The Legal Landscape

A Brief Introduction to the First Amendment & Libraries

We frequently refer to the First Amendment when talking about the right of library patrons to access information in libraries.  The Right to Read is an inherent corollary of our Freedom of Speech. But what does the First Amendment say?  Let’s learn more.

Engage

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Source: https://constitution.congress.gov/constitution/amendment-1/

Explore

Read: Common Interpretation of the First Amendment from the Constitution Center

Read: The Everyday First Amendment from the American Bar Association

Read: Foundations of Free Expression & the Right to Read Freely from the American Library Association

Review: Carnegie Library of Pittsburgh

Watch: Duke University: The First Amendment

Extend

Watch: Crash Course: The First Amendment

Reflect

How do these materials change your view of the First Amendment?

Censorship vs. Book Selection

Now that you understand more about the First Amendment, let’s consider the concept of censorship.  In particular, let’s consider how the actions we take as librarians can support or hinder the First Amendment rights of library users.

Engage

The ALA defines censorship as “the suppression of ideas and information that some individuals, groups, or government officials find objectionable or dangerous.”

Librarians make decisions about which materials to include in library collections. When do such decisions cross a line to censorship?

If your library has a materials selection policy, review it now.

Explore

Read: Select at least three options from this list.

Watch: Avoiding Self-Censorship: How to Be a Brave Librarian

Extend

Explore the concept of self-censorship further:

• Take the Self-Censorship Test!
• Explore a Self-Censorship Quiz created for student journalists available through the Student Press Law Center
• Revisit ALA’s Intellectual Freedom Blog’s entry on Librarians Beware: Self-Censorship.

Consider the concept of neutrality and how it is sometimes used to further censorship.

Reflect

Think about your library collection and consider the results of your self-censorship test. Consider updates that could be made to your materials selection policy, or, if your library doesn’t have one, what provisions should be included to limit censorship.

Library Association Views on Censorship & the First Amendment

As librarians, we are professionals, and many of us belong to professional associations.  What do these organizations have to say about the First Amendment and our obligations?

Engage

Familiarize yourself with the following organizational statements:

• ALA Library Bill of Rights
• Freedom to Read Statement
• Libraries: An American Value

Reflect on how these statements support the 1A.

Explore

Watch: Intellectual Freedom is Not Just About Censorship!

Review: Your own state library association’s freedom to read statement, if there is one.

Research: Does your library have a policy on intellectual freedom?

Extend

As librarians, we should promote Freedom to Read. Develop a plan to raise awareness of this freedom in your library. Check out these resources.

Reflect

As you think about the 1A, censorship, and library association views, what seems challenging to you? What seems easy?

What About the 14th Amendment?

While the First Amendment is more frequently relied upon to support library users’ access to library materials, librarians and lawyers have responded to some recent book challenge and banning efforts with reference to the 14th Amendment in conjunction with the First Amendment.  In their dissent to the U.S. Supreme Court decision upholding CIPA’s requirement that libraries receiving federal funds to provide internet access use software to block obscene and poronographic images, Justices Souter and Gingsberg also reference 14th Amendment rights.  Let’s look at how this amendment may apply to libraries.

Engage with the Text

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Source: https://constitution.congress.gov/browse/amendment-14/

Explore the Meaning

Read: Common Interpretation of the 14th Amendment from the Constitution Center

Read: The Constitutional Side of Libraries

Explore: The Westport Library 14th Amendment LibGuide

Explore: Equal Protection with the Legal Information Institute at Cornell

Extend

Check out how libraries and library users are referencing the 14th Amendment across the country in this Padlet.

Reflect

What does the 14th Amendment add to the discussion around libraries and censorship? How does the Library Bill of Rights reflect the 14th Amendment?

Practical & Proactive Approaches for Protecting Library Access

Now that we have looked at the Constitutional importance of protecting access to information, what steps do we need to take to make sure our libraries are engaged in best practices?  Let’s look at what other libraries are doing.

Engage

If the First and 14th Amendments call for protecting library users’ access to information, how do librarians protect such access? If your library has a policy on library access, review it now. If not, reflect on the policies in your library that shape access.

Explore

Read: Library of Michigan Info Sheet

Listen: School Librarians United Episode 239

Watch: Three Ways Librarians Can Combat Censorship

Read: ALA Guidelines for Library Policies

Review: A Proactive Approach to Book Challenges

Review: The CCBC has collected many resources for being proactive about collection access. Take a few minutes to select at least two other resources to explore on their website.

Extend

Consider how the practical approaches you explored fit with the ALA statements and policies on censorship. Pick one approach to critique.

Reflect

Based on the materials you have reviewed, what is one proactive step you can take for your library?

Discussion Questions

As you’ve completed this module, you should have taken time to reflect upon the following questions:

1. What is your understanding of the First Amendment, both as you entered this module and after reviewing the materials on the First Amendment?
2. What updates need to be made to your library’s policies to address the issue of self-censorship?
3. How do the library association position statements support the First Amendment?
4. What does the 14th Amendment add to the discussion around libraries and censorship? Why do you think most people focus on the First Amendment?
5. What is one proactive step you can take in your library to limit censorship and protect users’ access to information?

Reflection or Further Reading

Want to learn more?  There are many resources on the First Amendment, but the ones below can be great places to start extending your learning:

• The U.S. Congress’s website on the Constitution has a helpful discussion of “School Free Speech and Government as Educator“.
• The Founders’ Constitution (readings and philosophy behind all aspects of the Constitution):
• Explore the Bill of Rights at the National Archives.
• The Foundation for Individual Rights and Expression has an extensive blog post collecting resources on First Amendment issues in libraries.
• The ALA Store has an enormous selection of books on intellectual freedom that is worth perusing.

A Brief Overview of the Federal Right to Privacy

We often talk about privacy for library patrons, but what laws actually establish a right to privacy?  Let’s look at the constitutional background, the federal Patriot Act, and state-level privacy laws.

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“In a library, user privacy is the right to open inquiry without having the subject of one’s interest examined or scrutinized by others.”

ALA Privacy & Confidentiality Q&A

Read: Constitutional Origin of the Right to Privacy

Read: Right to Privacy

Explore

One of the major issues concerning library privacy is the impact of the Patriot Act.  How does the Patriot Act affect libraries? Should your library have a privacy policy?  Spend some time learning more about the Patriot Act and its implications HERE.

Extend

What about state privacy policies?  Review your state’s privacy laws HERE.

Reflect

How does the Constitutional right to privacy interact with the federal Patriot Act and state privacy policies?

Sunshine Laws & Library Privacy

Open meetings and open records laws also have a role to play in library privacy.

Engage

Let’s get some background:

Legal Information Institute. (n.d.). Sunshine laws. Cornell Law School.

Snow, B. M. (2023, December 15). Freedom of Information Act of 1966 (1966). Free Speech Center at Middle Tennessee University.

Snow, B. M. (2023, December 15). Government in the Sunshine Act (1976). Free Speech Center at Middle Tennessee University.

Explore

Review the U.S. Department of Justice’s website on FOIA.

Watch this brief informational video from FOIA.gov.

Spend some time reviewing the FOIA process and the law in your state: How to Respond to a Request

Review the National Freedom of Information Coalition expansive collection of resources of State-Specific Sunshine Laws.

Look up your state’s sunshine laws on Ballotpedia’s interactive map.

Extend Your Understanding

Review these proposed FOIA Best Practices

Reflect

In what ways can FOIA impact patron privacy?  What best practices can you implement in your library?

Library Association Views on Privacy

Now that you’ve learned some of the legal background, let’s consider how library associations have addressed privacy issues, both proactively and in response to legislation like the Patriot Act.

Engage

Read the Library Bill of Rights.

Watch:  Library Bill of Rights

Consider:

• Does your library have a copy of the Library Bill of Rights posted publicly?
• Is the Library Bill of Rights referenced in your library policies?

Explore

Read:  Libraries: An American Value

Read:  Privacy: An Interpretation of the Library Bill of Rights

Watch:  Why Privacy Matters

Read: Policy Concerning Confidentiality of Personally Identifiable Information about Library Users

Extend Your Understanding

Does your state library association have a policy on patron privacy?

Reflect

What policies does your library have that protect patron privacy?  What policies should your library consider adding to protect patron privacy?

Practical and Proactive Approaches for Protecting Patron Privacy in Libraries

What does it look like to protect patron privacy in practice?  The ALA has proviced helpful tools and many libraries have developed policies to address patron privacy rights.

Engage

Now that you’ve reviewed the legal background and library association views, spend some time with this ALA resource on patron privacy.

Explore

Select two privacy policies to review and compare:

• Seattle Public Library
• Ocean County Public Library
• Madison Public Library
• Faulkner County Public Library
• Emory University Libraries
• MIT Libraries
• David T. Howard Middle School Library

Extend

Watch: Navigating the Changing Landscape of Library Privacy

Reflect

Consider the library privacy checklists offered by ALA. Where does your library fall on the privacy protection spectrum?

Discussion Questions

As you’ve completed this module, you should have taken time to reflect upon the following issues:

1. Before you began reading and learning, what types of information did you think libraries protected? What information is not protected?
2. How does the Constitutional right to privacy interact with the federal Patriot Act and state privacy policies
3. How can FOIA be used as a tool to protect patron privacy?  What best practices can you implement in your library?
4. What policies does your library have that protect patron privacy?  What policies should your library consider adding to protect patron privacy?
5. Considering the library privacy checklists offered by ALA, where does your library fall on the privacy protection spectrum?

Reflection or Further Reading

Want to learn more about privacy issues?  Check out these resources.

• The ALA Privacy Tool Kit 
• The ALA Store has an enormous selection of books on privacy that is worth perusing.
• For more on patron data privacy, check out these options:
  • Training from the Pacific Library Partnership
  • Penn State University Libraries Privacy Workshop
  • Central Kansas Library System Libguide on Privacy and Confidentiality

Student Rights in K-12 School

While it may seem like K-12 students should have the same basic rights as any other citizens, the Supreme Court has taken into consideration both the age of students and the education setting when considering what rights students may exercise in school.

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What rights may students freely exercise in public schools? What limits do students face? Do they have a right to privacy? Let’s look first at free speech rights under the Constitution.

Read: School Free Speech and Government as Educator

Review:  List of cases affecting students’ rights with brief summaries

Explore

Watch:  Education Week video on student rights

Read: Education Law Center’s fact sheet on student free speech

Watch: Student Rights, Protests, and Free Speech

Extend

What about state laws? Review your state’s laws regarding student rights HERE.

Reflect

What constitutional constraints do students face? How do these limitations impact libraries?

What about Privacy? The Role of FERPA & the PPRA

When it comes to student privacy in K-12 libraries, parents play a critical role.  Let’s look at the impact of federal privacy laws, the Family Education Rights Privacy Act and the Protection of Pupil Rights Amendment.

Engage

What are FERPA and the PPRA?? Student privacy rights are largely protected by parents! Federal laws restrict when and how schools may release information about students.

Explore

Explore: Skim the text of the law as provided by Cornell Law School

Read: Learn about the original FERPA provisions from the NCES and from the U.S. Department of Education

Read: Learn about the PPRA from the U. S. Department of Education

Extend

How does FERPA affect school libraries? Under answer no. 17, The ALA explains why FERPA matters.

Reflect

After reviewing information on FERPA and the PPRA, how would you explain the role of parents in protecting student privacy in a school library?

Freedom to Read – Library Association Views on Student Rights in K-12 Libraries

How have library associations and the school librarians they represent responded to the laws concerning students’ First Amendment protections and privacy rights?

Engage

If you need a refresher, review the Library Bill of Rights.

Then read how the ALA has interpreted the application of the Library Bill of Rights to students in K-12 schools.

Explore

AASL covers library access and privacy in K-12 school libraries:

• Access Denied Defended, Knowledge Quest, Volume 50, Number 5, May/June 2022
• Why Intellectual Freedom and Equitable Access Are Even More Important Today, Knowledge Quest, Volume 49, Number 1, September/October 2020.

Skim these issues and select at least two articles to read.

Extend Your Understanding

Check out how book challenges are affecting school librarians in this SLJ article.

Reflect

Consider the unique censorship, book challenge, freedom to read, and privacy issues of K-12 school libraries.

Island Trees School District v. Pico – What It Means (and What It Doesn’t)

The Supreme Court decision in Island Trees School District v. Pico is often referenced as a decision that protects school libraries from politically-based challenges. But what does the decision truly mean and how might it affect the current climate of book challenges?

Engage

Often cited for the proposition that school libraries enjoy a measure of protection from politically-based interference with book selection, this decision may not be so straightforward. Read it for yourself:

BOARD OF EDUCATION v. PICO, 457 U.S. 853 (1982)

Explore

Read:  Yanking Books from School Libraries from EdWeek

Read:  The First Amendment and school library book policies

Read:  Battlegrounds for Banned Books

Listen:  Interview with librarian Barbara Bernstein

Listen:  Inside the SCOTUS case on school library censorship

Extend

Watch this clip from the 2022 House hearings on free speech and book bans.

Reflect

What, in your opinion, does Pico accomplish? Are K-12 school librarians free to make book selection decisions without fear of political interference?

Practical & Proactive Approaches for Promoting Student Access & Privacy in K-12 Libraries

How can school librarians best serve their patrons?  Let’s look at suggestions for practical action.

Engage

Now that you’ve reviewed the legal background and library association views on the rights of K-12 students, what issues do you see as most pressing in today’s school libraries?

Watch part one of the ALA’s free webinar, Addressing Challenges in America’s School Libraries, Challenges and Challenging Legislation Everywhere: What’s Going On?

Explore

Read:  Soft Censorship, Knowledge Quest, Vol. 52, No. 2, November/December 2023 – Pick an article or two on soft censorship issues to read.

Watch: part two of the ALA’s  Addressing Challenges in America’s School Libraries webinar, Managing Challenges with Our School Policies and the Law

Extend

Visit the NCES Forum Guide to Protecting the Privacy of Student Information and review the suggestions for schools from NCES.

Reflect

How can K-12 school librarians can best address the special issues of student access and privacy?

Discussion Questions

As you’ve completed this module, you should have taken time to reflect upon the following issues:

1. What do YOU know about the First Amendment and privacy rights of students in K-12 school libraries?
2. What constitutional constraints on their rights do students face? How do these limitations impact K-12 school libraries?
3. After reviewing information on FERPA and the PPRA, how would you explain the role of parents in protecting student privacy in a school library?
4. What unique censorship, book challenge, freedom to read, and privacy issues do K-12 school librarians face?
5. What, in your opinion, does the Pico decision accomplish?  Are K-12 school librarians free to make book selection decisions without fear of political interference?

Reflection or Further Reading

I highly recommend these resources for further reading:

• For a current analysis:  The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind by Justin Drive
• For a more historical analysis:  Speaking Up: The Unintended Costs of Free Speech in Public Schools by Anne Proffitt Dupre
• For more on the history of book challenges:   The School Library versus the School Board: An Exploration of the Book Banning Trend of the 1980s

How to Locate Legal Resources & Support

Engage

When librarians face legal issues, where do they turn for support?

Read these case studies from School Library Journal.

• See You In Court
• Fed Up and Filing Suit for Intellectual Freedom

Note where the featured librarians sought assistance.

Explore

There are a number of organizations that offer assistance to librarians who need help with legal issues related to the library.

Visit the websites noted in the Helpful Links tab and bookmark helpful resources for the future!

Visit the websites for your state’s library association(s) and Bar associations.  Share any advocacy and/or legal assistance resources you find.

Extend Your Understanding

Pick one of the case studies and identify at least one additional resource for the librarian in the case.

Reflect

How can information on resources inform your practice as a librarian?  Does your library policy address accessing resources?  Should it?

Discussion Questions

As you’ve completed this module, you should have taken time to reflect upon the following issues:

1. What advocacy and/or legal assistance resources are available from your state’s library association(s) and Bar association(s)?
2. What additional resources could be available to the librarians in the SLJ case studies?
3. How can information on resources inform your practice as a librarian?  Does your library policy address accessing resources?  Should it?