Criminalizing Librarianship
State Legislatures Creating Legal Jeopardies for Librarians
US history has featured many periods of greatly enhanced efforts to ban books, such as during the Comstock era, World War I, and the McCarthy era of the 1950s. Similar to previous periods, the book banning movement that has arisen during the novel coronavirus pandemic of the 2020s has featured widespread efforts to ban many books, particularly those representing certain marginalized experiences, from schools and libraries. However, this current tidal wave of ban booking has added the new and disturbing dimension of laws being considered in state legislatures that would actually create civil and criminal penalties for librarians if banned books were available in the library. These proposed laws are part of much broader legislative efforts at the state and national levels to limit the ability of libraries to construct collections and provide services that meet the needs of their communities. Though there have been some lingering, but unfounded, concerns that librarians might be criminally liable for incorrect information in the library collection and some national security laws have created potential legal jeopardy for librarians in extremely specific circumstances, these new proposed laws are the first that would create widespread legal liabilities for librarians. This article considers the nature of these proposed laws, the larger context that has generated them, and the implications if passed into law, including the Missouri law that has gone into effect.
Previous Fears of Information Malpractice
There have been recurring fears among library professionals about the potential for committing what is usually described as “information malpractice,” such as providing a resource to a patron that, unbeknownst to the librarian, contains incorrect or even dangerous information. This fear has been a presence in the field despite that there is no such thing as information malpractice under the law—if a book in the collection or a database that the institution subscribes to contains incorrect information, it is not the fault of the institution or the information professionals who work there (Healey 1995). Despite recurring fears of charges of information malpractice, there is no such concern under the law and the fear has been effectively debunked within library literature for decades (Dragic 1989).
A thoughtful and conscientious information professional follows the standards of best practice in the field and adheres to the policies of their institution. And they also avoid giving the impression of expertise in areas they do not have it, most prominently medicine and law, where there are general laws against all non-experts practicing. There are enough specialized issues to consider that a book like Paul Healey’s excellent 2008 Professional Liability Issues for Librarians and Information Professionals is a useful reference tool for any library system, but even a key theme of that book is the lack of a legal basis for holding librarians liable for criminal or civil wrong in the regular course of doing their jobs.
The provisions of the 2001 anti-terrorism law the USA PATRIOT Act did, in fact, have provisions that could have landed a librarian in legal trouble during the practice of their job, but only under very unique circumstances in which the librarian would actively have chosen to violate the law. Wiegand (2016) described the specific provision that most concerned libraries: “Section 215, which became known as the ‘library records provision,’ not only allowed law enforcement agencies to secretly monitor electronic communications emanating from libraries, it also required librarians to turn over patron information if requested and even imposed a gag order on those forced to comply, thus preventing them from telling anyone” (para. 2). Basically, libraries could be on the receiving end of warrants for information about patrons, could not tell anyone about the warrants because they had a built-in gag order, and would have to decide whether to comply or not comply to protect patrons and risk legal consequences for themselves (Jaeger, Bertot, and McClure 2003). While the initial reaction from many librarians was such strong opposition that Attorney General John Ashcroft went so far as to publicly question the patriotism of librarians, only an exceedingly small number of librarians chose to challenge a warrant issued under the law (Foerstel 2004).
The general lack of legal liability for the practice of librarianship under normal circumstances has been so steady that The Librarian’s Legal Answer Book (Minow and Lipinski 2003), published by the American Library Association, does not even have a section that deals with questions like “Can a librarian be arrested, fined, and serve time in prison for letting someone checkout a book that is also sold in the nearest Walmart?” A librarian competently doing their job, under normal circumstances at least, is engaging in a career path that actually offers exceedingly few possibilities for breaking the law (Jaeger, Lazar et al. 2023). Shockingly, yet not surprisingly, the assaults on intellectual freedom in school and public libraries that began to accelerate in 2020 blossomed into the proposals of state laws in multiple states that would do exactly that. These are non-trivial penalties being considered; a conviction under many of these proposed or enacted laws would result in fines up to $10,000 and 5 years in prison.
The Criminal behind the Reference Desk
In the first half of 2022, several state legislatures were actively considering proposed laws that would make librarians civilly or criminally liable for providing access to materials deemed “harmful” or “obscene” by the state government. Before delving into specifics of each of these proposed state laws, it worth considering how easily that terms like “harmful” or “obscene” can be manipulated to include just about anything that the person deciding to censor wants to include. Most state already have laws that define one or both of these terms as including materials that are: prurient, offensive to the average person, and lacking scientific, artistic, or political value, based on the 1973 Supreme Court holding in Miller v. California. The malleable nature of such definitions means that a great deal of material could be made to fit the standard. For example, in a legislative hearing about the proposed Indiana law, the example of what would constitute “obscene” materials under the law included How to be an Antiracist by Ibram X. Kendi (2019) and a selection of LGBTQIA+ (lesbian, gay, bisexual, transgender, queer/questioning, intersex, and asexual, plus) books (Office of Intellectual Freedom 2022).
It is also worth noting that the terms “obscene” and “harmful” are central to guidelines of the Children’s Internet Protection Act (CIPA), which ties receipt of federal technology funds to the filtering of computers in libraries receiving the funds. From the first implementation of the that law in the early 2000s, those terms have presented opportunities for very wide interpretation of what they include in application. Government officials in certain communities have used CIPA filtering requirements as a means to limit access to materials related to feminism, environmentalism, social inequities, and minority religions, among much else, as “harmful” or “obscene” (Jaeger, Bertot, and McClure 2004; Jaeger, Bertot, McClure, and Langa 2005).
The types of titles that these proposed state laws would most likely target in practice has already been substantially previewed in some states. Texas state representative Matt Krause got much attention in 2021 for launching a list of 850 titles that he deemed should be removed from all school and public libraries because they created “discomfort, guilt, anguish, or any other form of psychological distress because of [a student’s] race or sex” (Sarappo 2021, n.p.). The list primarily targeted materials focused on issues related to the experiences of African Americans and LGBTQIA+ communities, but also popular thrillers, medical reference books, and, ironically, pro-abstinence books (Ellis 2021; Sarappo 2021).
In a Texas county where the control of materials in the library system was seized by the county executive, that executive and supporters temporarily closed the libraries to cull the physical collection themselves, primarily targeting resources about race and gender identity for teens and cancelling access to e-books subscription services because they could not censor those (Gowan 2022a, 2022b). In such cases, the materials have not just been made unavailable to minors, they have been entirely excised from the library. In many communities, to avoid such threats, librarians have been preemptively removing materials from the collections that they fear will become targets for such censorship efforts (Eggers 2022; Natason 2022).
How to Criminalize Librarianship: A State by State Tour
Ideally, libraries are safe and inclusive spaces for everyone in the community. A place where all have the freedom to read and where librarians can do their jobs in fulfilling patrons’ information needs without judgment. However, several states want to take that feeling of safeness away by criminalizing the critical work librarians do. The state by state tour will explore examples of the different proposed laws, where they stand as of this writing, and what these laws mean for the field.
It is important at the outset of this discussion to note the unusual nature of a bevy of states simultaneously pondering the criminalization of librarianship, as it is not a normal situation by any means. State legislatures and the US Congress have not hesitated to insert themselves into the activities of libraries, with the amount of legislation about libraries increasing exponentially in the past several decades (Jaeger, Sarin et al. 2013). Some of this legislation, like the aforementioned CIPA, has placed parameters around what can be made available in the library; some state legislatures have made providing access to certain kinds of materials potential grounds for dismissal of a librarian; and a small number of state legislatures have previously had a proposed bill introduced with criminal penalties for librarians (Bossaller 2016; Jaeger, Zerhusen et al. 2016; Work, 2016). However, the current rash of proposed state laws with criminal penalties for librarians is significant and alarming deviation from the past.
In Idaho, the state House of Representatives passed House Bill 666, which explicitly “prohibits the distribution of harmful materials to children” and “removes exemptions of the prohibition afforded to schools, public libraries, universities, and museums” (Idaho Legislature 2022). Prior to this legislation, librarians and educators were protected from prosecution for performing their job duties. While the bill itself did not outline penalties the Boise State Public Radio reported that “it would’ve carried a maximum sentence of one year in jail and a $1,000 fine” (Dawson 2022, n.p.).
Despite passage through the Idaho House, the bill will not become law, at least this time, as the Idaho Senate did not pass a companion bill. Republican Senator Chuck Winder, the Idaho Senate leader, stated a clear rebuke to the law, even referencing Christian religious sentiment by saying, “I don’t think you’ll see some of the craziness that the House seems to like to do get very far in the Senate . . . I think it’s very appropriately numbered—666—if you understand the symbolism of the number” (Dawson 2022, n.p.).
Librarians in Idaho have pointed out the obvious flaws of this proposed law, for instance, public librarian Huda Shaltry in the Longview News-Journal emphasized, “this bill is to criminalize library worker . . . [and] also said the books parents mentioned during the hearing are available at the library but are not located in the children’s section of the library” (Corbin 2022, n.p.). The Idaho Library Association addresses this issue specifically on their website, stating that “Idaho librarians will continue to give thoughtful consideration to age-appropriate materials for our libraries . . . we maintain trust in the ability of librarians and library trustees to create collections that best serve their own communities” (Campbell 2021, n.p.).
Similarly, Iowa’s legislature has opened the possibility that librarians could be charged with felonies for merely doing their jobs and serving their communities. Class D felonies are “punishable by confinement for no more than five years and a fine of at least $1,025 but not more than $10,245” (Iowa House File 2176). The proposed bill which states that a person “who knowingly disseminates to any minor any material the person knows, or reasonably should know, is obscene or harmful to minors is guilty of an aggravated misdemeanor for a first offense and a class ‘D’ felony if the person has previously been convicted of a violation of this bill” (Iowa House File 2176).
The citizens of Iowa are overwhelmingly in opposition to these laws targeting librarians, 64% oppose the creation of such laws, but 27% of those polled were actually in support of such laws (Richardson 2022). The Iowa Library Association and the ACLU of Iowa also stand in firm opposition. The Association in their 2022 Legislative Agenda states that it “stands against any proposed legislation which would inhibit the freedom to read or infringe upon the foundational ethics of the profession.” Veronica Lorson Fowler, a spokesperson for the ACLU of Iowa said, “these are decisions that teachers and librarians should be making…often, what one person would consider obscene another person would consider fundamental about sex or sexuality” (Higgins and LeBlanc 2021). However, this strong public opposition and professional opposition does not appear to be enough to protect library workers in Iowa from coordinated political attacks which, if affirmed, could lead to incarceration.
In Indiana, a Senate bill was proposed to remove the protection of an automatic defense for those working in libraries and schools from criminal prosecution for providing access to materials that a community member objects to. The Bill “did not get written into law, but many protestors expressed concern that its language and goals may return to the 2023 legislative session in a modified form” (Lovitt 2022, n.p.). Anyone found in violation of this proposed law would be at risk for prosecution for a felony offense much like the proposed bill in Idaho (Indiana Senate Bill 17 http://iga.in.gov/legislative/2022/bills/senate/17).
While the bill was “not without pushback . . . the subjective nature and lack of specificity in the bill’s language has been a major concern . . . with no citations of certain literature, media, or teaching materials, there was no way to clearly state what was or wasn’t the issue in certain classrooms or libraries” (Lovitt 2022, n.p.). The Indiana legislators’ clear political agenda in attempting to pass a law without a clear indication of any actual harm to children is yet another example of lawmakers attempting to control library workers, and instill fear in librarians and educators who are simply seeking to serve all members of their communities. Librarians as information professionals who make well-considered collection decisions are not presumed to be trustworthy under this proposed law.
According to the Indiana Library Federation, “It is the responsibility of qualified, trained library professionals to ensure that…each person can freely access the resources they want, including materials that others may find offensive or run counter to their personal values” (Freedom to Read in Defense of Democracy 2022, n.p.). The Library Federation and library workers in Indiana appear to be facing an uphill battle as this issue seems likely to reemerge in the next legislative session.
These proposed laws are the most exceptional among a huge number that have been introduced or passed in state legislatures around the country to limit the functions of libraries, limit the collections of libraries, or impose political control directly over the library. EveryLibrary has even created a “Legislation of Concern” tracker for all of the proposed laws (https://www.everylibrary.org/2022_legislative_attacks). A telling example of this wider universe of proposed laws is pretty well exemplified by the recent events in the Tennessee legislature, including the threats of book burning by state officials.
In Tennessee, recent bills, House Bill 2666 & Senate Bill 2247 give the “politically appointed textbook commission final approval over books in Tennessee school libraries” (Brown and Exum 2022). So, while the law does not go as far as criminalizing the actions of library workers as we saw in Idaho, Iowa, and Indiana, it is yet another example of state level politicians using libraries and book collections as a means by which to score points and assert control over others. State Representative Jerry Sexton went as far as to say, “he would ‘burn’ books found obscene by an expanded state textbook commission charged with policing school library selections” (Stockard 2022, n.p.).
As we’ve consistently seen before, the general public in Tennessee does not approve of book bans, with “more than 58% of voters polled were strongly opposed to book bans, with another 10% somewhat opposed” (Mangrum 2022, n.p.). The Tennessee Library Association even issued a clear position statement in 2021, saying they “oppose censorship within school libraries on the grounds that it is unconstitutional and contrary to the professional ethics of librarianship, and challenge and removal processes are already in place at the local school district level” (Tennessee Library Association 2021). But it appears neither public opinion nor the opinions of the professional organizations within the field are enough to dissuade legislators from taking steps to censor collections and ultimately control library workers.
What each of these state laws share is the desire on the parts of legislators and vocal community members to dictate not only what their fellow citizens have access to in terms of reading materials, but also to control how library workers perform their duties. Instead of librarians and library workers being viewed as trusted public servants, they are being treated with suspicion and disdain. Additionally, there is the implicit removal of the presumption of the authority and expertise of the public library to determine its own collections and materials. These attempts to undermine public trust in libraries cannot be taken lightly are part of a larger trend of political actors to assert social control over those that they deem are unworthy of inclusion in social and political life in the United States.
State officials in many places have been quite vocal in their desire not only to have books removed from collections, but actively destroyed, with public burnings being an apparently appealing option, at least as a talking point (Eggers 2022). Some especially fervent book-banners are even trying to accomplish these means outside the legislative process, with some Wyoming residents going so far as make citizens’ arrests of librarians because the library carried books they disapproved of. Thus far, prosecutors in Wyoming have mercifully dismissed such accusations, but this is how strange things have become.
Only by understanding this new breed of legislative challenges, will libraries and library advocacy organizations be able to properly respond to attacks on the horizon. We cannot count on the goodwill of public opinion, or on the previously popularly accepted ideas around the role of the library in civic life, or even in the primacy of access for all community members, to protect ourselves, our colleagues, and our institutions. Existing Constitutional legal precedents, should, in theory, protect the libraries when it comes to these challenges and even criminal threats. However, because the legal framework around what counts as harmful or obscenity is based on a socially constructed understanding of language, and the common perceptions of words like “pornography” and “obscenity.” As we see in each of these proposed state laws, right-wing groups and legislators are seeking to redefine these concepts to suit their agendas, existing precedent may not be as strong as we in the library field would like to presuppose. History and legal precedent should be our guide as we as a field attempt to understand these current challenges, but political machinations are attempting to shift state, and ultimately federal, law so rapidly that our public institutions are struggling to keep up.
At a national level, the American Library Association commissioned a new national survey that shows, “large majorities of voters oppose book bans and have confidence in libraries,” and according to that poll “a new national poll commissioned by the American Library Association (ALA) shows that seven in 10 voters oppose efforts to remove books from public libraries, including majorities of voters across party lines” (Hylwak 2022, n.p.). Furthermore, “Nine in 10 voters (90%) and parents (92%) have a favorable opinion of librarians who work in local public libraries and school libraries,” and “Three in four voters (75%) are confident in local public libraries to make good decisions about what books to include in their collections, and 74% of parents are confident in public school libraries’ decisions about their collections” (Hylwak 2022, n.p.).
However, as we saw in Iowa, strong public opinion may not be enough to deter lawmakers from pursuing their own agendas. Librarians and library workers cannot trust that our legacy of positive public attitudes will be enough to protect us when politicians, pundits, and internet pot-stirrers attempt to criminalize the very work that is at the foundation of our profession and to put the freedom of librarians at risk for simply doing their jobs (Horrigan 2016).
The extent of the potential impacts of these laws in other places have already been clear in Missouri, which was an early state to actually pass one of these laws. Missouri SB775 provides for a year in jail and a $2,000 fine for any librarian providing access to a book or other resource that has been deemed “explicit.” Over 300 items are officially banned in libraries so far, leading to removals of works by Shakespeare, Mark Twain, and Leonardo da Vinci, Batman graphic novels, and materials about the Civil War and about the Holocaust; a great many more materials are being removed by librarians fearful of prosecution (Education Week 2022; Missouri Library Association, 2022; National Public Radio 2022; St. Louis Today 2022). The implementation of the law also has expanded the ability of parents to limit access of their own children to materials and to generally challenge materials in library collections. The fears of prosecution under the law are very palpable for Missouri librarians, as some reported being visited by police officers checking their collections for banned books before the law went into effect (KCUR 2022). Chilling seems a vast understatement to describe the effect of these laws when implemented. As this is same Missouri legislature that responded to the passage of the Affordable Care Act by making it fire-able offense for a librarian in the state to respond to questions about it from patrons and that began the 2023 legislative calendar by limiting what female members of the legislature could wear, we could hope that Missouri remains an outlier and no other states passes a law to criminalize librarianship. Unfortunately, that does not seem likely.
The Even Bigger Problem
In previous periods of enthusiastic book banning, such as 1873 to 1915 when Anthony Comstock was the official censor for the US government, legal actions were taken against merchants importing or selling banned books, the writers of banned books, people sending them through the mail, or the people who had purchased them illicitly (Jaeger and Taylor 2019). Comstock bragged about the number of people he drove to suicide and tended not to read the materials he banned and destroyed, relying on accusations or just the titles (Cockrell 2019). He prosecuted people for writing historically accurate books and for putting mild expletives on postcards. After the death of Comstock and into the middle of the twentieth century, cities and states still regularly banned books, though authors typically appreciated that because it promoted sales everywhere it wasn’t banned. Yet, the idea of legal liability for librarians working in libraries that had banned books on the shelves was not even considered during the greatest previous periods of book banning in US history. It is worth noting that book banning maintained widespread public support in the US for much of the nineteenth century and the first half of the twentieth century, though growing library opposition in the 1930s changed those public perceptions (Jaeger and Sarin, 2016a).
The best-selling book of Nobel Laureate Sinclair Lewis’ career was 1927’s fabulously dull Elmer Gantry, which focused on hypocrisy in religion. The city of Boston banned it before publication, making the sale or possession of the book a felony. After that, everybody wanted to read it. It was still a stilted, somnambulant book, but many, many numbers of copies were sold. Two years later, authorities in Boston did the same thing with Nobel Laureate Ernest Hemingway’s Farewell to Arms to the same results. If you’ve ever heard a joking reference to something being “Banned in Boston,” there is a reason. Around the same time, they were banning Lewis and Hemingway, Boston also banned the Gershwin opera Porgy and Bess for starring African American actors and the symphonies of Antonin Dvorak for his promotion of African American and Native American composers (Horowitz 2022). One of the oddities of major efforts to squash intellectual freedom is that they are sometimes focused on things, like Elmer Gantry, that are not of especially interesting.
Prior to the now, anti-intellectual freedom movements had threatened the careers—but not the freedom—of some librarians who refused to remove controversial materials. In the 1950s, the two biggest social issues of the time were the red scare and the civil rights movement, and public librarians in some parts of the country had to choose between professional principles and continued employment. For example, Louise S. Robbins’ 2000 book The Dismissal of Ruth Brown gives an accounting of one Oklahoma librarian who defended the principles of intellectual freedom and openly advocated for civil rights, and the subsequent professional and personal consequences that she suffered after a highly regarded 30+ year career. It was a big enough issue that the dilemma many librarians faced became the plot of a movie called Storm Center, starring multiple Oscar-winner Bette Davis as the director of a library choosing between removing materials suspected of being communist from the collection and violating the spirit of the Bill of Rights, or keeping materials suspected of being communist and risking the ire of politicians or the local community (Jaeger and Kettnich 2020).
These ongoing attempts to diminish intellectual freedom in libraries are also inexorably part of decades-long and highly-politicized efforts to reduce library funding as means of limiting the ability of libraries to empower marginalized groups (Jaeger, Bertot, and Gorham 2013; Jaeger, Gorham et al. 2013; Jaeger, Sarin et al. 2013; Jaeger and Sarin 2016b). Conservative politicians, operatives, and political organizations generating this current rage at library materials have also spent the past four decades working diligently to reduce funding for libraries at all levels of government to hobble their ability to serve their communities (Jaeger et al. 2017), culminating with the 2017 proposed budget from the Trump administration that advocated for the elimination of all federal funding for libraries, literacy, and related social goods (Douglass et al. 2017).
Conclusion
Libraries have evolved in reaction to social changes, technological changes, waves of migration and immigration, laws and policies, and much else, often with the end result being new means to promote information access and literacy, and thereby equity, in their communities (Taylor and Jaeger 2022). Such evolution has also involved a great deal of creativity; some librarians had to think of—and implement—responses to major events and new needs. It’s amazing to consider that the presence of children’s story time was a reaction to a flood of immigration to the US by people fleeing hostilities in Europe in the early 1900s. Children’s story time was a way to teach English to immigrant children, while giving their parents some free time to learn English or look for a job or other important aspects of settling in.
It is within this context that the current anti-intellectual freedom movement may seem more manageable. We are currently swimming upstream against a very strong current, but libraries have starred down many movements such as this in the past, with strength and creativity. The roots of organized library opposition to censorship of collections begins during World War I, in which public libraries experienced broad social pressures to remove anti-war, pro-labor, and German-language books (Wiegand 1989). When another period of war in Europe erupted less than two decades later, librarians and library organizations publicly opposed calls for censoring of politically controversial books in the 1930s, most especially John Steinbeck’s The Grapes of Wrath, while the American Library Association passed the Library Bill of Rights in 1939 to affirm the library profession’s stance against censorship and for free access to information (ALA 2010; Gellar 1984; Lincove 1994).
Just as World War II resulted in the direct and intentional destruction of more books, works of art, libraries, archives, and museums than any other event in human history (Knuth 2003), it also emphatically reaffirmed the value of intellectual freedom in democracies and the essential role of libraries as arsenals of democracy (Jaeger and Taylor 2021). During the aforementioned McCarthy era of the 1950s, many public libraries actively resisted government intrusions into library collections and patron reading habits (Jaeger and Burnett 2005). In Iowa in the 1950s, librarians even successfully fought efforts to censor what materials could be sold in local bookstores and drugstores (Taylor 2013).
While past successes provide no guarantees for future outcomes, it is heartening to know that the new proposed laws may be more extreme and cruel, but they are not unprecedented. In May 2022, the ALA and more than two dozen professional organizations and publishers, including the Authors Guild and the American Federation of Teachers (AFT), created a new entity—Unite Against Book Bans—to fight against attempts to ban books and criminalize access to materials in an organized manner. It is also worth remembering that, despite the fact that 2021 featured the most attempts to ban books since these numbers have been tracked, more than 70% of Americans, regardless of political affiliation, oppose any efforts to remove books from public libraries (Charles 2022). One might imagine that those numbers would only increase if a state actually started arresting librarians.
It seems utterly anti-democratic to have to navigate the actuality that some states would actually pass laws that allowed for the imprisonment of libraries simply doing their job. Yet, this is the reality of our professional surrounding at this moment. The passage and implementation of the Missouri law demonstrates how staggeringly, ominously real this threat is to libraries and librarians. And this is not a problem that seems likely dissipate in the near future; as noted earlier, librarians in states that have fought back these proposed laws fear that they will simply be reintroduced next year. Sadly, learning about these proposed or enacted laws across the states, as well as the strategies that have proven effective in raising public awareness of and opposition to them, is of great importance for all librarians in every state. These anti-intellectual freedom laws are concern for all who work in and care about libraries in every state.
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