On Nov. 15, Missouri began accepting public comments on a broad new rule, proposed by the Missouri Secretary of State’s office, that seeks to keep books out of libraries rather than welcoming would-be readers in. The proposed rule will impose sharp limits and heavy burdens on what books Missourians can access — and what events they may host — in their community libraries.
If enacted, the new rule would:
Bar state libraries from purchasing books intended for grown-ups.
Sounds unbelievable, but it’s true. The new rule would restrict public libraries from using state funds to “purchase or acquire materials in any form that appeal to the prurient interest of any minor.” Practically speaking, this would bar public libraries from acquiring any book that discusses sex.
That’s a First Amendment problem. The Supreme Court of the United States made clear more than 60 years ago that the government can’t reduce adults to “reading only what is fit for children.” In that case, Butler v. Michigan, the Court struck down a Michigan law that prohibited the distribution of publications that contributed “to the corruption of the morals of youth.” The Court found that the law “curtails one of those liberties of the individual . . . that history has attested as the indispensable conditions for the maintenance and progress of a free society.” The proposed new rule would do the same thing.
Require librarians to check ID — and parental permission slips — at the door.
Is that a library or a nightclub? Because under the proposed rule, there’s a bouncer at the door checking IDs.
The new rule would prohibit librarians from “knowingly grant[ing] access to any minor any material in any form not approved by the minor’s parent or guardian.” Perhaps the rule was intended to allow parents to instruct librarians to limit their own child’s access to certain materials, but the rule as written can be read as requiring positive consent. It doesn’t require, for example, that librarians refuse access to materials disapproved by the parent.
A public library at the mercy of state censorship loses its power as “the quintessential locus of the receipt of information.”
The proposed language means that a library that grants anyone under the age of eighteen “access” to “material” — that is, the ability to pick a book up off of a shelf, or read a flier on a bulletin board — has to have a parent’s consent in advance. And because the rule is unclear, at least some librarians, with funding on the line, will rationally choose the stricter interpretation.
Yet even if the rule only meant that parents could instruct librarians not to give their teenager “access” to certain “material” in the library, that leaves librarians at the mercy of any vague instruction a parent gives. And it means that parents can dictate what books even a teenager on the cusp of turning eighteen may read.
Given that the age of consent in Missouri is as low as fourteen, that means that high schoolers can consent to sex — but they can’t read about it.
Require state libraries to impose ratings on all events, even outside events.
Coming soon to a dictionary, book signing, or class at your local library: mandatory, state-imposed parental advisory stickers. Under the proposed rule, any “event or presentation” must be given an “age-appropriate designation” that must be “affixed” to any “publication, website, or advertisement for” the event. Because of the provision’s grammar, the word “publication” could even be read to require that every copy of a book (a “publication”) at a book signing have a warning attached to it. Regardless, the government cannot compel private actors to affix these labels to their materials or websites. Accordingly, this provision should be cut in its entirety.
Notably, the policy implies that it applies to books in the library: it says that any person can challenge the “designation” affixed to any “material” in the library. But the rule doesn’t actually require “material” to have a designation at all, unless it’s part of an “event or presentation.”
Allow would-be censors to dispute any library determination or event.
And if “any person” disagrees with your warning, they can formally challenge it — even if their own children don’t attend the event, and even if they don’t have children at all. It’s all too easy to imagine this provision being abused by would-be censors and trolls of all types.
Don’t like the library hosting a meeting organized by people who don’t share your politics or faith? Challenging their designation is an easy, cost-free way to tangle it up in red tape and review. Don’t want the library lending out copies of a book that disputes your beliefs? Challenge it and see how long it lasts on the shelves.
The bottom line: The proposed rule threatens Missouri libraries.
The law is clear that libraries, literature, and speech can’t be child-proofed. “Even where the protection of children is the object, the constitutional limits on governmental action apply.” That’s the Supreme Court in 2011 in Brown v. Entertainment Merchants Association. Nearly 50 years ago, in Erznoznik v. Jacksonville (1975), the Court concluded that expression “that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.”
Whether a Florida ordinance making it a public nuisance and a punishable offense for a drive-in movie theater to exhibit films containing nudity, when the screen is visible from a public street or place, violates the First Amendment guarantee to freedom of speech and expression.
Courts have likewise rejected governmental attempts to prevent adults from accessing information in public libraries on the basis that the information is unsuitable for children. Nor does the government have an interest in “restricting access to non-obscene, fully-protected library books solely on the basis of the majority’s disagreement with their perceived message.” A public library at the mercy of state censorship loses its power as “the quintessential locus of the receipt of information.”
The new rule may be less than a blanket ban reaching even private ownership, but that doesn’t remedy the threat. The rule advances a soft ban by making it more difficult for librarians to justify even having certain books available. “When the purpose and design of a statute is to regulate speech by reason of its content,” the Supreme Court has observed, “special consideration or latitude is not afforded to the Government merely because the law can somehow be described as a burden rather than outright suppression.”
The public has the right to comment on this proposal until Dec. 15. Comments may be submitted by mailing the Office of the Missouri Secretary of State at PO Box 1767, Jefferson City, MO 65102 or by email to email@example.com.