for the speech, helping to determine whether the government restriction is constitutional.
The three types of classification of forums are the traditional public forum, the limited public forum, and the nonpublic forum. Traditional public forums are “places which by long tradition or by government fiat have been devoted to assembly and debate,” such as public parks and sidewalks. Limited forums are places that the government has opened for use by the public “as a place for expressive activity,” such as a school board meeting. A limited or designated public forum is created when the government voluntarily opens to the public a particular forum for speech. The government can create a limited public forum for speech, but once the forum has been created, the government is limited in restricting it. Non-public forums are places that have not “by tradition or designation” become “a forum for public communication.”
The majority of cases regarding libraries and their elements – both meeting rooms and the Internet – have found that libraries are limited public forums. The highest-level court to rule on forum analysis of a library, the Third Circuit Court of Appeals has held that the public library is a limited public forum open “to the public for expressive activity, namely communication of the written word.” iii
Therefore, because governments have opened libraries for the use of informational materials, the ability of governments to limit the spread of information, both the items contained within the library and the library premises, has been severely limited. However, when the forum involved is the Internet services of a library and the government funding for those services, the Supreme Court discards the use of the public forum doctrine.
In this case, the plurality seems to be concerned only with the items in a library, rather than the possibility of the whole of a library as a place – the potentiality of the whole of a library as a public forum. This focus on the collection development decisions of libraries, compared to spaces in libraries such as meeting rooms and bulletin boards, coupled with the focus on government funding limits the possibility that these statements are arguing directly that a public library is a non-public forum.
The plurality emphatically states its belief that Internet use in libraries is not a public forum. Based on its view that forum analysis is “incompatible with the broad discretion that public libraries must have to consider content in making collection decisions,” the plurality states that “Internet access in public libraries is neither a “traditional” nor a “designated” public forum.” The basis for this statement seems is that because the use of the Internet in libraries has not been used from “time immemorial” and because the historical background of libraries being used as a public forum is not present, it cannot be a traditional public forum. The plurality states, “the doctrines surrounding traditional public forums may not be extended to situations where such history is lacking.” Therefore, while libraries have traditionally been places where alternative viewpoints have been discussed, both in text and through discussion, they do not count as traditional public forums.
In addition, the plurality concludes that because the government, here the library, has not opened up its property for use as a limited public forum for Internet-related speakers, a limited public forum does not exist either. The plurality states that Internet access in a public library is not a “designated public forum” because for a designated public forum to exist, “the government must make an affirmative choice to open up its property for use as a public forum.”
The plurality states “A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak.” The plurality states that a public library “provides Internet access, not to ‘encourage a diversity of views from private speakers’ . . . but for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.” The plurality concludes by stating, “as Congress recognized, “[t]he Internet is simply another method for making information available in a school or library. . . . It is ‘no more than a technological extension of the book stack.’”
The plurality does not consider that the forum may not be for those who speak, but instead, for those who read, watch, or listen. Considering that a library serves as a conduit between speakers, the producers of information, and readers, the receivers and interpreters of information, the plurality does not understand the library setting as a forum. According to Bernard Bell’s article Filth, Filtering, and the First Amendment, “Public libraries, however, do not primarily exist to assist those who wish to express their ideas; rather, public libraries have been established to facilitate citizens’ access to ideas.”iv
The lack of detailed forum analysis shows how strongly the Supreme Court, especially the plurality, is intent on viewing this case as a funding case, rather than as a case involving the limiting of speech. However, due to the combination of votes of the plurality and Breyer’s agreement with the plurality’s analysis, according to the plain text of the decision, the Court has decided that public libraries as a whole are not a public forum.
The overall impact on libraries of the American Library Association decision is unclear. A few libraries decided to filter all computers. Many libraries have decided not to install filters, either due to financial considerations or due to a strong desire to support the First Amendment. The cost of installing filters has negatively affected some libraries, with the amount received by the government subsidies not making installing filters a sound financial decision. These library decisions have the possibility of preventing many library patrons from being able to use the Internet, vastly limiting the scope of information available. Other libraries have decided not to receive the subsidy as a protest. Most, if not all, of these libraries will continue to provide Internet access to their patrons, with the foregoing of the subsidy having only a minor financial impact. It remains to be seen if there is an economic or locality differential between libraries that accept and do not accept the subsidy.
It remains to be seen if the addition of filters will indeed prevent library patrons (and staff) from viewing pornography, or even obscene materials or material that is harmful to minors. Perhaps it will. Nevertheless, it is much more likely to prevent library patrons and library staff from viewing acceptable – by any standard – material, much of which they will not ever even know has not been viewed. Libraries can avoid this problem by wisely choosing filters that are minimal, showing sites are blocked, and disabling them permanently for staff computers.
Since the Supreme Court’s American Library Association decision, an additional level of complexity has been added by the action of several states to enact or consider legislation of “mini-CIPA”s. The state legislation often goes further than simply following the Supreme Court’s interpretation or copying the language of CIPA by adding additional conditions and terms for library Internet access. Therefore, the issues of preemption will likely be decided by courts in the future.
The Supreme Court has left librarians in the difficult position as the arbiters of legality, leaving them to determine whether patrons’ activities (or their own activities) are within the realm of a legal purpose, allowing for the removal of filters. Most of the state legislation building on American Library Association requires a demonstration of “bona fide research or other legal purpose” by a patron to have the filters disabled. The Supreme Court avoided the issue of what is “bona fide research” by impliedly focusing on the “or other lawful purpose” – requiring librarians to disable filters by adults on request.
The Supreme Court has recognized the difficulty for libraries to determine “bona fide” research – to do so would be near impossible to determine even with a legal description. American Library Association’s plurality has been wary of direct oversight of librarian patrons’ research, stating that the role of librarians should not be transformed “from a professional to whom patrons turn for assistance into a compliance officer whom many patrons might wish to avoid.” Librarians will need to walk a careful line – between the possibility of intruding into the research questions of patrons and insuring full compliance with the American Library Association decision, the federal standards for CIPA compliance, and the new state laws.
An additional issue raised by the court’s opinion is whether libraries – and their materials are truly not public forums. It is highly unfortunate that the Court declined to clarify this situation for the many libraries that will now have to navigate the fine line between protecting First Amendment rights and following the American Library Association decision.
JUSTICE DEPARTMENT: Are Libraries a threat to safety?
Library Awareness Program
Librarians and libraries have reason for concern with unwanted government interference with libraries. Sometime before the 1980s, the Federal Bureau of Investigation (FBI) began its unofficial “Library Awareness Program,” which was never officially authorized by Congress. The scope of the Library Awareness was vague, with the program having no official title; instead, it is commonly known as the “Library Awareness Program” because that is what the F.B.I. told librarians their authority was from.
In 1987-89, due to pressure by the library community, including Freedom of Information Act requests, the FBI admitted that it had the “Library Awareness Program” in which FBI agents would ask library employees about library use by “suspicious looking foreigners” and often ask the employees to help monitor the reading habits of these persons, including viewing library circulation records. According to Herbert N. Foerstel’s Surveillance in the Stacks: The FBI’s Library Awareness Program, the FBI’s stated purpose was to “recruit librarians as counter intelligence ‘assets’ to monitor suspicious library users and report their reading habits to the FBI.”v Both public and academic libraries were targeted and the total number of libraries is unknown, though much of the efforts focused on the New York City area.
While there has not been any known reason for the Library Awareness program, government officials have claimed that it has been useful. In 1989, James H. Greer, at the time the Assistant Director of the F.B.I., claimed in a Congressional hearing that there is justification for the Library Awareness Program, but due to its classified nature, it cannot be revealed.vi
Not only were libraries targeted, but also over 250 people who had objected to the requests under the Library Awareness Program became the subject of FBI checks after the disclosure of the program. In response to the program, the American Library Association and library directors focused on training staff to respond appropriately to government inquiries. All states passed legislation to protect patron records, except for Hawaii, Kentucky, and Oregon. The passage of laws did not stop the FBI from trying to view library patron records, and agents sometime claimed that the state statutes did not apply to their searches.
The Library Awareness Program has been described in Ronald Kessler’s The Bureau: The Secret History of the F.B.I. as a “ham-handed effort that betrayed insensitivity to the fact that libraries are symbols of Americans’ First Amendment rights. The idea of government agents scrutinizing the reading material of library patrons was chilling.”vii The FBI has not publicly disclaimed the Library Awareness Program and may have continued the program without pause. The Program may indeed still be continuing.
Reader Beware: Patriot Act Riles an Unlikely Group: The Nation’s Librarians
In response to the terrorist attacks on the United States, Congress quickly passed a bill granting greater powers to law enforcement, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001. The USA PATRIOT Act includes several sections that can apply to libraries, including provisions that can allow increased government surveillance, thereby affecting library confidentiality. Before the USA PATRIOT Act, the federal law enforcement, such as the FBI, could get library-borrowing records by complying with state law and by specifically referring to individual patrons. In addition, they needed to use the specific patron records for evidentiary, not investigative purposes. Under the USA PATRIOT Act, the FBI can go into a public library and ask for the records on everybody who ever used the library, or who used it on a certain day, or who checked out certain kinds of books.
After the passage of the USA PATRIOT Act, a great groundswell of civil liberties groups and individuals criticized its passage. One of the largest groups of critics was librarians, led by the ALA, viewing the USA PATRIOT Act as “an assault on such basic civil liberties as reading privacy and intellectual freedom.”viii In response, the Justice Department put forth a public relations campaign, including a speaking tour from John Ashcroft, the United States Attorney General, and a website.
In response to the concerns of librarians and others, John Ashcroft dismissed these concerns, as inciting “hysteria,” accusing librarians of being “duped” by liberals. An FBI agent who was giving a presentation to the Kentucky Library Association described the dichotomy between the government view and librarians’ view of the situation: “How much protection do you want to give to your patrons, and how much protection do you want to give to your country?”ix
In addition to John Ashcroft’s speaking tour, the Justice Department also created a website to defend the USA PATRIOT Act. According to Dispelling the Myths: Dispelling some of the Major Myths about the USA PATRIOT Act, “The Patriot Act specifically protects Americans’ First Amendment rights, and terrorism investigators have no interest in the library habits of ordinary Americans.”
The site makes several interesting claims about the role of libraries: that they have been and could continue to be the hiding place for terrorists. The site states, “Historically, terrorists and spies have used libraries to plan and carry out activities that threaten our national security. If terrorists or spies use libraries, we should not allow them to become safe havens for their terrorist or clandestine activities.” This view of libraries follows the views contained in the Library Awareness Program – that librarians are dupes and that libraries are dangerous places. The idea of libraries as dangerous places with inappropriate materials also follows the ideas of book censorship in Pico and Internet limitations in American Library Association.
A controversy exists about the actual number of times the USA PATRIOT Act has been used in libraries. The number of times the USA PATRIOT Act has been used to enter a library is unknown. While not specific to the USA PATRIOT Act, the F.B.I. has contacted about 50 libraries nationwide in the course of terrorism investigations. According to a memo by Attorney General John Ashcroft to FBI Director Robert S. Mueller III, the number of times the section related to libraries, Section 215, has been used is zero.
Whether the Justice Department is being wholly honest concerning the use of the USA PATRIOT Act is still a concern for librarians. However, various library surveys have indicated that the PATRIOT Act has been used, such as Leigh Estabrook’s survey of Illinois libraries.
While the actual impact of the USA PATRIOT Act is not known, the Justice Department is facing librarians who are not backing down from their protests. After the earlier infamous Library Awareness Program, librarians may not relent down until the repeal of the USA PATRIOT Act. In addition, by protesting against this government action, libraries and librarians have joined in a large civil libertarian protest in ways that librarians previously did not, such as the large group of libraries and librarians that supported the voluntary use of filters, splitting the profession. The majority of the library profession seems to be strongly against the USA PATRIOT Act. However, this is not to say that all librarians are against the USA PATRIOT Act.
The active protests against the USA PATRIOT Act are continuing, but so are more creative actions. Librarian Jessamyn West has posted “Five Technically Legal Signs for Your Library” to be used in public libraries, signs that help to inform library patrons that their patron records may be reviewed by the FBI and the most creative one, a sign that states “The FBI has not been here” with small lettering at the bottom “watch closely for the removal of this sign.” Librarians have also appeared in at least one political cartoon as heroic for opposing the USA PATRIOT Act.
Considering Congress’ recent push to expand the powers of the original USA PATRIOT Act, librarians and other opponents of the PATRIOT Act will have quite a fight to ensure the confidentiality of library transactions, both checkout records and use of the Internet in the library.
The United States government has alternated between viewing libraries as purveyors of high culture and viewing them as dangerous places. Much has changed since the time of Brown when library controversies concerned silent protest to the present when controversies revolve around “pornography” in the library and government access to library records. However, many of issues surrounding the role of libraries remain similar, such as: What can people do in a library and what items should a library collect? Who gets to decide?
With the struggle over filtering and the USA PATRIOT Act, librarians have taken an active role in defining what they believe to be the role of libraries. According to librarian.net, the author of the USA PATRIOT Act, Viet Dinh, “said what he learned from the debate over the Act was, “Don’t mess with librarians.” Whether this apocryphal story is true or not, librarians are taking a more active role to define the boundaries of librarianship, in holding with the ideals held in the American Library Association’s Library Bill of Rights – that libraries should contain materials that present all points of view.
Libraries have become the epicenter of a space for public discourse, through library materials and library meeting rooms. Hopefully, libraries will continue to find ways to serve their patrons in regards to this responsibility. After American Library Association, which seems to exclude libraries from being considered government-owned places of public discourse and equates the viewpoint of libraries across the United States with those of Congress by focusing on funding, it will be increasingly difficult for libraries to participate in the free exchange of ideas.
i Herbert N. Foestrel, Banned in the U.S.A: A Reference Guide to Book Censorship in Schools and Public Libraries 64, 64-100 (1994). <back to text>
ii The Mainstream Loudoun case consists of two different ruling on the same facts. The final decision, Mainstream Loudoun v. Board of Trustees, 24 F. Supp. 2d 552 (E.D. Va. 1998) (Mainstream Loudoun II) was released on November 23, 1998. In the earlier ruling, issued on April 7, 1998, Mainstream Loudoun v. Board of Trustees, 2 F. Supp. 2d 783 (E.D. Va. 1998) (Mainstream Loudoun I), the plaintiffs’ First Amendment claims were recognized. <back to text>
iii Kreimer, 958 F.2d at 1259. <back to text>
iv Bernard W. Bell, Filth, Filtering, and the First Amendment: Ruminations on Public Libraries’ Use of Internet Filtering Software, 53 Fed. Comm. L.J. 191, 205 (2001). <back to text>
v Herbert N. Foerstel, Surveillance in the Stacks: The FBI’s Library Awareness Program (2001). <back to text>
vi F.B.I. Counterintelligence Visits to Libraries: Hearings Before the Subcomm. on Civil and Constitutional Rights of the Comm. on the Judiciary, 100th Cong. 121 (1989) cited in Kathryn Martin, The USA Patriot Act’s Application To Library Patron Records, 29 J. LEGIS. 283, 289 n34 (2003). <back to text>
vii Ronald Kessler, The Bureau: The Secret History of the F.B.I.(2002). <back to text>
viii June Kronholz, Reader Beware: Patriot Act Riles An Unlikely Group: Nation’s Librarians, Wall Street Journal, 28 October 2003, A1. <back to text>
ix Id. <back to text>