Do You Allow Hate in Your Library?
The following article appeared in California Libraries January 2001 (Vol. 11 No. 1). Permission to reprint for nonprofit use is granted. The librarylaw.com column is not intended to replace legal advice. For a particular fact situation, consult an attorney.
What should a librarian know about hate speech?
A number of questions concern libraries and hate speech. For example, Internet sites sponsored by hateful or unpopular groups are accessible at your library. Groups that use the community room or leave leaflets may espouse hateful or unpopular beliefs. Your library may get complaints from people who are offended by the content of the programs or leaflets in your giveaway racks. You may get complaints about hate sites on the Internet, accessed in your library. Your library may get a request for books that you find deeply offensive, such as Holocaust denial literature. Finally, your library association or Friends group may decide to sponsor a controversial program on hate speech.
What is the definition of "hate speech"?
Black's Law Dictionary defines hate speech as "speech that carries no meaning other than the expression of hatred for some group, such as a particular race, esp. in circumstances where the communication is likely to provoke violence."[i]
Is hate speech protected by the First Amendment? Can library policies forbid "hate speech?"
Hateful, offensive speech, even directed at racial, ethnic and minority groups is generally protected from government censorship by the First Amendment. You may recall the Nazi march in Skokie, Illinois. In 1977, a Nazi organization planned a march in this predominantly Jewish suburb of Chicago that included about 5,000 residents who suffered direct persecution from the Holocaust. After a series of court hearings, the Nazi party was able to march. [ii]
As with all speech, only government interference is a trigger for First Amendment review. If your library is in a corporate library or a private school, you may restrict speech without concern for the First Amendment. [iii]
Universities with codes forbidding hate speech have been sued and have lost.[iv] Since speech codes directed against hate are likely to be unconstitutional, it's best to stay away from them, or at least consult an attorney before writing one.
You can't shout "FIRE" in a crowded library, though! Some speech isn't protected by the First Amendment.
That's right. The First Amendment is not an absolute. It doesn't protect obscenity (try filtering out obscenity from the Internet while letting the rest of the information through!)
Other speech that can be restricted by law or by policy include: fighting words, incitement, and defamation. Hate speech, in itself, in protected unless it also falls into one of these unprotected categories.
What are fighting words or threats in the library?
According to the Supreme Court, "fighting words" are epithets reasonably expected to provoke a violent reaction if addressed toward an "ordinary citizen." The Supreme Court held: "... such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."[v]
A threat must be a "true threat" with a specific target. Political hyperbole, even if "vituperative, abusive and inexact" is protected by the courts against a "background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."[vi]
For example, if a library patron says all civil servants are scum, he is participating in robust debate. If he says to a clerk, "I'm going to knock your head off, you government scum," that's "fighting words."
What is incitement in the library, and how does it differ from free speech?
The mere teaching of abstract doctrines is protected by the First Amendment. Even the advocacy of force against another group, say by a group like the Nazis in Skokie, is protected. The line is drawn, however, "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." [vii] This is incitement, and can be illegal. Much as you might find it abhorrent, offensive leaflets in your giveaway racks do not incite imminent lawless action. In the community room, with live speakers, the possibility of incitement is raised. If, for example, a white power group is using your community room and says, "Nonwhite children shouldn't be mixing with white children," it is protected free speech. If it says "Let's go into the children's room and round up all the nonwhites," that's incitement.
Isn't a comment made by a speaker in my community room that nonwhite children shouldn't mix with white children defamation? Can't I stop the speaker on that ground? What about on my giveaway racks?
Only if specific persons or identifiable groups are named. Defamation is the publication of anything injurious to the good name or reputation of another, or which tends to that person into disrepute. The term defamation includes libel, the written word, and slander, the oral word. Court cases over the latter half of the 20th century in the United States have made it extremely difficult to win a defamation case.[viii]
Group libel is defamation of an entire group. For a time, group defamation was also unprotected; i.e. you could have laws and policies restricting it.[ix] However, the courts have largely discredited the theory of group libel, and hateful comments directed toward a general group (such as nonwhites, Muggles [x] etc.) are protected by the First Amendment. Libel directed towards a particular person or group, such as comments directed against the NAACP or "The Society for the Advancement of Muggles" may be cause for a defamation lawsuit.
What if the speaker or the group is getting too loud or violent?
In a way, you are lucky! Your library policy should already have rules of conduct that you can apply, regardless of the content or viewpoint of the actual speakers! As long as you apply them uniformly to both loud hatemongers and to loud stamp collectors, you are not treading on thin ice.[xi] And of course if actual violence occurs, call the police.
Hate crimes are not protected by the First Amendment, right?
That's right. California is one of forty-two states (plus the District of Columbia) that have some form of a hate crime law on the books. Hate crime law enables prosecutors to seek increased penalties when a victim of a crime is targeted because of race, ethnicity, etc. [xii] Not entirely consistent with the Court's rulings on hate speech, the Court has upheld the validity of hate crime laws.[xiii]
California law criminalizes the use of force or threat of force to willfully injure, intimidate, interfere with, oppress, or threaten any person in the free exercise or enjoyment of a right or privilege because of that person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation. The penalties for felonies can be lengthened if based on a person's race etc. In September 1998, the Governor signed AB 1999, which added gender to the list of protected victims.[xiv]
Should libraries filter hate speech on the Internet? May they?
As we all know by now, filters are as precise as Gatling guns - often missing intended targets while taking out innocent sites. Even more perplexing than taking aim at obscenity sites, which are not protected by the First Amendment is aiming at hate sites which are protected.
This essentially means that libraries that are government funded libraries, (public libraries and public academic libraries) should not aim to block hate speech on the Internet. Allowing patrons a choice to use filtered or unfiltered access would not be considered censorship, and may provide an alternative for patrons who wish to be sheltered, even imperfectly.
Private libraries, including private school libraries, are not bound by the First Amendment and may choose to filter whatever they like. Private ISPs may also filter, and/or refuse to host hate sites, as determined by whatever criteria they wish.[xv]
- Public
school libraries are in a different position than other public
institutions. Public school classrooms, though government funded, are
considered by the courts to serve a special function of inculcating
societal values. School administrators have great latitude in determining
what speech takes place in the classroom. School libraries, on the other
hand, are closer to public libraries than to classrooms when it comes to
free speech. In the famous Pico
decision, enigmatic as it was, a plurality of the Supreme Court stated
that a school library did not fulfill the same role in inculcating values
as the classroom did. In fact:
" . . . students must always remain free to inquire, to study and to evaluate to gain new maturity and understanding. The school library is the principal locus of such freedom." [xvi]
It's not recommended that public school libraries filter out hate sites, although it's a good idea to educate students about these sites, and introduce them to sites such as hatewatch.org.
Haven't there been some recent Internet cases that found defendants guilty of making online threats? Doesn't this mean the First Amendment isn't protecting all online speech?
Yes. But it is important to realize that the cases are email and website threats targeting individuals, not websites with general hate messages.[xvii]
Should libraries collect hate literature as part of their collections?
Again we get back to definitions. One person's "hate literature" might be another's vision of satire or even truth. The Library Bill of Rights says that: "Libraries should provide materials and information presenting all points of view on current and historical issues. Materials should not be proscribed or removed because of partisan or doctrinal disapproval." [xviii]
Do public libraries buy Holocaust Revisionist Literature? According to a study by John Drobnicki, libraries were more open to Holocaust-revisionist literature than had been predicted and, regardless of outside pressures, would acquire and provide ready access to this material in their libraries. [xix]
My library already has Holocaust Revisionist books - can I withdraw them?
While the decision to acquire materials is a professional issue rather than a legal one, the decision to withdraw materials based on content or viewpoint is a contentious legal issue. In the only Supreme Court decision issue regarding the removal of materials from a library, the distinction between acquiring and withdrawing materials was deemed significant. [xx]
The bottom line is that withdrawing books based on content or viewpoint triggers First Amendment analysis, and opens the door to lawsuits.
Legally, it's easier to buy the materials than to withdraw them?
That's right. If you are not prepared to buy and keep the materials (withdrawing only based on content-neutral criteria, such as physical condition, superceded materials etc.), then be substantially prepared to defend any subsequent decision to withdraw based on other professional considerations such as authority, accuracy etc.
Another option is to use interlibrary loan to meet your patrons' needs. This makes the materials available to patrons without entering the withdrawal issue at all.
What if the Friends of the Library, Library Foundation or Library Association want to sponsor a talk or display by an unpopular/hate speaker? May they? If they are pressured to "uninvite" the speaker, what are the consequences?
Friends groups and library associations are not governmental bodies. Again, the First Amendment only stops government from restricting speech. A friends group or library association may invite and "uninvite" whomever it likes, even restricting speech, unless its own charter or bylaws are violated.
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[i] Black's Law Dictionary 7th Ed (West Publishing 1999), 1407-1408 Compare this definition to the broad definition of hate speech given by Human Rights Watch: "any form of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities, and to women." cited in Michael L. Siegel, "Comment: Hate Speech, Civil Rights, and the Internet: the Jurisdictional and Human Rights Nightmare," 9 Alb. L.J. Sci. & Tech. 375 (1999), in turn citing Samuel Walker, Hate Speech: The History of An American Controversy 8-9 (1994)(quoting Human Rights Watch)
[ii] Frank Collin and a Nazi organization called the National Socialist Party of America told the village of Skokie that 30-50 demonstrators would wear facsimiles of the German Nazi Party uniforms and carry signs with the message "White Free Speech." The village of Skokie filed suit to stop the march, and the case worked its way up to the Supreme Court, which refused to stop the parade by granting an injunction. The Court did not say the Nazis had a constitutional right to march, but it did say the Nazis had a constitutional right to be free of "prior restraints" unless special procedural safeguards accompanied the prior restraints. National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977). Skokie meantime passed ordinances prohibiting dissemination of hate materials, and prohibiting marches by political parties in military-style uniform. The Nazi party sued again, and the courts found the ordinances unconstitutional. Collin v. Smith, 578 F. 2d 1197 (7th Cir. 1978), Smith v. Collin, 436 U.S. 953 (1978). The rally was finally held; twenty-five Nazi demonstrators protected by four hundred Chicago police. For a full account of the case, see Rodney A. Smolla, Free Speech in an Open Society 151-169 (1992)
[iii] It is accurate to say that the First Amendment does not apply to private libraries. However, in California, "the Leonard Law" applies the First Amendment, to private postsecondary educational institutions. It provides that "no private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech . . . that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment. ..." California Education Code §94367(a). Student Robert J. Corry sued Stanford University based on a Stanford Speech Code that prohibited "discriminatory intimidation by threats of violence and also includes personal vilification of students on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin." Corry v. Stanford University, Case No. 740309 Order On Preliminary Injunction, Superior Court, State of California, County of Santa Clara, February 27, 1995 http://lawschool.stanford.edu/library/special/corrym.shtml Also, a library or its parent institution may have adopted First Amendment principles in its policies.
[iv] See Doe v. University of Michigan, 721 F. Supp. 852 (E.D. MI 1989); UWM Post v. Board of Regents, 774 F. Supp. 1163 (E.D. Wis. 1991); and Corry v. Stanford University, Case. No. 740309 (February 27, 1995)
[v] Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)
[vi]Watts v. United States, 394 U.S. 705 (1969) citing New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
[vii] Brandenburg v. Ohio, 395 U.S. 444, 448-49) (1969)(per curiam) At issue was a film showing a speech by the leader of an Ohio Ku Klux Klan chapter, asserting that revenge might be taken against the U.S. government if it "continues to suppress the white . . . race." Id. at 446. The Court upheld the First Amendment guarantee of free speech, and declared the Ohio statutes that restricted such speech as unconstitutional because it did not distinguish between person s calling for the immediate use of violence and those teaching an abstract doctrine about the use of force.
[viii] The plaintiff not only must prove that the allegations are false, but also that s/he is harmed by the assertions and that the persons making the statements acted with reckless disregard for the truth. Public figures have an even more difficult task to prove. They must show, in addition, that the false statements were made with deliberate malice. New York Times v. Sullivan, 376 U.S. 264 (1964)
[ix] In 1952, the Supreme Court said that the interests of "the peace and well-being of the State" may be compromised, at times, by false aspersions about the character of an entire racial group Beauharnais v. Illinois, 343 U.S. 250, 258-259 (1952). The Court upheld 5-4 an Illinois criminal libel statute that proscribed publications which portray the "depravity, criminality, unchastity, or lack of virtue of a class of citizens, f any race, color, creed, or religion [where the publication] exposes [them] to contempt, derision, or obloquy or which is productive of breach of the peace or riots." Id. at 250 The Court relied on libel theory and a danger theory, citing the tendency of such hate speech to produce interracial violence. Beauharnais, however, preceded Brandenburg and Cohen, both of which demanded greater showings of imminent danger from incitement than in Beauharnais. See Cohen v. California, 403 U.S. 15 (1971)(in which it was deemed unlikely that any individual present would have been provoked to violence by the defendant's wearing the words "Fuck the Draft" on his jacket in a courthouse.) Some consider Beauharnais to be a discredited decision. See, for example, the decision allowing the Nazis to march in uniform through the predominantly Jewish suburb of Skokie in fn 3.
[x] Muggles are humans that lack wizardry powers. Some wizards see them as inferior beings See J.K. Rowling, Harry Potter and the Sorcerer's Stone (Scholastic 1998)
[xi] Of course, this may not stop a belligerent patron from suing you based on First Amendment infringement. If you apply your policies in a content-neutral manner, you have a strong defense.
[xii] Wolf, Christopher, "Racists, Bigots and the Law on the Internet," originally published July 2000 by GigaLaw.com http://www.gigalaw.com/articles/wolf-2000-07-p4.html
[xiii] See Wisconsin v. Mitchell, 508 U.S. 476 (1993), a case involving a man who incited a group of young black men who had just finished watching "Mississippi Burning" to attach a young white passerby. The Supreme Court concluded, in part, that Wisconsin 's punishment-enhancement statute did not violate the First Amendment because it punished conduct not speech. The court avoided the First Amendment by making the speech-conduct distinction, and also by holding that beliefs relating to a to charged crime were merely motives traditionally considered by sentencing judges In June 2000, the Court determined that a hate crime law in New Jersey was unconstitutional, in part, because it allowed a judge to add to a defendant's sentence based on a preponderance of the evidence. Only a jury, using the "beyond a reasonable doubt" standard, can make the factual determination of the hate motive, necessary to increase the maximum prison sentence. Apprendi v. New Jersey, 2000 U.S. LEXIS 4304, 2000 Cal. Daily Op. Service 5061, 2000 D.A.R. 6749 (U.S. June 26, 2000).
[xiv] AB 1999 amends Sections 186.21, 422.75, 11410, 13023, and 13519.6 of, and adds Section 422.76 to, the California Penal Code, adding gender as a protected category. According to the legislative counsel's analysis of AB 1999, Kuehl. "Hate crimes: gender. (1) Existing law punishes as a misdemeanor, a person who uses force or threat of force to willfully injure, intimidate, interfere with, oppress, or threaten any person in the free exercise or enjoyment of a right or privilege because of that person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation. Similarly, existing law imposes an enhanced penalty on a person who, while acting in concert with another person, commits or attempts to commit a felony because of the victim's membership in one or more of the above specified groups. An enhanced penalty is also imposed on any person who commits or attempts to commit a felony against the property of a public agency or private institution because the property is identified or associated with a person who is a member of, or a group that is included within, one of the groups specified above. Additionally, existing law imposes enhanced penalties on a person who commits or attempts to commit a felony because of the victim's race, color, religion, nationality, country of origin, ancestry, disability, or sexual orientation, and on a person for each prior felony conviction committed because of the victim's membership in any of the groups just specified." http://www.assembly.ca.gov/acs/acsframeset2text.htm
[xv] In the United States, relatively few ISPs regulate hate speech per se, but instead choose to ban speech that is unprotected by the First Amendment, such as libel. Section 230 of the Telecommunications Act of 1996 specifically state that ISPs will not be held liable on account of "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected." 47 U.S.C. 230(c)(2)(A) (2000)
Internet Service Providers in some countries have formed associations that enforce codes banning hate speech. For example, the Code of Practice of the Internet Service Providers Association of United Kingdom states that British ISPs "shall use their reasonable endeavors to ensure . . . service and promotional material do not contain material inciting violence, sadism, cruelty or racial hatred." Karen R. Mock and Lisa Armony, "Hate on the Internet," Speaking About Rights, XIII, No. 2, 1998 cited in Anti-Defamation League, "Combating Extremism in Cyberspace: the Legal Issues Affecting Internet Hate Speech" (2000)
[xvi] Board of Educ. Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982) The Pico decision continued, "As one District Court has well put it, in the school library 'a student can literally explore the unknown, and discover areas of interest and thought not covered by the prescribed curriculum . . . Th[e] student learns that a library is a place to test or expand upon ideas presented to him, in or out of the classroom." Right to Read Defense Committee v. School Committee, 454 F. Supp. 703, 715 (Mass. 1978). Petitioners emphasize the inculcative function of secondary education, and argue that they must be allowed unfettered discretion to 'transmit community values' through the Island Trees schools. But that sweeping claim overlooks the unique role of the school library. It appears from the record that use of the Island Trees school libraries is completely voluntary on the part of students. Their selection of books from these libraries is entirely a matter of free choice; the libraries afford them an opportunity at self-education and individual enrichment that is wholly optional." Pico, 457 U.S. at 867-868
[xvii] In United States v. Machado, 60 Asian students at University of California, Irvine, received threatening emails signed "Asian Hater," threatening to hunt all of them down and kill them. U.S. v. Machado, No. SACR 96-142-AHS (S.D.Cal.) - February 1998 In United States v. Kingman Quon, another college student was sentenced to jail for sending hate email, racially derogatory and stating that he would "come down and kill" Hispanic faculty members at California State University at Los Angeles and students at Massachusetts Institute of Technology U.S. v. Kingman Quon reported in "Nailing Net Hate Mail," Wired (July 29, 1999) http://www.wired.com/news/topstories/0,1287,20470,00.html. In Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, a website listed the names of 200 doctors who allegedly performed abortions, providing photos, home addresses, and the names of their spouses and children. Doctors who had been killed by anti-abortionists had been crossed out. The court issued an injunction against the website owners, finding a "true threat." Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, 23 F. Supp. 2d 1182 (D. Or. 1999)
[xviii] American Library Association. Library Bill of Rights. Section II. http://www.ala.org/work/freedom/lbr.html
[xix] Drobnicki argues that libraries should acquire some holocaust revisionist materials, because they, like the earlier forged Protocols of the Elders of Zion, are examples of anti-Semitism and prejudice that could, and should, be utilized by students and teachers as primary source materials to illustrate firsthand the ugly face of bigotry. John Drobnicki, "Holocaust Denial and Libraries: Should Libraries Acquire Revisionist Materials?" reprinted at the URL below and published in College & Research Libraries News , Vol. 60 (6), 1999, pages 463-464, a publication of the Association of College and Research Libraries, a division of ALA. http://www.nizkor.org/hweb/people/d/drobnicki-john/denial-and-libraries.html
In his study, Drobnicki found that while the results were ambiguous in some areas. The study is available online at http://www.nizkor.org/ftp.cgi/bibliographies/biblio.20a and at http://www.nizkor.org/contributors/drobnicki-john.html See also John Drobnicki's bibliographies of Holocaust Revisionist Materials, including a section on such materials in libraries http://www.york.cuny.edu/~drobnick/holbib.html#library and http://www.york.cuny.edu/~drobnick/holbib2.html
[xx] Board of Educ. Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982)
Special thanks go to Martha Minow, Newton Minow, and Adaire Klein for their assistance with this article.
Mary Minow is an attorney and consultant with librarylaw.com. She is currently writing a book on library law for the American Library Association with Tomas Lipinski. She is President of the California Association of Library Trustees and Commissioners.
Copyright© 2002 Mary Minow
minow@librarylaw.com
minow@stanfordalumni.org
www.librarylaw.com
Permission to reprint for nonprofit use is granted. The librarylaw.com column is not intended to replace legal advice. For a particular fact situation, consult an attorney.