Libraries, the First Amendment, and Cyberspace: What You Need to Know - PDF
نویسندگان: Robert S. Peck
خلاصه: Too often misinformation about free speech is circulated as if it wereauthoritative. The final straw for me and the inspiration for thisbook was a panel discussion at a state library association convention.There, as a member of the audience, I was treated to a confidently ren-dered but distorted description of First Amendment law as it applies topublic libraries. As a legal matter, the speaker said, obscenity is some-thing you know when you see it. This was decidedly wrong as a state-ment of the law, and I was unable to await my own scheduled talk laterthat day. I stood up during the question period and explained what theU.S. Supreme Court had actually said about obscenity and how theConstitution requires substantial procedural safeguards to be followedbefore a librarian may adjudge material obscene and take the matter tocourt. In defense, the panelist, a nonlawyer, justified her statements asbased on what her city attorney had told her.Of course, few city attorneys have much experience with FirstAmendment law. Their loyalties may not run to civil liberties as much asto whatever powers hold sway locally. In such instances, libraries arestuck with advice that has a more political than legal basis. For toomany who provide that advice, the need to avoid controversy over-whelms fidelity to the law. Such political considerations, however,should not be part of the constitutional calculus—for the reasons toknuckle under to would-be censors are infinite and can only expandwith each new concession. The result of such a standard operating pro-cedure would then be an abandonment of the library’s very purpose andmission: to assist in the diffusion of knowledge.vI N T R O D U C T I O NNeither ignorance of the law nor frustration over its complexity oughtto deter compliance with the principles it sets out. Even though the law isfilled with subtle touchstones, guidelines, and three-part tests that courtshave difficulty applying, there are some basic and unimpeachable tenetsthat all can understand and act upon. Librarians and library policymak-ers, dedicated as they are to providing access to information, need an ac-curate basis upon which to base intelligent and legally appropriatepolicies about Internet access, as well as the other issues that librariesoften face. This book aims to provide that foundation.The development of constitutionally informed policies can ease someof the conflict that is bound to arise. To be sure, it will not end that con-flict because speech, the written word, and pictures have an unquench-able capacity to generate controversy. It is almost a guarantee thatwhatever policies are eventually adopted will still be matters of greatcontention, activating factions who object to the materials thus madeavailable or unavailable to the community. It is indisputable that li-braries have become the front lines in modern free-speech wars. Still, awell-conceived policy can absorb some of the pain that accompaniesthat unfortunate reality and make all the difference in the litigation thatmay well follow.The role of libraries at the center in the battle over the nation’s intel-lectual freedoms is a familiar and long-running one. Almost from themoment of inception for public libraries, vociferous debates have en-sued about material that someone or another has deemed inappropriatefor shelving. One of the most enduring controversies over a book in theUnited States has been over Mark Twain’s Adventures of HuckleberryFinn. As far back as 1885, the Concord, Massachusetts, Public Librarybanished the now-classic book as “the veriest trash” and “more suitedto the slums than to intelligent, respectable people.” 1 The book remainsenormously controversial to this day.As recently as October 19, 1998, the U.S. Court of Appeals for theNinth Circuit was forced to rule on yet another attempt to remove thatbook—this time from a mandatory high-school freshman reading list inTempe, Arizona. The court concluded that assignment of the book didnot violate the constitutional right to equal protection of the laws, norcould it be removed because it allegedly contributed to a racially hostilelearning environment.2 Huckleberry Finn has endured more than a cen-tury of controversy with no sign that the hackles it raises will abate.Cyberspace now poses additional challenges for libraries.