The general principles of the First Amendment are designed primarily for those circumstances in which the government attempts to regulate the free speech rights of individuals in the larger society. Those principles may apply differently in special contexts, such as public libraries. In public libraries, for example, the government has limited resources. It cannot buy all books. It must therefore make choices. In making those choices, it inevitably must decide which books are most necessary and most appropriate for the particular collection.
This gives the government, in the form of the library board or the librarian, the authority and the responsibility to make decisions based on content that it could not make in more general regulations of public discourse. For example, although the government cannot constitutionally prohibit all books on any subject but art history, it can constitutionally create a library dedicated only to art history. And although the government cannot constitutionally prohibit all books that are not appropriate for children, it can constitutionally create a library dedicated only to children's books.
Constitutional limitations Edit
On the other hand, even a public library is not free to engage in "viewpoint discrimination." For example, in Board of Education of Island Trees Union Free School District v. Pico, the members of a public school board of education decided to remove from the school library certain books, including "Soul on Ice" by Eldridge Cleaver and "Slaughterhouse Five" by Kurt Vonnegut, because they were "improper fare for children." The board members described the books as "anti-American, anti-Christian, anti-Semitic, and just plain filthy." The U.S. Supreme Court held that this action would violate the First Amendment if the intent of the board members was to deny "access to ideas" with which they "disagreed."
An important reason for granting a public library broad (but not absolute) discretion to decide which books to include in its collection is the fact of limited resources. This fact is not present in the same way in the Internet context. To the contrary, in the Internet context, where filters may be at issue, it will generally cost more to reduce rather than to expand the "collection." It is unclear how this will affect the constitutional calculus.
Another facet of the public library situation concerns the appropriate role of parents. For example, although a public library cannot constitutionally select which books it will make available to students on the basis of whether the library officials agree or disagree with the ideas presented in particular books, it presumably could decline to lend books to minors (at least younger minors) without parental permission, as long as the library acts in a content-neutral manner itself. That is, a library could insist on parental permission for younger minors to borrow any book from the library, but probably could not limit this requirement only to, for example, "racist" books or books about Scientology.
- ↑ 457 U.S. 853 (1982) (full-text).
- ↑ For example, in Mainstream Loudon v. Board of Trustees of Loudon County, 2 F.Supp.2d 783 (E.D. Va. 1998) (full-text), the court held invalid a public library's use of filters (for all patrons) as an unconstitutional prior restraint. More generally, opponents of filtering in public libraries have argued that the use of filters constitutes an unconstitutional prior restraint because the government is technologically preventing the censored material from even reaching potential users. They argue that this is prior restraint because the filter relies not on the threat of criminal punishment after the speech takes place, but on an actual blocking of the speech itself. For relevant U.S. Supreme Court decisions, see Freedman v. Maryland, 380 U.S. 51 (1965) (full-text), holding that a movie censorship board that makes decisions about what may or may not be shown publicly is constitutionally permissible if the board is screening for obscenity, but only if the board is required immediately to go to court to obtain a prompt judicial determination that the movie is in fact obscene; and Southeastern Promotions v. Conrad, 420 U.S. 546 (1975) (full-text), holding that a city manager would be required to abide by the Freedman v. Maryland requirements.
Youth, Pornography, and the Internet, at §4.1.6.