Library exclusion of books

[Volokh, Eugene]

    (1)  Let me note again that it's not clear whether even
viewpoint-based removals are actionable, given the absence of a majority
in Pico (at least setting aside the overtly partisan rather than just
viewpoint-based actions, such as the hypothetical of a "Democratic
school board, motivated by party affiliation, order[ing] the removal of
all books written by or in favor of Republicans").  I agree that they
might be actionable, but "might be" is all that can be said.
 
    (2)  Say a Klansman brings his large collection of books on why
blacks, Jews, etc. are inferior.  Is it really the case that a library
has a constitutional obligation to accept the collection, or even a
significant part of it, even if it does routinely accept other books,
and then display it on the library shelves and facilitate its
distribution to patrons?
 
    (3)  As to "racier material," can it really be the case that if
someone contributes his Playboy collection, the library has a
constitutional obligation to shelve it the same way that other magazines
are shelved?  Or is it the case that Playboy is too racy, but such an
obligation does exist as to less racy works?
 
    My sense is that given the inherent discretion that the library
exercises in choosing which books to carry -- even if it normally
accepts most donations from members of the public, it surely is more
picky in deciding what to buy, which would likely constitute the bulk of
its collection -- a library is entitled to say that its shelving a book
is in some measure an imprimatur, of the book's general worthiness even
if not of every assertion that the book makes.  If that's so, then it
seems to me that viewpoint-based selection criteria would itself be
constitutional.
 
    Finally, I would hope that all this is even more clear as to the
children's collection in a library, whether a school library or a
general public library.
 
    Eugene


________________________________

	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Theodore Ruger
	Sent: Thursday, September 11, 2008 10:44 AM
	To: CONLAWPROF at lists.ucla.edu
	Subject: RE: Banning Books
	
	
	
	Moreover, I don't think that library discretion is as
unconstrained (particularly when it comes to not buying books) as these
posts suggest.  At my local public library people often request that the
library acquire certain titles, and, budget contraints permitting, the
library frequently does so.  A public library which routinely honors
such requests, but rebuffs my requests (hypothetically speaking, of
course) to acquire racier material, or material of a particular
political stripe, would have engaged in official action that might be
actionable, no?
	 
	Ted

________________________________

	From: conlawprof-bounces at lists.ucla.edu on behalf of Mark Graber
	Sent: Thu 9/11/2008 1:31 PM
	To: CONLAWPROF at lists.ucla.edu
	Subject: RE: Banning Books
	
	

	At the most general level, I suspect general agreement exists
that a) the government may participate in the marketplace of ideas (hard
to see how this could be avoided in some instances), but that b) the
government may not unduly dominate the marketplace of ideas.  The phrase
"unduly dominate" is intentionally vague, because that is where
constitutional tensions arise. 
	
	The difference between "book banning" and discretion may have a
certain progressive flavor.  From my perspective, professional choices
(the librarian) should be given some leeway, so I trust the librarian
more than local politics to choose appropriate books.  If you lack my
sometimes blind faith in expertise and deep suspicions of popular
democracy, not much difference exists.
	
	MAG
	
	>>> "David Bernstein" <DavidEBernstein at aol.com> 09/11/08 1:23 PM
>>>
	To turn this into a constitutional law issue, I've never quite
understood
	the following.  A town has a public library.  The librarian gets
to decide
	which books are available, and to whom.  The librarian declines
to buy
	Playboy or anything racier, restricts books with explicit sexual
content to
	the young adult and adult sections, and turns down a donation of
racist
	books aimed at children.  No problem.
	
	The problem allegedly arises when local citizens get together,
ask the city
	council to tell the librarian to remove Playboy from the
shelves, restrict
	books with explicit sexual content to mature readers, and remove
children's
	books with racist content from the shelves. 
	
	The librarian is engaging in "discretion."  The citizens are
asking for
	"book banning."  I don't follow. 
	
	David
	
	
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