Palmer City Attorney addresses public libraries and the law

Communities and cities across the Matanuska-Susitna Borough have been grappling with increasingly vocal calls by conservative community members for school and public libraries to remove certain books from their shelves. While the MSBSD formed a Library Citizens’ Advisory Committee to review and make recommendations to the 56 books on the challenged list, the focus has turned to public libraries. After a recent hearing with the MSB Library Board became contentious, Borough Manager Mike Brown issued a statement that paused further MSB Library Review committee meetings.

The Palmer City Council recently requested City Attorney Sarah Heath to give an overview regarding the history and understanding of the law as it applies to the Palmer Public Library.

This request arose from the two separate legal questions being asked by the City of Palmer. First, under Alaska criminal statutes, can any of the Palmer Public Librarian be arrested for distributing obscene materials to minors, when a minor check out a controversial book from the library. This concern arose when The Palmer Police Department had members of the public asking for the police to arrest the Palmer Public Librarians citing the Alaska criminal code defining ‘Distributions of obscene materials to minors.’

Palmer is not alone in this, as this issue has occurred in other jurisdictions around the United States where the local Prosecutor or Sheriff’s Office (s) offered further guidance on whether the distribution of certain public library materials met the elements of the criminal code.

Heath says it would be helpful for Alaska’s Department of Law, through the Attorney General’s Office, to offer guidance as to whether Librarians would be subject to criminal charges.

The second part of Heath’s summary letter addressed the possible civil liabilities to the Palmer Public Library if they remove or limit library materials to minors or other patrons. The answer is complex as it requires analyzing whether certain materials meet the civil definition of “obscene” and is therefore unprotected speech, which falls under exemptions of the First Amendment.

“This issue needs further guidance from Alaska courts which likely will be given as the current lawsuits involving the Mananuska-Susitina School District progress. Additionally, the State Legislature could also address the civil definition of Obscene.”

The letter followed a presentation given by Heath during the regularly scheduled Palmer City Council meeting regarding the current legal status of constitutional, federal and state law as defined and applied to a public library. That presentation was made after questions have been asked regarding books in the current library and the civil and criminal liabilities if a book is ‘obscene.’

The report, titled “Libraries and the Law: How the Law Relates to Library Materials in the Palmer Public Library,” is a 23-page summary of the current law and limiting or removing materials in the Palmer Library, what purpose it serves, what laws and authority libraries operate under, and do public libraries have any legal obligations. And specifically, what is Palmer authorized to manage and under what authority?

Established and officially recognized in February 1946, the Palmer Library operates as a service to the City of Palmer, with a mission to “provide residents of Palmer and the Matanuska-Susitna Borough ready access to a broad collection of materials in a variety of media that record human knowledge, ideas, and cultures; organizes these resources; provides guidance and encouragement in the use of library materials; provides the community with access to reliable and available sources of information and reference…”

Heath said that while the Palmer Public Library is funded and managed by the City of Palmer, its mission and purpose are not recognized to be an extension of the government. “…the public library is decidedly not the state’s creature; it is the people’s.”

She examines the First Amendment and how it applies to the City of Palmer, minors, and what exemptions, if any, can be applied. The First Amendment, in part, reads that “Congress shall make no law…abridging upon the freedom of speech or of the press, or the right of the people peacefully to assemble.” To that end, Heath cited Ashcroft v. American Civil Liberties Union, saying that the burden lies upon the government body, not an individual, since the government has no power to restrict the expression because of its message, its ideas its subject matter, or its content.

“When a governmental body passes a law that may restrict or infringe upon a Constitutional right, strict scrutiny is applied to reviewing the constitutionality of the proposed law, again placing the high burden on the governmental body to prove that the law was passed to ‘further a compelling government interest,’” she writes.

The areas where it does not apply usually include a proven compelling governmental interest to protect the public by imposing limitations on persons or groups, and that encompasses obscenity, defamation, incitement, child porn, fraud, and grave and imminent threats.

Heath cited several court cases dealing with limitations within the First Amendment rights, including Fayetteville Public Library v. Crawford County, which was heard last year, and argued that the freedom of speech is enjoyed by everyone-even children. “However, by virtue of the fact that minors are ‘not possessed of that full capacity for individual choice.” Heath also cites Ginsberg v. New York and Tinker v. Des Moines School District, which summarily said that minors’ First Amendment rights are limited in some way.

When turning to obscenity, Heath addresses the elephant in the room—where is the line drawn on what is obscene, asking is it course language, references to drugs or sex, and who has the authority to define ‘obscenity’ and determine who has the authority to tell the public what they can and cannot read or access?

“There is often a significant difference between what an individual community member or community members may subjectively determine as obscene and what they law says is obscene.”

Currently, the state of Alaska definition for obscenity found in Alaska statute, A.S. 11.61.128, summarily states that any person aged 18 or older who intentionally distributes or owns with an intent to distribute material that depicts actual or simulated lewd touching of genitalia and specific body parts, or sexual penetration, and other specific examples listed in the statute.

The gray area within the statute is what is ‘harmful to minors.’ The statute defines it as material that the average individual, applying contemporary community standards, would find that the material, when taken as a whole, appeals to the prurient interest in sex for persons under age 16. The statute goes on to say that a reasonable person would find the material, taken as a whole, also lacks serious literary, artistic, educational, political, or scientific value. This makes it difficult for judges and courts to determine if the government should be allowed to control what people have access to read or view.

The report lists dozens of examples of actions that several states in the lower 48 are taking, including amending current obscenity laws, removing material from public and/or school libraries, moving books to different sections of the libraries or restricting access, and requesting state Attorney Generals to determine whether certain materials are harmful to minors.