Class 3: Libraries as First Amendment Actors (2017/09/21)

Class Preparation:

  1. NEWS – find a couple of pieces of news; post links & note in class bulletin board BY MONDAY, and raise the issue for discussion in class. This is standard each week. 
  2. Explore the ALA Intellectual Freedom page. There are newsletters & other information of potential interest. http://www.ala.org/advocacy/intfreedom
  3. READ professional organization policy materials listed below. Consider the discussion questions on ALA policies and post in the course Moodle about whether you agree with all these, take issue with some, see potential problems with them, or have any other ideas about these materials. If you have other organizations you’re interested in, or aware of, please post about their intellectual freedom guidelines and policies.
    1. SAA: Core Values Statement & Code of Ethics, https://www2.archivists.org/statements/saa-core-values-statement-and-code-of-ethics
    2. ALA core materials:
      1. Library Bill of Rights
      2. Universal Right to Free Expression
      3. ALA Code of Ethics
      4. Libraries: An American Value
    3. ALA materials particularly pertinent to minors:
      1. Access for Children & Young Adults to Nonprint Materials
      2. Access to Library Resources & Services for Minors
      3. Access to Resources & Services in the School Library
      4. Internet Filtering
    4. ALA interpretations regarding collections and challenges:
      1. Diversity in Collection Development
      2. Evaluating Library Collections
      3. Expurgation of Library Materials
      4. Labeling Systems
      5. Rating Systems
      6. Challenged Resources
      7. (There are more at http://www.ala.org/aboutala/governance/policymanual/updatedpolicymanual/section2/53intellfreedom#B.2.12 but this is a good cross section of the major ones. Please feel free to read and write about any others.)
  4. Read Lester Asheim, “Not Censorship But Selection”, Wilson Library Bulletin, Sept. 1953, v.28, pp. 63-67. Available at http://www.ala.org/advocacy/intfreedom/NotCensorshipButSelection . Post some thoughts to the class moodle — if there’s not a discussion thread about Asheim yet, start one; if it’s already been created, please add to it.
  5. READ library and school censorship cases
    1. Student speech. Tinker was the high-water mark; where have student speech rights gone since? Revisit Tinker and then read one of:
      • Bethel v. Fraser, 478 U.S. 675 ((1986) (student speech: raunchy speech)
      • Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) (student speech: journalism class newspaper)
      • Morse v. Frederick, 551 U.S. 393 (2007) (student speech: “bong hits for jesus”)
    2. Optional: Parents’ rights to control their children’s education and religion, versus children’s rights to have an education: Wisconsin v. Yoder, 406 U.S. 205 (1972) (First Amendment rights of parents to keep kids out of school. Read the majority opinion and the Douglas dissent.)
    3. Censorship in school libraries: Read Pico and two of the lower court cases
      1. Pico v. Board of Education, Island Trees, 457 US 853 (1982)
      2. Read two of the lower court cases:
        • Minarcini v. Strongsville (Ohio), 541 F.2d 577 (6th Cir. 1976) (offending school board; removal of Vonnegut & Heller from curriculum & school library)
        • Campbell v. St. Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995) (strangling minds; removal of book on voodoo from junior high library)
        • Right to Read Defense Committee v. School Committee of the City of Chelsea, 454 F. Supp. 703 (D. Mass. 1978) (removal of book of poetry from school library)
        • Case et al. v. Unified School District No. 233, Johnson County, Kansas et al, 895 F. Supp. 1463 (D Kan. 1995) (removal of ”Annie on My Mind” from school libraries)
        • Counts v. Cedarville School District, 295 F. Supp.2d 996 (W.D. Ark. 2003) (restrictions on Harry Potter in school libraries)
  6. DISCOVERY / WRITING:
    1. Find a library materials challenge policy (public is probably easiest). Analyze its strengths & weaknesses. Post policy and analysis in the class moodle. 
    2. Find information about a book or other material that has been challenged in a public library in the recent past. In the class moodle bulletin board, write a post (1) describing the book; (2) explaining, as sympathetically as you can, the rationale for censoring the book; (3) identifying any ALA policy or policies that deal with this rationale, and explaining how these apply; and (4) whether you think the ALA policy is sufficient, correct, necessary? 
    3. Browse Wikipedia’s entries on some First Amendment cases. Edit your wikipedia user page and make a list of any entries that you think could use improvement. 
  7. Class Project: You should be thinking about the topics for your class project!

Topics Covered:

  1. Class Business.
    1. Reading cases getting any easier? Any legal terms / concepts confusing?
    2. The materials challenge scenario is due next week. Any questions?
    3. Guest speaker next week. How to prepare for & treat guest speakers.
  2. News.
  3. Lecture / Discussion:
    1. The Practical & Constitutional Benefits of Procedure & Policy. Discussion questions:
      1. What did you think of the ALA “library bill of rights interpretations” you read? Was anything hard for you to accept?  Minors? Labeling? Rating? Shelf placement?
      2. How do you think Asheim affected your thoughts / impressions of the policies?
      3. What did you think about the actual policies you read? Any examples of policies that were, in your view, inadequate? (and how?) Any examples of policies that you thought were well-done?
      4. How did you feel putting yourself in the shoes of a challenger?
    2. Workshop: Policy Writing. Form groups of groups of THREE people and, based on your experiences reviewing policies online, lay out what you think are the most important elements of material challenge / collection development policies. Discussion of hypotheticals to follow.
    3. First Amendment substantive law.
      1. progression of student speech cases from Tinker, to Bethel, to Hazelwood, to Morse
      2. school library censorship cases: PicoMinarcini and CampbellChelseaCaseCounts.  
      3.  Comparing the parties in school libraries. Students, teachers, administrators / officials, parents, librarians / libraries. Librarian First Amendment rights in collection development. Teacher First Amendment rights in establishing curriculum. Student speech rights in accessing information. Administrator speech rights? School Board speech rights? Speech rights of “the public” via elected officials?
      4. Wisconsin v. Yoder. Thoughts about positive rights for students / children?
    4. First Amendment & Constitutional Law basics – review & new concepts
      • District versus appellate versus Supreme Court
      • First Amendment standards of review.
        1. Strict Scrutiny: Compelling government interest; narrowly tailored; least restrictive means. Strict in scrutiny, fatal in fact.
        2. Intermediate Scrutiny: Important (or substantial) government interest; means that are substantially related to the end.
        3. Rational Basis Review: Legitimate government interest; means that are rationally related to the end. Modern trend: “Rational basis with bite”. 
      • Analysis of legal questions: (F) IRAC method.
        1. Facts
        2. Issues (legal issues)
        3. Rules (legal rules)
        4. Analysis (applying rules to the facts)
        5. Conclusion.
      • First Amendment analysis. Ask these questions to remind yourself of any relevant doctrines or facts.
        1. Government action? Any other statutes?
        2. Who are the relevant speakers? (government employees; military; students; prisoners)
        3. What’s the content of the speech? (political, religious, commercial; restricted as obscenity, harmful to minors, false advertising, defamation, threats, hate speech, etc.)
        4. Is it a time place manner restriction, or in a particular medium (broadcast?, etc.), in a government forum, or is it expressive conduct?
        5. What is the restriction? (Could trigger prior restraint doctrine; vagueness, overbreadth; etc.)
      • Prior restraint doctrine. Restraint on speech before it happens is almost never okay!
      • Vagueness & Overbreadth doctrines. Can’t be too vague because people don’t have notice of what the law is. Can’t be overbroad either, which sweeps in protected as well as regulable conduct. NB: Vagueness can chill protected speech, leading to overbroad effects.
      • Discretion – unfettered discretion, standardless discretion
      • Public forum doctrine: Public forum; limited public forum; private forum.
        • Public forum aka open forum. Traditional public forums (Boston Common) and designated public forums (a nontraditional public forum, opened up to public discourse). Content-based restrictions must pass strict scrutiny; time place & manner are okay. Viewpoint-based restrictions almost never okay.
        • Limited public forums. Government spaces designated for particular uses; e.g., meeting rooms open to reservation by the public, or community bulletin boards. Content-based restrictions must pass strict scrutiny; time place & manner are okay. Viewpoint-based restrictions almost never okay.
        • Nonpublic forums. Not open to public expression. (Note: People who are allowed there may have speech rights, but those would be based on status, speech, etc.) Content-based restriction okay; viewpoint based restriction should not be okay, although in practice this is hard to enforce.
      • Viewpoint & Content neutrality.
      • Standing, and First Amendment standing (chilling effects). Student Speech. School Library Censorship. Public Library Censorship.