Library Board Endangers First Amendment Rights

In 2019 Maia Kobabe pub­lished a graph­ic nov­el for teens, Gender Queer, a Memoir, to crit­i­cal acclaim.  While her book racked up awards, in 2021 it became the most chal­lenged book in American libraries.  Efforts around the coun­try to ban books have soared in the past sev­er­al years.  The Board of Trustees at the Clark County Public Library has jumped on the bandwagon. 

At their November meet­ing, four board mem­bers raised con­cerns about Gender Queer.  At the December meet­ing, rather than ban­ning the book out­right, the board vot­ed 4–1 not to allow any­one under 18 years of age to check it out with­out parental con­sent.  The vote took place in spite of the board attorney’s warn­ing that restric­tions are a form of cen­sor­ship, and that legal opin­ion has held that a minor’s access to library mate­r­i­al is a First Amendment right.

The board’s action put the library in the posi­tion of “try­ing to pro­tect our chil­dren.”  But sim­ply stat­ed, that’s not their job.  Given the First Amendment rights of chil­dren, the library is not autho­rized to pro­tect them from mate­r­i­al some may deem unsuit­able.  That is the right and respon­si­bil­i­ty of par­ents.  That has been the writ­ten pol­i­cy of the Clark County Public Library for many years.  It is also the pol­i­cy of the Kentucky Department of Libraries and Archives (KDLA advis­es Kentucky’s pub­lic libraries, its direc­tors, staff, and trustees).

Several board mem­bers tried to make the American Library Association (ALA) the bogey­man. That is unfor­tu­nate.  ALA is the old­est and largest library asso­ci­a­tion in the world.  For more than 140 years, ALA has been a trust­ed voice for libraries, advo­cat­ing for the pro­fes­sion and the library’s role in enhanc­ing learn­ing and ensur­ing access to infor­ma­tion for all. 

It was stat­ed over and over again that ALA believes chil­dren should be allowed to read any book in the library.  That is not the ALA posi­tion.  As laid out in their “Library Bill of Rights,” “A person’s right to use a library should not be denied or abridged because of ori­gin, age, back­ground, or views.”  Thus, giv­en the First Amendment rights of chil­dren, the library is not autho­rized to pro­tect them from mate­ri­als some con­sid­er unsuit­able.  That is the right and respon­si­bil­i­ty of parents. 

Again, accord­ing to ALA, it is “the respon­si­bil­i­ty and the right of all par­ents and guardians to guide their own children’s use of the library and its resources.  Libraries and their gov­ern­ing bod­ies can­not assume the role of par­ents or the func­tions of parental author­i­ty in the pri­vate rela­tion­ship between par­ent and child.  Libraries and their gov­ern­ing bod­ies shall ensure that only par­ents and guardians have the right and the respon­si­bil­i­ty to deter­mine their children’s—and only their children’s—access to library resources.”

At the December meet­ing, one board mem­ber repeat­ed­ly point­ed out that accord­ing to our own library pol­i­cy, par­ents are respon­si­ble for their children’s use of the library, not the board.  The pol­i­cy was ignored.

In an attempt to pro­tect them­selves from a First Amendment chal­lenge, four board mem­bers con­curred that Gender Queen con­tained explic­it sex­u­al mate­r­i­al, and there­fore they had a duty to restrict its access on the grounds that it’s obscene. 

The U.S. Supreme Court estab­lished a 3‑part test for obscen­i­ty in 1973:

“(a) the dom­i­nant theme of the mate­r­i­al tak­en as a whole appeals to a pruri­ent inter­est in sex;

(b) the mate­r­i­al is patent­ly offen­sive because it affronts con­tem­po­rary com­mu­ni­ty stan­dards relat­ing to the descrip­tion or rep­re­sen­ta­tion of sex­u­al mat­ters; and

(c) the mate­r­i­al is utter­ly with­out redeem­ing social value.”

The book in ques­tion, Gender Queer, does not meet these requirements. 

In 2022, two Virginia law­mak­ers peti­tioned the court to define Gender Queer as obscene and to restrict its avail­abil­i­ty by minors in book­stores and libraries.  The rul­ing judge found the statute under which the peti­tions were filed vio­lat­ed First Amendment free speech rights and the con­sti­tu­tion­al right to due process and reject­ed the petitions.

We have a long his­to­ry in this coun­try of short-sight­ed efforts to ban books that some found objec­tion­able for chil­dren.  Examples include Harriett Beecher Stowe’s Uncle Tom’s Cabin, John Steinbeck’s Of Mice and Men, Harper Lee’s To Kill a Mockingbird, Mark Twain’s Adventures of Huckleberry Finn ... the list goes on (and on).

Historically, book ban­nings often back­fire.  For exam­ple, look no fur­ther than ear­ly 2022, when a Tennessee school board made head­lines by ban­ning Maus from its school cur­ricu­lum.  Maus is a Pulitzer Prize-win­ning graph­ic nov­el by Art Spiegelman based on his father’s expe­ri­ences as a Polish Jew and Holocaust sur­vivor.  It depict­ed the Nazis as cats and the Jews as mice.  Within a mat­ter of weeks of the school board’s action, Spiegelman’s two-vol­ume work rose to sec­ond place on Amazon’s best­seller list.

The pub­lic­i­ty brought to bear on Gender Queer has undoubt­ed­ly con­tributed to its pop­u­lar­i­ty among teens who might oth­er­wise nev­er have heard of it.  And if you think chil­dren are pro­tect­ed by the board’s action restrict­ing the avail­abil­i­ty of the book, then you know noth­ing about teens’ alter­na­tive means of access.  I’m no com­put­er whiz, but with­in about 15 sec­onds of googling “gen­der queer,” I found a com­plete copy of the book online.  The con­tents of Gender Queer pale beside all the X‑rated mate­r­i­al on the inter­net avail­able to children. 

One pro­pos­al to address the issue of sex­u­al­ly explic­it mate­r­i­al was to have staff remove all such mate­r­i­al from the library.  This type of mate­r­i­al is pret­ty com­mon in pop­u­lar fic­tion these days.  Fifty Shades of Gray in the adult fic­tion sec­tion comes to mind, and any teenag­er can check it out.  This is the same sec­tion where Gender Queer is shelved.  While some peo­ple may find books like this offen­sive, accord­ing to the Supreme Court def­i­n­i­tion, such books are not obscene.  Patrons have every right to request such books, and the library has a duty to pro­vide resources to meet the diverse inter­ests and infor­ma­tion­al needs of the com­mu­ni­ties they serve.  Access by chil­dren to such mate­r­i­al is the par­ents’ respon­si­bil­i­ty, not the library’s.

There is one more deeply trou­bling aspect of the board’s action.  They picked out a sin­gle book from the library’s vast col­lec­tion, a book that explored LGBTQ issues.  Of the ten most-chal­lenged books in 2021, five focus on LGBTQ themes.  Attacking any­thing LGBTQ-relat­ed has its roots in reli­gious con­ser­vatism.  Some peo­ple hold strong reli­gious con­vic­tions against homo­sex­u­al­i­ty.  However, mak­ing deci­sions for the library on reli­gious grounds is a vio­la­tion of First Amendment rights.  A nar­row focus on LGBTQ issues makes us appear to be a big­ot­ed, unac­cept­ing com­mu­ni­ty.  Personally, I don’t believe that is a mes­sage we should be send­ing out.