Those Pesky Library Exceptions in State Law

Pro-censors have a strong tendency to make overblown claims that one or another book is obscene or pornographic.  By using such terms they are trying to claim that the contents of the challenged book are either 1) legally obscene for everybody, and so the book is not protected by the First Amendment, or 2) are obscene with regard to a minor, and so a minor's access to the book can legally be limited, even if an adult's access cannot be limited.

Most of the challenged books I've reviewed on this blog fall into neither of these categories.  That is, they are neither obscene for everyone nor obscene for a minor.  While parents may find some of those books objectionable for any of a long list of reasons, they're mostly kidding themselves if they think the library is breaking the law by letting their kids read them. 

There are some exceptions, though.  The graphic novel Block Dossier, for example, might meet the definition of "obscene for minors" in some states.  This is the book that resulted in the firing of two desk attendants who deleted an 11-year-old's hold on the book, in Jessamine County, Kentucky.  While the book is protected speech for adults, it might be legal, in some states, to impose restrictions on a child's access to it.

I say in some states because the laws defining and regulating materials that are "harmful to minors" exist mostly at the state level, and no two states are exactly alike in this regard.  While all the state laws I looked at contain some variation of the three-pronged Miller test for defining obscenity, each state uses slightly different language, casts a broader or narrower net, imposes different penalties, and permits different exemptions or exceptions.

It is the exemptions that often cause a problem for the would-be censors.  In some states -- certainly not all -- the law that regulates materials that are obscene for minors has a specific exemption for libraries.  State legislatures sometimes enact such exemptions for a variety of reasons, including a desire to keep the statute enforceable.  That is, they don't want the law to wind up overturned by a court because it ran afoul of the strict protections of Free Speech that apply in libraries.

Not being a lawyer, I find it fairly difficult to rummage through state obscenity laws to see whether they've got library exceptions.  I was pleasantly surprised when I found, entirely by accident, that Wisconsin state law was unusually clear on this point.  Since it's unusually clear, I'll use it as an example.

Chapter 948 of Wisconsin state law defines what is obscene for minors, and imposes penalties for providing such materials to a minor.  It also specifically exempts school and library staff from prosecution, and gives some reasons for doing so.  Below is a portion of that law, which happens to be clear enough even for non-lawyers to get at least a partial understanding:

W.S.A. 948.1 Exposing a child to harmful material or harmful descriptions or narrations

. . . .

(4) Libraries and educational institutions. (a) The legislature finds that the libraries and educational institutions under par. (b) carry out the essential purpose of making available to all citizens a current, balanced collection of books, reference materials, periodicals, sound recordings and audiovisual materials that reflect the cultural diversity and pluralistic nature of American society. The legislature further finds that it is in the interest of the state to protect the financial resources of libraries and educational institutions from being expended in litigation and to permit these resources to be used to the greatest extent possible for fulfilling the essential purpose of libraries and educational institutions.

(b) No person who is an employee, a member of the board of directors or a trustee of any of the following is liable to prosecution for violation of this section for acts or omissions while in his or her capacity as an employee, a member of the board of directors or a trustee:

1. A public elementary or secondary school.

2. A private school, as defined in s. 115.001(3r).

3. Any school offering vocational, technical or adult education that:

a. Is a technical college, is a school approved by the educational approval board under s. 38.50, or is a school described in s. 38.50(1)(e) 6., 7. or 8.; and

b. Is exempt from taxation under section 501(c)(3) of the internal revenue code, as defined in s. 71.01(6).

4. Any institution of higher education that is accredited, as described in s. 39.30(1)(d), and is exempt from taxation under section 501(c)(3) of the internal revenue code, as defined in s. 71.01(6).

5. A library that receives funding from any unit of government.

You can look up Chapter 948 or any other Wisconsin State Law at:
http://www.legis.state.wi.us/rsb/stats.html
The library exemption is at 948.11(4).

SafeLibraries Shows Us Again Why His Information Cannot Be Trusted

In today's post, SafeLibraries chides a Vermont library for the role he claims it played in enabling a convicted sex offender to violate the terms of his probation.  SafeLibraries cites a somewhat vague news article from the Brattleboro Reformer, which describes how the parolee used a library computer to chat with individuals by means of Yahoo Messenger, and how at least one of his chat partners supplied him with some kind of pornography.  The parolee was arrested for violating the terms of his probation.  It is not clear whether or not a crime was committed (other crimes described in the article took place in the past, and the degree to which they had anything -- or nothing -- to do with any library anywhere is not described).

Somehow, SafeLibraries blames the library and the American Library Association, at least in part.  He alleges that "the anything-goes policy of the ALA," created a situation in which the "library is partially at fault for refusing to take action that may have prevented his behavior in the first place."  

But what policy, what filters, what library action would have prevented the parolee's misuse of the computer?  The news article nowhere states that the man visited any pornographic website that would have been blocked by filters. It doesn't indicate that he visited any pornography sites at all.  The article states only that he was engaged in private online chats with like-minded individuals, apparently adults.  Even libraries that implement internet filters usually permit this type of real-time communication. Few internet filters, if any, would trap sending a pornographic image by this means, any more than such programs could determine whether or not a photograph attached to an email message were pornographic (remember that filters work mostly by identifying words and text patterns, and rarely by any analysis of what a photographic image is about).

The fact is that the library's internet use policy looks pretty good.  It expressly prohibits using library computers to view "pornography," a much broader class of material than the more legalistic "obscenity." The library could implement filters, but it doesn't appear that any such filter would have prevented the kind of communication that this parolee engaged in.  Violation of library policy results in the the revocation of a patron's internet privileges, or even general library privileges.  What else does SafeLibraries expect the library to do?  Anything beyond this is the purview of the police department and district attorney's office, not the library.

More than anything else, it is this inability to maintain a balanced perspective that makes SafeLibraries' spin on things so untrustworthy.  He is obsessed with assassinating the character of the American Library Association, and cannot resist spinning a situation that has nothing to do with the ALA, and hardly has anything to do with any library at all, into a deliberately anti-social act by that institution.

One sentence in SafeLibraries' post reveals not only a deep misunderstanding of how the legal system works, but also a large does of paranoia.  Since the sentence speaks volumes, I'll let it speak for itself.

I suggest the parole board consider the library to be under the control of a foreign entity, the ALA, and that control made it an "attractive nuisance" that the perp could not resist and that endangers children.

Global Warmism (sic) and Banned Books Week?

SafeLibraries is quite right, in his Tuesday post, to point out the similarities between Global Warming and Banned Books Week: denying either requires an impressive ability to ignore empirical evidence.

WISSUP No More?

I haven’t paid much attention of late to Ginny Maziarka’s Wissup Blog, since she clearly has changed her focus to non-library issues.  But I see she’s still getting in her digs at the West Bend library with a diatribe in the sidebar of her blog. I don’t know how long it’s been there, but iIt shows she’s learned absolutely nothing from her failed censorship efforts. 

The numbered items in bold are from the Wissup blog.  My response is under each item.
 

1. All materials should be available for all ages (anything goes). Really!

Anything?  I guess it is anything, if you ignore the fact that the library already keeps obscene materials off the shelves entirely, separates materials written for children from materials written for adults, and encourages parents to supervise what their children are reading.

2. National control cannot (and should not) be resisted; therefore, the disturbing value system of the ALA, OIF,WLA trumps local control of the library by the citizens and taxpayers it serves.

“National control,” of course, exists only in the imagination of the paranoid.  The organizations listed are only advisory, and each library makes independent decisions.  Citizens and taxpayers have exactly the same level of control over the local library that they have over any other agency of local government, and by exactly the same means.

3. Young adults are children ages 11 through 17. (Be sure to address your 11 year old in a manner appropos.)

This says nothing substantive.

4. Assisting parents in identifying sexually explicit materials within your library is not important to them.

The question is not whether it’s important, but whether it’s even remotely feasible.  For every five parents there are at least four different opinions about what any given child should or should not be allowed to see, and censors like Maziarka steadfastly refuse to provide tangible criteria to guide such grading of materials.  Why is that the library’s fault or responsibility?  Allowing parents to make their own choices for their own children is the only practical approach.

5. You must stay with your children and read each book he/she checks out to assure they are not entering into the YA Zone, that is, the "Yes to All Zone."

Parenting is work, especially if you’re the type who tries to limit the ideas and information children might find in books.  Calling the YA zone a “Yes to All” zone is a statement of personal values that any parent is entitled to make, but is irrelevant to public policy.

6. ..that if other people's young children (even younger than 11....) are openly reading books of a sexually explicit, graphic nature, say nothing...and by all means, don't stop them from checking them out. You, too, can have an 8-year-old snag "The Joy of Sex" off the shelf right here in your very own library!

Well, yes, as a matter of fact, you should parent only your own children.  When it comes to other people’s children, you should mind your own damn business.

7. ..that porn filters are not required, therefore, none are needed. True loyalty to the many children they serve. After all, we would not want to restrict freedom of speech to those young'uns!

The real stumbling block to the implementation of internet filters on computers used by children is the overreaching of the censors, who invariably try to take advantage of the situation in order to interfere with the Free Speech rights of both minors and adults.  If they would get just a little more practical, let adults be adults, and recognize that even minors have constitutionally protected rights to receive information, something could be worked out to limit children’s internet access to pornography. 

8. ...that organizations such as SafeLibraries, PFOX, PABBIS, and Family Friendly Libraries, that work to protect children from being sexually victimized are not welcome in our community.

Everyone welcomes organizations that actually work to protect children from being sexually victimized, when that goal is not merely empty rhetoric, and when it seems that the organization can actually achieve that goal.  None of the organizations mentioned here fits that description.  The primary goal of all these organizations is censorship first, with children’s safety at best a distant second.  None acknowledge the constitutional limits within which they must operate, therefore none of them can achieve any real-world goals.  And if they cannot achieve any real-world goals, they cannot protect children from anything.  All of these organizations should be resisted, if for no other reason than that they clog the communication channels with disinformation and hinder any real progress on either side of the debate.

9. That the excerpts listed below (WARNING: NOT SUITABLE FOR CHILDREN) are perfectly acceptable for the eyes of children.

As a parent, you should decide what is acceptable to you and therefore to your children.  But you have no right to assume that the whole planet agrees with you.  And by the way, obscenity law requires that books be evaluated “as a whole,” not on the basis of isolated excerpts.

This is a propagan[d]a battle to ensure children retain access to inappropriate mate[r]ial despite the law, common sense and community standards.

Despite what law, exactly?  If your library really is violating some law, then call the police.  If not, then stop making baseless claims. Talk about propaganda: the censors know they’re lying about the “despite the law” part. 

Private Options and the Sincerity of the Censors

One of the larger errors in the thinking of censorship proponents is their failure to distinguish between their private values and public policy.  Any individual is perfectly entitled to define whatever they disapprove of as objectionable, and to take steps to keep such materials out of their personal lives.  They get to choose what books they buy, which movies they go see, what music albums their children can keep at home, and the like.

When it comes to their private choices, we have to give them the benefit of the doubt and assume they're sincere in their beliefs.  But as soon as they try to impose private beliefs on society in general, that sincerity is can, and should, be questioned.  Once they've explored the public options and are told quite clearly that public policy can't or won't accommodate their goals, why do they persist?  The fact is that there are private options that can accomplish what they want to accomplish, at least with regard to their own children.  If they're really concerned with their children's wellbeing, and it's clear that they can't force the public library to do what they want, should they not then pursue those private options?

Persisting in attempts to subordinate public policy to their private beliefs shows that their aim is politics, and not protecting children.  It is a measure of their sincerity, or lack of it, that they continue to try to subordinate the public library to their private  values.

For those parents who want strict control over the values and information to which their children might be exposed in a public library, there are a number of private options:

• Open a private library.  These used to be more common in the US, but have become quite rare, in part because they are very expensive to run.  But if a library is private -- serving only customers who have paid a membership fee -- the library can do whatever it wants.  They can select, remove, re-shelve, label, restrict access to, and filter whatever they want, however they want.  No need for any government intervention or court oversight.  No grounds for claims of banning or censorship.

• Run a private library by mail.  It would still have to be a private membership operation to keep it legal, but would be a lot cheaper than a building patrons could visit (and there are specialized libraries already running like this).  They can put their catalog online and registered customers can check out and return books by mail.  Same freedom from those pesky Free Speech laws as above.

• Operate a private library entirely on-line.  Increasingly, books, music, and video are all available electronically.  Many brick-and-mortar libraries already have many selections they can make available to patrons online.  The technology is well in place to support this, although some legal details are lagging a bit behind.  In spite of this temporary stumbling block, the age of the all-online library has arrived.

• Create an online ratings service.  This has been done, but so far only in a fragmented and scattered sort of way. It could get a lot more formal without a lot of expenditure.  A ratings service could be an online catalog of materials vetted by various groups or organizations.  Contents could be described, and one or more ratings could be displayed for each title. Customer comments could be appended and edited.  Any parent could then check any book of interest against this rating service and make a decision in advance of visiting the public library. Paradoxically, such ratings would be available via internet from computers inside the public library -- they just wouldn't be integrated into the public library's catalog.