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

Library Trends, Summer, 1996 by Gordon B. Baldwin

The law--but not the Library Bill of Rights--draws a distinction between government and private action. The First Amendment only limits government. Private groups and individuals can, and regularly do, forbid speech. Thus a church can expel a member because of his or her speech and opinions; private schools may punish their students and their employees because of their speech; other private associations remain free from constitutional restraints. Therefore, the Auxiliary Bishop of St. Paul committed no constitutional violation when he ordered birth control advocate Margaret Sanger's picture removed from the University of St. Thomas library in 1993. The modest book removal limitations applicable to public schools do not apply to private schools, colleges, and libraries. Distinctions between private and state action rest more on history, tradition, and on policy preferences than on logic.

The recent Hurley decision illustrates a command to honor private choice. The St. Patricks-Evacuation Day parade, a regular and treasured event in Boston, looks very public because as many as 20,000 marchers and a million viewers celebrate the city's Irish heritage and the British retreat in 1776. A state court ruled that its organizers, the South Boston Allied Veterans Council, could not bar a gay/lesbian group from participating because Massachusetts law forbids even private discrimination based on sexual orientation. However, the Supreme Court unanimously reversed that decision in 1995, saying that the First Amendment forbade government from forcing the veterans to give a place to the gay/lesbian marchers (Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 1995). "The state court's application of the statute had the effect of declaring the sponsor's speech itself to be the public accommodation." The Court ruled that "this use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message" (Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 1995). State law cannot force the Veterans Council to carry a message it disapproved of because "parades are...a form of expression, not just motion" (Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 1995). Thus, the Supreme Court ratified the right of a group to make private choices.

Law limits what government can demand. Law cannot require newspapers to publish a reply to a critical article (Miami Herald v. Tornillo, 1974), and a corporation cannot be forced to distribute critical advertisements (Pacific Gas &Electric Co. v. Public Utilities Commission, 1986). On the other hand, courts appear more willing to tolerate government commands upon the electronic media, including cable TV.

Private premises enjoy immunity from constitutional control but remain subject to reasonable public regulation (PruneYard Shopping Center v.Robbins, 1980). However, if the private group organizes itself to become a "place of public accommodation," it becomes subject to regulations banning discriminatory behavior. Identifying such a place presents difficulties, and large uncertain grey areas exist. The Supreme Court has ruled that Rotary Clubs (Board of Directors of Rotary Club International v. Rotary Club of Duarte, 1987), the Jaycees (Roberts v. United States Jaycees, 1984), and other large clubs (New York State Club Assoc., Inc. v. The City of New York, 1988) having open membership policies qualify as places of public accommodation and cannot engage in gender discrimination, but the South Boston Allied Veterans Council, the court rules, differs. It appears, therefore, that a library in a religious school might limit access to believers.