The Library Bill of Rights - a critique - The Library Bill of Rights

Library Trends, Summer, 1996 by Gordon B. Baldwin

A year ago, Wayne Wiegand of Wisconsin's Library School asked me to review the Library Bill of Rights as a lawyer. My first impression remains. Its vague, wooly, and ambiguous language promises more than anyone can deliver, and its commands do not equate with law. It also has gaps. For example, the Library Bill of Rights fails to note that the inculcation of values is a major purpose of an educational enterprise.

Within the Library Bill of Rights was found several themes creating tensions, if not contradictions, limiting its persuasive force. First, it reflects, in unspecific terms, an uncertain commitment rooted in our culture and history to intellectual freedom; second, it embodies the interests of librarians in resisting outside interference with their work; and third, it embodies only a few protections found in the First and Fourteenth Amendments to the U. S. Constitution.

The Library Bill of Rights cannot codify either First Amendment law or all interests of librarians for several reasons. First, law does not address all the policies forcibly and persistently advanced by the American Library Association. Second, many free speech questions remain unclear because there is no general and agreed upon theory of the purpose of the First Amendment. Third, many issues -- such as book selection decisions -- evade court review and therefore never receive authoritative judicial review. Even if the Library Bill of Rights codified the law, it would generate criticism because no one unqualifiedly supports the First Amendment as the Supreme Court interprets it. Some say the United States unnecessarily protects more speech than any other nation or society; others stress the subjectivity and, hence, unpredictability of modern doctrine. No one claims we have a faultless interpretation of the First Amendment.

The Library Bill of Rights ignores the market forces that create the resources in collections. Decisions of publishers and authors rest on their values, interests, and judgment, which reflect differing degrees of subjectivity if not self-censorship. Librarians cannot obtain what producers decide not to write or not to publish. The Library Bill of Rights extolls the virtues of diversity but, for diversity of opinion, the public depends upon diverse and competing producers. Market forces limit variety. If a few large publishers and national bookstore chains dominate the market, the public cannot find the diversity of opinion that the Library Bill of Rights invites.

Law allows self-censorship. We cannot assume that everything valuable will find a publisher. Indeed we have evidence that educated audiences as well as publishers shun offensive material. Amy Hielsberg (1994), a University of Wisconsin-Madison School of Library and Information Studies student, recently revealed the sensitivities of her peers who objected to a reading of an allegedly sexist novel, American Psycho by Bret Easton Ellis (1991). The book provoked the anger of the Los Angeles Chapter of the National Organization of Women (among others) (Heilsberg, 1994, p. 768). Ellis had difficulty in finding a publisher for this work, described by a British writer as a work of sexual violence published under the guise of social commentary (Gardner, 1994). Hielsberg reports the anger of her classmates when she read portions of the novel describing the mutilation of women. She notes that, although the book occupied the best-seller list for weeks, OCLC records show that only 417 American libraries purchased it. In this incident, Hielsberg finds self-censorship and conflict with the Library Bill of Rights. She observes that the Library Bill of Rights does not guide the practices of many (if not most) book selectors, and that self-censorship exists after publication just as it does before.

Self-censorship dominates the decisions of textbook publishers. If textbook publishers want to sell hundreds of thousands of history books to California or Texas schools, they must satisfy state reviewers whose decisions can rest on the fashions of the moment. History and government texts in the public schools appear bland in their avoidance of controversy. A text written in 1940 may record an 1890 event much differently than a text written in 1990. "The great tides and currents which engulf the rest of men," Benjamin Cardozo said in 1921, "do not turn in their course and pass the [educators] by." Lines between censorship and judgment appear blurred. Self-censorship remains; the law permits it and good manners reinforce it, even if the Library Bill of Rights does not.

Contracts, or their equivalent, control access. The Library Bill of Rights does not forbid libraries from limiting access to patrons based on employment, residence, or membership in the group for whom the library exists,' nor does the Library Bill of Rights touch on contractual limitations that donors commonly attach. When Joseph Rauh, a prominent civil rights lawyer, donated his personal papers to the Library of Congress, he required a reader to obtain his consent if they wished to publish (Kaplan, 1988). Former Secretary of State Henry Kissinger deeded his notes to the Library of Congress, but he insisted on retaining power to control access (Kissinger v. Reporter's Committee for Freedom of the Press, 1980). In contrast, Justice Thurgood Marshall's files held by the Library of Congress are available to "serious scholars," and the library broadly confers that status. The Library Bill of Rights does not purport to confer rights on library users but, even if it did, courts commonly decline to find a legal interest violated merely because a library declines to follow its own policies (Boothe v. Hammock, 1979; Frison v. Franklin County Board of Education, 1979; Cofone v. Manson, 1979).