TULANE LAW CLINIC
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January 18, 2024
Livingston Parish Library Board of Control
Via electronic mail only to: Ronnie Bencaz, Ivy Graham, Kathy Degeneres, Steve Bernard, Melissa Anderson, Wendi Neal, Larry Davis, Fran Smith, Abby Crosby, and Randy Delatte
Re: Livingston Parish Public Library Collection
Dear Library Board of Control members:
We write with strong concerns about the potential removal of constitutionally protected materials from the Livingston Parish public libraries. We ask that the Board refrain from setting a policy in which materials challenged under Policy Code 3-309a are pulled from shelves while under review.
It is our understanding that pursuant to Policy Code 3-306 titled “Challenged Materials,” library patrons may utilize a Citizen’s Request for Reconsideration of Library Material Form, Code 3- 309a, to register a complaint about any material in the Library. If the complainant alleges on the aforementioned form that the material meets the criteria outlined in La R.S. 25:225C(2)(d)(ii), then the Library Board of Control must review the material and determine whether it meets the definition outlined in La R.S. 25:225B(4) by majority vote in an open meeting.
Alternatively, if the complainant does not allege that the challenged materials meet the criteria of La R.S. 25:225C(2)(d)(ii), then the Administrative Librarian will convene a Reconsideration Committee, which will present a recommendation report to the Administrative Librarian. Then the Administrative Librarian will consider these findings and come to a decision as to whether to retain the book. That decision will be provided in writing to the complainant and the Library Board of Control.
These policies were last updated on September 19, 2023. There is no part of the policy that provides for the relocation or removal of library materials while they are under review.
John Giffen Weinmann Hall, 6329 Freret Street, Suite 130, New Orleans, LA 70118-6248 tel 504.865.5153 fax 504.862.8753 1-800-670-0342 www.law.tulane.edu
The agenda for the Livingston Parish Library Board of Control meeting scheduled for January 16, 2024, lists an agenda item to “discuss the relocation of materials challenged under Policy Code 3-309a [Citizen’s Request for Reconsideration of Library Material] while the Library processes this request.” This item was included on the agenda at the request of the Livingston Parish Council.
Reviewing a book in this context is not a quick process. According to the Library Director’s statements during the Livingston Parish Council meeting, the review of a singular book can take up to one month. The ease in which requests for reconsideration can be made by library patrons almost guarantees a large number of these requests and invites a potential for abuse of this system. It will likely take years to review a high volume of challenged materials, despite the fact that the challenges are without legal merit.
The potential policy of relocating challenged works pending review violates the Constitution, because it removes protected works from the shelves. It provides a presumption in favor of censoring books, when actually the presumption should be that creative works are protected from government censorship except in extraordinarily rare circumstances. Federal courts have held that stigmatizing controversial books by relocating or removing them from circulation is a First Amendment violation.1 Content-based restrictions are presumed invalid and must meet a very high burden of government interest to be justified.2 The Supreme Court has also required that book challenge schemes comport with Due Process,3and it violates Due Process to pull a book from shelves while it is under review.4
This potential policy will allow some residents to effectively censor what the rest of the Parish can access on library shelves. Taking works off library shelves violates the First Amendment’s Free Speech Clause and the Fourteenth Amendment’s Due Process Clause. While we understand Member Davis’s comments in support of representative government, the First Amendment exists to protect all viewpoints. Material cannot be removed because it is unpopular or a minority viewpoint.5
1 Board of Education v. Pico, 457 U.S. 853, 872 (1982) (holding that “school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’) (quoting West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943)).
2“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 US 58 (1963) (citing Near v. Minnesota, 283 U. S. 697; Lovell v. City of Griffin, 303 U. S. 444, 303 U. S. 451; Schneider v. New Jersey, 308 U. S. 147, 308 U. S. 164; Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 306; Niemotko v. Maryland, 340 U. S. 268, 340 U. S. 273; Kunz v. New York, 340 U. S. 290, 340 U. S. 293; Staub v. City of Baxley, 355 U. S. 313, 355 U. S. 321). 3 Freedman v. Maryland, 380 U.S. 51 (1965).
4 Quantity of Books v. Kansas, 374 US 205 (1964) (holding procedure that seized books before obscenity hearing was unconstitutional prior restraint for lack of safeguards against the suppression of non-obscene books); see also Freedman v. Maryland, 380 U.S. 51 (1965) (holding unconstitutional censorship by administrative procedures that fail to provide prompt judicial review).
5 E. g., Reno v. American Civil Liberties Union, 521 U. S. 844, 880 (1997) ("It would confer broad powers of censorship, in the form of a 'heckler's veto,' upon any opponent of indecent speech [to invoke the presence of a minor online in order to activate criminal liability for other persons online]"); see also Hill v. Colorado, 530 U.S. 703, 734-35 (2000) (“Private citizens have always retained the power to decide for themselves what they wish to read”).
John Giffen Weinmann Hall, 6329 Freret Street, Suite 130, New Orleans, LA 70118-6248 tel 504.865.5153 fax 504.862.8753 1-800-670-0342 www.law.tulane.edu
We ask you to reject any potential policy that allows books to be relocated or removed from library shelves while they are under review. Only works that meet the legal definition of obscenity may actually be removed. This has been the law of the land for a long time.
We appreciate that the Board faces political pressures and thank you for the careful attention you have demonstrated. We lend our voices in support of Livingston residents asking you to adhere to the Constitution and protect our libraries as places of free and open inquiry. We hope that you will reject any relocation or removal policy as inconsistent with the Constitution’s presumption against censorship.
We are available to discuss this matter further with you or your counsel at your convenience and thank you in advance for your attention to our concerns.
Sincerely,
Katie Schwartzmann, Director
Virginia Hamrick, Legal Fellow
Hannah Mulholland, Student Attorney
Kellie Jackson, Student Attorney
Tulane First Amendment Law Clinic
cc: Michelle Parrish, Dustin Cotton
John Giffen Weinmann Hall, 6329 Freret Street, Suite 130, New Orleans, LA 70118-6248 tel 504.865.5153 fax 504.862.8753 1-800-670-0342 www.law.tulane.edu