by E. Kenneth Friker and James W. Fessler

Last month, the topics of censorship and filtering were addressed. Moving on to the topic of material selection, one of the fundamental principles of the First Amendment is that the government, including your library, may not disfavor speech on the grounds that its content or viewpoint is disagreeable. However, when library material selection is at issue be assured that you and your library staff have broad discretion and necessarily must consider the content of proposed material when making collection decisions. United States of America v. American Library Association, 539 U.S. 194 (2003). The purpose of libraries is to “pursue the worthy missions of facilitating learning and cultural enrichment.”

To fulfill their traditional missions, public libraries have broad discretion to decide what material to provide to their patrons. Although libraries seek to provide a wide array of information, a library’s goal has never been to provide “universal coverage.” Instead, public libraries seek to provide materials “that would be of the greatest direct benefit or interest to the community.” To this end, libraries may collect only those materials deemed to have “requisite and appropriate quality.”

“Courts recognize the importance of material selection and have gone so far as to state that “academic freedom is scarcely fostered by the intrusion of three or even nine federal jurists making curriculum or library choices for the community of scholars” and that “when the court has intervened, the circumstances have been rare and extreme.” Presidents Council, District 25 v. Community School Board No. 25, 457 F.2d 289 (2d Cir. 1972). Thus it is clear that courts do not get involved in library material selection decisions lightly.

Your library may limit its collection in at least four ways:

1. When lawfully required to do so by means of censorship, such as under the Children’s Internet Protection Act or CIPA as discussed last month;

2. By discarding damaged, duplicate or out of date material. Presidents Council, District 25 v. Community School Board No. 25, 457 F.2d 289 (2d Cir. 1972);

3. By removing books that contain factual inaccuracies. American Civil Liberties Union of Florida v. Miami-Dade County School Board, 557 F.3d 1177 (11th Cir. 2009); or

4. By limiting its collection as a result of available shelf space, physical resources and costs. Board of Education, Island Trees Union Free School Dist. No 26 v. Pico, 457 U.S. 853, 909 (1982).

The four criteria just discussed were challenged by patrons on the grounds that the library’s decision violated the patrons’ First Amendment rights. There may be other criteria your library can consider when deciding which materials to include in your collection. However, in each of the four cases above, the court agreed with the library’s reasoning and held that no First Amendment violation occurred.

Finally, you may be wondering whether your library can require that underage patrons obtain parental consent before checking out materials. Requiring such parental permission before checking out books constitutes a First Amendment violation. Counts v. Cedarville School District, 295 F. Supp.2d 996 (W.D. Ark. 2003). In Counts, a school district ordered its libraries to pull all of the copies of the Harry Potter series and place them behind the counter so that students could not pick-up and read or check out the books on their own. The district changed its policies so that students could only check out the books after they had a permission slip signed by their parents. The court struck down this requirement, holding that it violated the First Amendment. The court reasoned that the library policy was unconstitutional as a library cannot prevent children from choosing to be exposed to ideas regardless of whether they are secular or religious.

As you can see, the First Amendment shapes the ways in which your library may censor information your patrons seek, and the ways in which your library may select which materials to offer and who may access those materials. Next month, we will address patron appearance and behavior policies.

E. Kenneth Friker and James W. Fessler are partners with Klein, Thorpe and Jenkins, Ltd., a law firm with offices in the Civic Opera Building at 20 North Wacker Drive in Chicago and at 15010 S. Ravinia in Orland Park. The firm concentrates in the representation of local libraries, Library Districts and Library Systems, as well as other local governmental units.

Published April 21, 2010 in vol. 4, iss. 8 [View]