In the United States, public libraries are established and governed under state law. But to develop and defend ethical collections and programming, library leaders need to understand the broader Constitutional context in which they operate.
The policies that govern public libraries are the most local expressions of the Constitution and state and federal law. However, public libraries are not mentioned in the Constitution—or the Bill of Rights. Interestingly, the Constitution mentions the post office, and Congress is empowered to make laws about copyright and intellectual property, but libraries—even the Library of Congress and the National Archives—are not Constitutional institutions. While libraries rely on the First Amendment to support their role as limited public forums and to guarantee access, they are not created by it. Federal law only has a glancing interest in public libraries.
Instead, like so much of our civic infrastructure, public libraries are Tenth Amendment institutions, their establishment and government reserved to the states. While several states, like Michigan and Rhode Island, provide for public libraries in their state Constitutions, most rely on library laws rather than their founding documents. In Texas, district libraries are set up “for the dissemination of general information relating to the arts, sciences, and literature.” In Montana, public libraries exist “to give the people … the fullest opportunity to enrich and inform themselves through reading.” Other states, like Connecticut, do not spell out why public libraries should exist but do detail how the land on which they’re built is acquired and that the library must always be free to use. It is simply understood that public libraries are for the general welfare.
This Tenth Amendment construction means that the future of public libraries is largely determined by their own states’ laws. Each state gets to determine the framework around how library boards are elected, appointed, dismissed, and retained, and whether the library director needs a specific degree or credential. Questions about how to fund local libraries, how they are governed, and what restrictions can be placed on access to collections, programs, and events are answered within each state’s library laws. Privacy laws, confidentiality laws, and sunshine laws are not universal or uniform. In fact, public libraries are so state-specific that the definition of a public library established by the federal Institute of Museum and Library Services (IMLS) is, basically, whatever each state says its own public libraries are.
It is because public libraries only exist within states’ purviews that we are seeing such a patchwork of bills across multiple states. In some, new legislation is extending the rights of readers. In other states, legislatures are enacting bills that restrict access and free expression. Unless a Constitutional right or applicable federal law is violated, legislative fights are in and of individual states. The only time that a conflict between a bad state law and a core constitutional principle is adjudicated is if someone brings a viable lawsuit to federal court. If no one is found to be harmed by a state law that, say, restricts access to certain types of books or limits the ability of public libraries to purchase those titles, then those laws stay on the books, potentially for generations.
We may consider the First Amendment to be the founding document for public libraries because it guarantees the freedom of speech, without which public libraries would not be able to maintain a collection that appeals to anyone other than the majority of readers or the comfort and interest of local elected officials. The First Amendment provides that the public library is considered to be a limited public forum where content and speech of all sorts are permitted and content-based prohibitions must be “narrowly drawn” when there is compelling government interest.
The First Amendment guarantees the right to read and access materials as well as to petition to challenge a book. But the First Amendment guarantees of free speech and free expression are neither absolute nor limitless. Obscene content and harmful content are not protected under the First Amendment. Both the states and the federal government define obscenity and content that is harmful to minors within their criminal laws. In state and federal contexts, convicted offenders face fines and imprisonment for making obscene content available. Because this type of content is illegal, there is no guarantee that a public library can collect obscene content.
Within the bounds of the First Amendment, if a book is judged by the courts to be obscene, it should not remain in the library. If it is not obscene, there is no reason to remove it. If it is not obscene the book is not, in and of itself, a crime. Because the First Amendment is about access, it is fundamentally about collection retention. Books should not be removed for unconstitutional reasons. When a book is removed because the viewpoint, comfort, or taste of a petitioner, the library board, or the library staff supersedes the right of everyone else to access otherwise legal material, that’s unconstitutional.
Fundamentally, the First Amendment says that a book should be kept on the shelf unless it is illegal. But why do we add a book to the public library collection to begin with? If the only reason to put a book into the library is that it is not illegal, then we have a very strange collection. Likewise, if the main reason to add a book to the library is that it is interesting to the majority of readers, then we have a library that excludes minority interests by design.
When we consider why a book should be in the library, why we host a program, or why we put up a display, the library sector has tended to rely on voluntary ethical standards and its professional training as justification for its decisions. Ethical librarianship includes a significant focus on maintaining a diverse, inclusive, and equitable library collection. Ethical professional librarians subscribe to the idea that everyone should have their story available in their library. Some states, like Massachusetts and Illinois, go as far as incorporating the Library Bill of Rights into their state laws. However, these professional ethical statements are also removed easily from states, as we have seen in Montana, South Carolina, Missouri, Texas, Florida, and others.
If public libraries are to maintain collections, host programs, and make displays that go beyond the interest and comfort of the majority, then we need a constitutionally and statutorily sound reason to do the work.
It is important for public library leaders to understand that the First Amendment is not the only Constitutional protector of rights in and through public libraries. Under the application of the Fourteenth Amendment’s Equal Protection Clause, the Civil Rights Act of 1964 protects people from discrimination based on race, color, religion, sex, and national origin. Title II of the Act guarantees the full and equal enjoyment of facilities, goods, and services in places that are open to places of public accommodation. This is why we have desegregated lunch counters, movie theaters, beaches, and public libraries. Title VI requires institutions that take federal funding to be anti-discriminatory in their practices. The courts have ruled that Title VII employment protections extend to gender and sexual identity.
Numerous petitions to remove books have been filed in recent years by people who feel that those books’ stories, characters, authors, or viewpoints are somehow incompatible with or offensive to their own personal beliefs. A petitioner’s personal belief system about race, ethnicity, religion, gender, or sexuality should not be able to drag a book out of the library, but if their opinion aligns with the local majority, they tend to prevail. Unfortunately, the librarian’s professional mandate, which is to maintain a collection that is diverse and inclusive, is often viewed as a matter of opinion on an equal footing with a petitioner’s animus towards minority populations.
While the First Amendment should prevent the unconstitutional removal of a title, a civil rights framework should be used to inform the decision to bring in titles that are not of and by the majority. If anti-discrimination is the law of the land for public libraries, then the relevance of a title to a protected population should provide the statutory underpinnings of a collection development choice. A title may or may not appeal to a reader from a majority population, but that appeal need not inform a choice to have titles by and of a minority group. This extends to all protected classes, whether based on race, gender, sex, or religion. If the title, program, or display is relevant and applicable to that group, then it is a valid item for the library.
Applying Constitutional civil rights and civil liberties provisions to state institutions like public libraries guarantees access and accommodation for all while preventing abuses and overreach by the majority. In our federal system, Tenth Amendment frameworks for public library governance and policy cannot be used to discriminate against people based on identity or against content based on viewpoint. Because the venue for public libraries is so state-specific, advocates and stakeholders must be involved in the legislative and rules-making process in their states. State library laws should affirm the principle of inclusive access to these uniquely local institutions.
10.1146/katina-110524-1
