Library board endangers First Amendment rights

Published 12:00 pm Saturday, February 11, 2023

By Harry Enoch

Guest Columnist

In 2019 Maia Kobabe published a graphic novel for teens, “Gender Queer, A Memoir”, to critical acclaim.  While her book racked up awards, in 2021 it became the most challenged book in American libraries.  Efforts around the country to ban books has soared in the past several years.  The board of trustees at the Clark County Public Library has jumped on the bandwagon.

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At their November meeting, four board members raised concerns about “Gender Queer”.  At the December meeting, rather than banning the book outright, the board voted 4-1 not to allow anyone under 18 years of age to check it out without parental consent.  The vote took place in spite of the board attorney’s warning that restrictions are a form of censorship, and that legal opinion has held that a minor’s access to library material is a First Amendment right.

The board’s action put the library in the position of “trying to protect our children.”  But simply stated, that’s not their job.  Given the First Amendment rights of children, the library is not authorized to protect them from material some may deem unsuitable.  That is the right and responsibility of parents.  That has been the written policy of the Clark County Public Library for many years.  It is also the policy of the Kentucky Department of Libraries and Archives (KDLA advises Kentucky’s public libraries, its directors, staff and trustees).

Several board members tried to make the American Library Association (ALA) the bogeyman.  That is unfortunate.  ALA is the oldest and largest library association in the world.  For more than 140 years, ALA has been a trusted voice for libraries, advocating for the profession and the library’s role in enhancing learning and ensuring access to information for all.

It was stated over and over again that ALA believes children should be allowed to read any book in the library.  That is not the ALA position.  As laid out in their “Library Bill of Rights,” “A person’s right to use a library should not be denied or abridged because of origin, age, background, or views.”  Thus, given the First Amendment rights of children, the library is not authorized to protect them from materials some consider unsuitable.  That is the right and responsibility of parents.

Again, according to ALA, it is “the responsibility and the right of all parents and guardians to guide their own children’s use of the library and its resources.  Libraries and their governing bodies cannot assume the role of parents or the functions of parental authority in the private relationship between parent and child.  Libraries and their governing bodies shall ensure that only parents and guardians have the right and the responsibility to determine their children’s—and only their children’s—access to library resources.”

At the December meeting, one board member repeatedly pointed out that according to our own library policy, parents are responsible for their children’s use of the library, not the board.  The policy was ignored. In an attempt to protect themselves from a First Amendment challenge, four board members concurred that “Gender Queen” contained explicit sexual material, and therefore they had a duty to restrict its access on the grounds that it’s obscene.

The U.S. Supreme Court established a 3-part test for obscenity in 1973:

“(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex;

(b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and

(c) the material is utterly without redeeming social value.”

The book in question, Gender Queer, does not meet these requirements.

In 2022, two Virginia lawmakers petitioned the court to define Gender Queer as obscene and to restrict their availability by minors in bookstores and libraries.  The ruling judge found the statute under which the petitions were filed violated First Amendment free speech rights and the constitutional right to due process and rejected the petitions.

We have a long history in this country of short-sighted efforts to ban books that some found objectionable for children.  Examples include Harriett Beecher Stowe’s “Uncle Tom’s Cabin”, John Steinbeck’s “Of Mice and Men”, Harper Lee’s “To Kill a Mockingbird”, Mark Twain’s “Adventures of Huckleberry Finn”, the list goes on (and on).

Historically, book bannings often backfire.  For example, look no further than early 2022, when a Tennessee school board made headlines by banning “Maus” from its school curriculum.  “Maus” is a Pulitzer Prize-winning graphic novel by Art Spiegelman based on his father’s experiences as a Polish Jew and Holocaust survivor.  It depicted the Nazis as cats and the Jews as mice.  Within a matter of weeks of the school board’s action, Spiegelman’s two-volume work rose to second place on Amazon’s bestseller list.

The publicity brought to bear on “Gender Queer” has undoubtedly contributed to its popularity among teens who might otherwise never have heard of it.  And if you think children are protected by the board’s action restricting availability of the book, then you know nothing about teens’ alternative means of access.  I’m no computer whiz, but within about 15 seconds of googling “gender queer,” I found a complete copy of the book online.  The contents of “Gender Queer” pale beside all the X-rated material on the internet available to children.

One proposal to address the issue of sexually explicit material was to have staff remove all such material from the library.  This type of material is pretty common in popular fiction these days.  “Fifty Shades of Gray” in the Adult Fiction section comes to mind, and any teenager can check it out.  This is the same section where “Gender Queer” is shelved.  While some people may find books like this offensive, according to the Supreme Court definition, such books are not obscene.  Patrons have every right to request such books, and the library has a duty to provide resources to meet the diverse interests and informational needs of the communities they serve.  Access by children to such material is the parents’ responsibility, not the library’s.

There is one more deeply troubling aspect of the board’s action.  They picked out a single book from the library’s vast collection, a book that explored LGBTQ issues.  Of the ten most-challenged books in 2021, five focus on LGBTQ themes.  Attacking anything LGBTQ-related has its roots in religious conservatism.  Some people hold strong religious convictions against homosexuality.  However, making decisions for the library on religious grounds is a violation of First Amendment rights.  A narrow focus on LGBTQ issues makes us appear to be a bigoted, unaccepting community.  Personally, I don’t believe that is a message we should be sending out.

Harry Enoch is a native of Mt. Sterling and now resides in Winchester. He trained as a research biochemist and since retiring has focused on historic preservation, local history research and writing. He is the author of several books on Clark County history.