Magarian: The fatal flaw in efforts to restrict 'inappropriate' library materials

Once a state government decides to fund public libraries (as every state has), it may not impose the government’s biases on what material libraries buy, lend and present. Biased funding violates two sorts of First Amendment rights: the right of authors and other creators for a fair chance to have their work included in libraries, and the public’s right to have access to a wide range of information. The proposed Missouri rule would unconstitutionally inject government bias into library funding.

The proposed rule would make libraries “adopt a written, publicly-accessible collection development policy addressing how selections are made in considering the appropriateness for the age and maturity level of any minor.” That language literally makes no sense. Is such bad writing unconstitutional? When the writing is in a law that restricts speech, then yes. The First Amendment requires regulations of speech to be clear, not vague.

What if we just focus on the phrase “appropriateness for the age and maturity level of any minor”? It’s still vague. Does “appropriateness” mean intellectual appropriateness, moral appropriateness, or something else? According to whom? What about the term “any minor”? Would this rule make libraries ensure that any child at all could appropriately read every single book the library offered? That would reduce the library’s whole collection to the level of a toddler. The First Amendment forbids the government from regulating speech in a way that treats adults like children.

Another part of the proposed rule would forbid libraries “to purchase or acquire materials in any form that appeal to the prurient interest of any minor.” The legal term “prurient interest” generally means an excessive interest in sex. The government may properly put some limits on children’s access to sexually explicit material, like banning the sale of pornography to children.

The First Amendment, however, compels great caution in setting such limits. The proposed rule throws caution to the wind. Focus again on the words “any minor.” Under the rule, libraries couldn’t buy a book if some child, somewhere could find it sexually arousing. Surely any description of sex will appeal to some overheated adolescent’s prurient interest. That means the rule would bar libraries from buying any and all material that describes sex. Do you want your library’s shelves to include the Bible? Under this rule, the Bible’s many descriptions of sex would bar libraries from ever buying it.

The proposed rule claims to help parents by letting them limit which library materials their children can access. Fair enough. But then the rule goes much further: No library may “grant access to any minor any material in any form not approved by the minor’s parent or guardian.” Would you rather not sacrifice major time and privacy to list for the government every single book, movie and website that you approve for your child? Then forget about sending your child to the library. Fortunately, the First Amendment blocks the government from second-guessing parents’ decisions about what materials their children may read or view.

The proposed rule’s worst First Amendment sin is that it would empower the state government to censor speech. The rule orders the Office of the State Librarian to defund any library that fails any of the rule’s numerous mandates. The office would bear the heavy burden of deciding whether each and every Missouri library did enough to shield children from “inappropriate” material. Maybe the office would shoulder that burden with wisdom and restraint. The First Amendment, though, doesn’t stake our rights on trusting the government. Instead, the First Amendment demands at a bare minimum clear, neutral standards for the government to restrict speech. The proposed rule contains no such standards.

The proposed rule puts great emphasis on making libraries’ policies transparent and visible to the public. That’s a sound principle. How regrettable, then, that Missouri’s government wrote this rule without holding any public hearings. If transparency is important for libraries, it’s much more important for government regulations that shape how we live. Maybe greater transparency would have given our state government the good sense to scrap this unconstitutional rule.

Greg Magarian specializes in constitutional law and is the Thomas and Karole Green Professor of Law at Washington University.