Censorship in Utah�What’s happening, what’s coming, and how to talk about it.

Park City Library Staff Development Day November 11, 2022

Peter Bromberg, Associate Director, EveryLibrary�peter.bromberg@everylibrary.org | 856-617-1899���

everyLibrary.org | action.everylibrary.org�SaveSchoolLibrarians.org | facebook.com/everylibrary

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What We’re Going to Cover

• About EveryLibrary
• New Law in 2022: Sensitive Materials (HB374)
• What’s Happening Now? Books being pulled
• How to Talk About It

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about everylibrary

EveryLibrary | Pro Bono 501(c)4 �Political Action Committee for Libraries

• Election Days and Negotiations
• Support for Legislative Agendas
• Crisis/Censorship/Rapid Response
• Outreach and Activism to the Public

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EveryLibrary Institute - 501(c)3 �Research and Policy Think Tank

• Research Agenda
• Training Programs
• Programmatic Partnerships and Coalitions

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Who We Work With on Censorship and Attacks on Librarians

We work with everyone, on political problems and solutions

at every point in the system across 50 states

• Librarians (public and school)
• Parents / Citizen Advocacy Groups
• State Libraries and Associations
• Directors
• Boards (Library, Foundation, Friends)
• Legislators
• Coalition Partners

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ENVIRONMENTAL SCAN

Environmental Scan: Challenges are on the rise

• School library challenges: Unprecedented numbers of challenges. Led by groups that were organized to protest masks → “anti-crt” → “parental rights” → “porn in libraries”
• We are seeing Increases in public libraries challenges �To materials, displays, programs. Boards targeted for takeover to establish restrictive policies.
• The nationwide network of individuals and groups �is getting stronger and better networked. Amplified by right wing media and social media.
• Challenges are focused on diverse content LGBTQIA+, BIPOC, Black American History (aka “CRT books”)

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Environmental Scan: Challenges are on the rise

everylibraryinstitute.org/book_censorship_database_magnusson

2021-2022 School Year

Over 4000 books challenged

Over 300 School Districts

Over 85 Book Ban Groups

Environmental Scan: Utah

• H.B. 374 Sensitive Materials in Schools May 2022. Subtly appropriates definition of indecent public displays and performances and applies it to school library books.
• AG Memo 1 and AG Memo 2 AG Office issues memo on 5/4 that clearly states that HB374 doesn’t impact the constitutional protection afforded school library books. On 6/1, this memo is withdrawn and replaced leading to…
• Books Being Pulled | Book Surviving Challenges Some districts are aggressively pulling books when they are challenged. Others are giving books due process, and (good news!!) generally retaining books. Things are in flux.

HB374: Sensitive Materials Definition

Interpretation of HB374: If books are pornographic (per definition above) we don’t have to evaluate them for value under the “Miller Test”. Or, “if you’re guilty, we don’t have to give you a trial”

Competing AG Memos: At Odds

May 4 Memo: "[A] work that contains nudity, sexual conduct, sexual excitement, or sadomasochistic abuse is not harmful to minors on its face… it MUST be considered under this three-factor test. [aka “Miller Test”]���

June 1 Memo: Section I227(2)(c) can be read as a legislative directive that no description of illicit sex in subsections (i-iii) could have serious literary, artistic, political, or scientific value. Under that interpretation, if a book contains any of the material listed in subsections (i), (ii), or (iii),HB 374 requires the book to be removed from a school library (see more)

Competing AG Memos: Area of Agreement

May 4 Memo: "Removing books before a determination is made as to whether they meet the definition of “harmful to children” runs the risk of violating students’ first amendment rights to study and inquire, via prior restraint."�����

June 1 Memo: "A cardinal rule of statutory interpretation is that when a statute is susceptible to two plausible interpretations, it should be interpreted to avoid the constitutional conflict."

Effective Messaging�How to Talk About Book Banning

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Three Languages of Politics�DANGER WILL ROBINSON!

Talking like an ALA/OIF strongly worded letter or press release may not be a recipe for success

voter perceptions of book banning �in the united states

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The EveryLibrary Institute commissioned a public opinion poll of American voters to understand political support and opposition �to book banning.

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The poll, conducted by Embold Research, a nonpartisan research firm, surveyed 1,123 registered voters from August 31st-September 3rd with a margin of error of 3.4%. The survey looked at the differences in beliefs among voters segmented by age, gender, race/ethnicity, education, and 2020 presidential vote. ��

Download the report at: everylibraryinstitute.org/bookbanpoll

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Voter perceptions of book banning �in the united states: Key Points and Messaging

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Voter perceptions of book banning �in the united states: Key Points and Messaging

Common-sense messaging is most broadly effective. It is more effective than saying that proponents of book banning are simply afraid �of anyone who is different from them.

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Voter perceptions of book banning �in the united states: Key Points and Messaging

Libraries and librarians are broadly favorably viewed so libraries are entering this issue from a position of strength - American voters have a high regard for libraries, and certainly have more affinity for libraries and librarians than they do for politicians.

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Voter perceptions of book banning �in the united states: Key Points and Messaging

It is effective to make specific books emblematic of this issue as a whole. Of those tested, it’s most effective to highlight children’s books and classic novels.

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Voter perceptions of book banning �in the united states: Key Points and Messaging

Voters are most offended by the idea that children and classic books are being banned.�

• Banning classic novels and children’s books are nearly universally opposed. �
• Support for banning increases to 18% when discussing books that focus on race�
• There is the greatest support (34%) for banning books about sexuality.

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Voter perceptions of book banning �in the united states: Key Points and Messaging

Voters are receptive to describing politicians who support book banning as closed-minded, dangerous, extreme, and short-sighted

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Rep/Ind voters are less likely to respond to accusations that book banners are “racist” or “homophobic”. So messaging to them on racism/homophobia will not be effective.

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Voter perceptions of book banning �in the united states: Key Points and Messaging

The possibility of charging library employees emerges as worrying among Republicans and Independents. � �We should talk about how this is happening around the country. (OIF reports 27 instances �as of Sept. 2022� � (UT, TX, RI, WY, FL, MI, WA, MO, etc.)

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Voter perceptions of book banning �in the united states: Key Points and Messaging

Effective messages include: �

• Children shouldn't have their education dictated by the whims of politicians or extreme activists.�
• Children’s books are being banned for random reasons. For example, The Lorax was banned because a school board member was a logger, and Walter the Farting Dog was banned because it has the word "farting" in it.

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Voter perceptions of book banning �in the united states: Key Points and Messaging

Effective messages include: �

• So many classic novels, such as “The Handmaid's Tale, “Of Mice and Men” and “To Kill a Mockingbird,” are being banned. These are treasured classics one minute and banned the next.�
• If you don’t like a book, don’t check it out.

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Voter perceptions of book banning �in the united states: Key Points and Messaging

Effective messages include: �

• Parents have the right to decide what their own children can and should read. But no parent has the right to make that decision for all other parents.�
• Legislators do not have the right to restrict your reading or your family’s reading.

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• Do you trust the government/politicians to decide which books your family is allowed to read?

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• Only 8% of voters think “there are many books �that are inappropriate and should be banned.” �
• Half of voters believe there is “absolutely no time �when a book should be banned.”

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• 31% of Republicans think there is absolutely no �time when a book should be banned. �

Voter perceptions of book banning �in the united states: Key Points and Messaging

Banned Books�Messaging Examples

Developing Effective Messaging

EXAMPLE�

Literature prepares students for �success in a complex world�

Short-sighted politicians are banning books.

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We trust librarians and parents to make those decisions for our kids.�

Developing Effective Messaging

EXAMPLE�

In America, we enjoy the freedom �of choosing what we read�

Extremists are banning classic novels �and children’s books

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If you don’t like it, don’t read it.�

Developing Effective Messaging

EXAMPLE������

Children shouldn't have their education dictated by the whims of politicians�

Do you trust politicians to make these decision?

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I trust parents to parent their own kids.�

Developing Effective Messaging

EXAMPLE�

As kids, we read these “banned books” �

Treat kids like snowflakes and they won’t be self-reliant or able to compete

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We’re limiting their opportunity for success.�

What’s Coming?

• Legislating Collection Development
• Removing exemptions against civil/criminal penalties
• Charges against LEAs (librarians? teachers?)
• Laws requiring books to be pulled faster
• What Else?
• Politicizing Public Library Boards?
• Other legislation to control public libraries?

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What Can We Do?

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ORGANIZE

SHOW UP

SPEAK UP

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�������Peter Bromberg, Associate Director, EveryLibrary�peter.bromberg@everylibrary.org | 856-617-1899����everyLibrary.org | action.everylibrary.org�SaveSchoolLibrarians.org | facebook.com/everylibrary

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Thank You

https://action.everylibrary.org/banning

BONUS SLIDES!

The Role and Value of Good Policy�

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Standard “I’m not a lawyer” disclaimer

The information provided in this presentation does not, and is not intended to, constitute legal advice.

Please consult with your legal counsel

regarding particular matters.

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Protected Speech, Censorship, and the First Amendment

The “Miller Test” (Miller v. California, 1973) is the primary legal test for determining whether expression constitutes obscenity or is entitled to the full protection of the First Amendment. It is a three prong test:

1. Whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest;
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

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Protected Speech, Censorship, and the First Amendment

• Censorship that violates the First Amendment is when �a govt. entity (like a library) suppresses ideas and information that certain persons find objectionable or dangerous�
• Materials are not protected by the First Amendment if they �fail the “Miller test.” That determination is made by a court. �
• Courts start with assumption that speech and published materials (including library collection) are protected �
• State statutes have language mirroring the Miller Test �(States can protect more speech than Feds, but not less)

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Protected Speech, Censorship, and the First Amendment�Harmful to Minors

State level “Harmful to Minors” statutes generally mirror language of the Miller test with qualifications such as “with regard to minors”��

Harmful to Minors” statutes: Courts apply ‘harmful to minors” statutes with consideration to the oldest of minors; so if material is “valuable” to a 17 year old, can’t remove it because it may be age inappropriate for 5 year olds.

The Role and Value of Good Policy

• Policy flows from & reflects the purpose/mission of the Library
• Policy governs day-to-day operations
• Policy ensures compliance with laws and regulations and protects the rights of all patrons and staff
• Policy reflects commitment to ALL residents
• Policy provides transparency in standards and procedures
• Policy ensures due process and consistency of service
• Policies require full understanding of all Board members

Elements of a Good Collection Development Policy

• Literary quality; Attention of critics, reviewers, awards, popularity
• Expertise, reputation, qualifications and significance of Author/Producer/Publisher
• Content representative of a wide variety of perspectives and authors
• Accuracy, currency, timeliness, and validity
• Local, self-published, independent, and small producers
• Format: Physical quality of; effectiveness of; appropriateness of; Resources in formats that meet the needs of users with disabilities
• Cost; Availability of discounts; efficiency of vendors
• Availability of subscriptions and standing orders for popular materials, reference and nonfiction items published or released annually

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Elements of a Good Collection Development Policy

• Aims for a balanced, diverse, and inclusive collection;
• Seeks a variety of ideas, information, stories, and experiences
• Considers the need for all subjects covered and viewpoints expressed
• Anticipates needs; Considers public demand
• Considers the availability of the same, or similar, materials �in other libraries or agencies
• Supports the mission of the Library and the Library’s Strategic Plan
• Supports “right to read” and principles of intellectual freedom (you may or may not want to incorporate ALA statements)

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Elements of Good Policy: Summary

• Is it good? (i.e. well-reviewed content; trusted authors/publishers)
• Is it good? (i.e. physically well-constructed)
• Is it good? (i.e. accurate, timely, valid)
• Is it affordable? (cost? discounts?)
• Is it reflective of a variety of perspectives
• Is it in accessible or preferred formats?

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Elements of a Good Reconsideration of Materials policy

• References the selection policy. Reinforces that selection of materials is based on the merits of the material and its value to the collection.
• Stresses that the use of library materials by patrons is an individual matter
• Notes that the responsibility for children’s and teen’s use of library materials rests with their parents or guardians (library does not act “in loco parentis”
• Places Limits on Who Can Initiate Process and how frequently: Only residents in the library’s funding jurisdiction may initiate a request for reconsideration.

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Elements of a Good Reconsideration of Materials policy

• Specifies the specific form that must be completed.
• Require that patron has read/listened to/watched the whole work.
• Transparently documents the procedure that guides a thoughtful, deliberative process for reconsideration.
• Notes that decisions regarding content in the library collection may implicate certain protections under the First Amendment.
• Notes that the Director or designee shall apply the selection criteria and consider each work as a whole. Excerpts will not be assessed out of context.

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Elements of a Good Reconsideration of Materials policy

• Policy specifies who will notify the patron and by when. Recommend that this come from the Director or Head of Acquisitions.
• Provides for a specified right to a written appeal. Initial appeal should go to the Director if initial decision is made by designee or committee, or to the Board if the Director made the initial decision.
• Appeals should follow the model of an appeals court and only determine whether policy and procedure were legitimately and properly followed. If yes, the decision is upheld. If no, the decision is remanded back to the Director with guidance on how to apply the policy.

Appropriate Application of Reconsideration of Materials policy

• Appeal should not re-litigate the decision
• Appeal should focus narrowly on whether the policies and procedures were followed by staff and Director (i.e. were selection criteria in policy appropriately applied?)
• If they were followed, the decision should be upheld.
• If they were not followed, Board should “remand” to Director to reconsider the request.
• Appeals are a possible danger zone for the board

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Appropriate Application of Reconsideration of Materials policy

• Appeal should not re-litigate the decision
• Appeal should focus narrowly on whether the policies and procedures were followed by staff and Director (i.e. were selection criteria in policy appropriately applied?)
• If they were followed, the decision should be upheld.
• If they were not followed, Board should “remand” to Director to reconsider the request.
• Appeals are a possible danger zone for the board

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DANGER ZONE

Reconsideration of Materials Policy: Recommendations

• Specify that patrons objections can only be initiated by those in your service jurisdiction or card-holder
• Consider changing language from “objection” to “request for reconsideration of materials.”
• Specify that reconsideration requests will be evaluated against �the selection policy
• Specify that on appeal, the Board (or appeals body) will determine whether policy and procedure were followed correctly
• Specify how long must pass before there can be another request for reconsideration for the same title. (Recommend: 3 years)

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What does the federal law say about book challenges?

• Materials have strong First Amendment protections. �Public libraries are a “limited” or “designated” public forum �prohibited from engaging in viewpoint discrimination.
• Removal of materials based on viewpoint (i.e. ideology or opinion) is prohibited in any public forum.
• Removing based on content is also prohibited unless library meets “strict scrutiny” test: (1) a compelling interest; (2) solution narrowly tailored to achieve compelling interest; and (3) opts for the least restrictive solution.

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The Risk of Not Following Policy - Costly Legal Challenges

• Not following policy opens up the Board to costly legal challenges that you are not likely to win. (Conferring with legal counsel for advice is strongly recommended)
• Courts interpret not following policy as “unconstitutional motivation”
• Remember the Miller Test: There is significant legal exposure in removing materials - even temporarily - if “taken as a whole” the work has “serious literary, artistic, political or scientific value” or if the work “taken as a whole” does not appeal to prurient interest.