Library exclusion of books

Sat Sep 13 08:43:46 PDT 2008

Professionally run libraries have written selection policies that cover most if not all of these issues, precisely to try to resolve many if not all these questions. Professional librarians revise these policies regularly (or should) in accord with changes in the community, changes in technology, the budget, changes in other libraries on which they rely and with which they cooperate, for example, and other considerations. So, one would expect that the person making selection, acquisition, withdrawal, and gift and donation decisions would be making them in accord with the selection policy, and note that that person might not be the director of the library, although the director would ultimately be responsible. Also note that where to catalog a book and where to shelve it aren't necessarily part of the selection process, although these policies are all related. 

Christine Corcos
LSU Law Center

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From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 9/11/2008 12:55 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Re: Library exclusion of books

    (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

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	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

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	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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