By Barbara Gordon-Lickey
Most people understand that the First Amendment gives them a right to speak on any subject, free from censorship by government officials. Probably fewer people realize that the U.S. Constitution implicitly grants the freedom to read what they choose and protects their right to read in privacy.
The First Amendment protection of freedom of speech is meaningless if you cannot gather information on subjects that you want to speak about; that is, the First Amendment requires that reading materials not be censored. The right to read also requires that you do not suffer repercussions as a result of your reading choices; therefore, your choices must be private. This privacy right is also protected by the Fourth Amendment which prohibits unreasonable search and seizure and specifically states that “papers” must be protected. In the computer era of downloads, a search of your reading choices is equivalent to a search of your papers.
Freedom from censorship
Access to reading materials must not be controlled by anyone else’s ideas and opinions on any subject. The American Library Association policies state that libraries should not select books or other materials based on the subjects discussed or the opinions presented.
Although adult books continue to be challenged and censored, school libraries and literature classes are currently the most common targets. Book challenges usually originate with parents, but in most cases, principals and school boards deny the challenges.
When libraries became connected to the internet, they lost much of the power to select their holdings. Because children use many of the computers in schools and public libraries, parents and libraries lost the power to control what children read. A concerned congress passed the Children’s Internet Protection Act (CIPA) in 2000. CIPA required libraries receiving certain federal funding to filter material deemed to be obscene, child pornography or harmful to minors. CIPA was upheld by the Supreme Court in 2003. This outcome was premised on the fact that six of the nine judges accepted the solicitor general’s assurance during oral argument that adults could ask that filtering be disabled without specifying any reason for the request. In 2006, the ACLU of Washington filed suit against the North Central Regional Library District in Washington State on behalf of three library patrons and the Second Amendment Foundation,. The suit alleged that the library violated the First Amendment by blocking websites that contain legally protected speech and refused requests from adult patrons to search the internet unfiltered. A federal district court in Spokane, Washington upheld the library’s policy. This unpublished opinion applies only to that federal district. Since then the ACLU has successfully challenged a public library that filtered websites dealing with Native American religions, Wicca, astrology, and a school district that filtered LGBT websites.
A recent survey by the Oregon Library Association’s Intellectual Freedom Committee found that less than 10 percent of Oregon public libraries receive the federal funding that requires CIPA compliance. Of those libraries 64 percent do not use filters. Only 12 libraries responding to the survey reported that they do not disable the filter.
Even in the absence of censorship, your freedom to read is subverted if your choice of reading materials is not private. Innocent, but personal, behavior can be revealed either purposefully or accidentally. If the FBI wants to know if you read books about terrorism or communism, it can almost certainly find out.
In all states, the privacy of library patron records is protected, usually by exemption from public records requirements, except when these records are requested by law enforcement with a warrant or subpoena. The American Library Association encourages libraries to delete patron records as soon as materials are returned and fines are paid.
The need for privacy of library records is illustrated by the following example. While investigating a 1990 child abandonment case in Decatur, Texas, the police demanded the personal information of all patrons who had checked out books on childbirth during the last 9 months. This subpoena did not hold up in court, but you can imagine the anxiety this may have caused many library patrons.
The American Booksellers Association believes that bookstores have a “responsibility to you, and to the First Amendment, to respect the privacy of your choice of books, magazines and other material.” Law enforcement agencies sometimes request the purchasing records of particular customers. Some bookstores cooperate; others go to court. In addition to violating readers privacy, requests for individual purchasing records can cause bookstores to suffer financial loss because customers are often loathe to patronize a bookstore that releases customer’s personal records.
Purchasing books, or anything else, online poses additional privacy concerns. Sellers keep records of all your purchases and in most cases you cannot opt out of this practice. Although many sellers promise not to release your records for commercial purchases, they cannot always keep this promise even if they intend to. There is no database that cannot be hacked. Suppose you had a large credit card debt. Would you want the credit card company to know that you had recently purchased books about how to manage great wealth, or endure poverty or declare bankruptcy? Most privacy policies have exceptions for law enforcement but rarely specify that a search warrant is required. When a company decides which law enforcement requests to honor, the company is, in effect, defining the law.
In summary, censorship of adult reading material is now rare. Children’s access can be controlled by the Children’s Internet Protection Act, although the implementation of CIPA varies from library to library. Libraries generally protect the privacy of your reading choices. Most commercial enterprises will not destroy your purchasing records; these records have too much commercial value.
Barbara Gordon-Lickey is a member of the ACLU of Oregon Education Committee.