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[Dale Carpenter, September 15, 2008 at 9:57am] Trackbacks

Did Palin try to ban books from the local library?

Over the past couple of weeks, a number of claims made for and against Sarah Palin have been debunked. One persistent charge made by her critics is that she tried to remove objectionable books from the public library in Wasilla, Alaska, where she was mayor. In a generally critical examination of Palin's record in yesterday's New York Times, the reporters revive the story and provide a few fresh details. As the Times frames the allegations, they fit a narrative in which Palin is a religious extremist imposing her ideology on the town's institutions:

The new mayor also tended carefully to her evangelical base. She appointed a pastor to the town planning board. And she began to eye the library. For years, social conservatives had pressed the library director to remove books they considered immoral.

"People would bring books back censored," recalled former Mayor John Stein, Ms. Palin's predecessor. "Pages would get marked up or torn out."

Witnesses and contemporary news accounts say Ms. Palin asked the librarian about removing books from the shelves. The McCain-Palin presidential campaign says Ms. Palin never advocated censorship.

But in 1995, Ms. Palin, then a city councilwoman, told colleagues that she had noticed the book "Daddy's Roommate" on the shelves and that it did not belong there, according to Ms. Chase and Mr. Stein. Ms. Chase read the book, which helps children understand homosexuality, and said it was inoffensive; she suggested that Ms. Palin read it.

"Sarah said she didn't need to read that stuff," Ms. Chase said. "It was disturbing that someone would be willing to remove a book from the library and she didn't even read it."

"I'm still proud of Sarah," she added, "but she scares the bejeebers out of me."

There are two different episodes recounted here. One involves an alleged attempt by Palin to remove books when she first became mayor in 1996. The other involves the qualms she is supposed to have expressed about the book Daddy's Roommate when she was a city council member in 1995.

As for her actions as a new mayor in 1996, it's undisputed that Palin did have conversations with the librarian, Mary Ellen Emmons, during which Palin asked about library policy for the removal of objectionable books. The conversations, and the ensuing controversy about them, were reported in the local newspaper, the Mat-Su Valley Frontiersman on December 18, 1996. If you're interested in the issue, I advise you to read this contemporaneous account for yourself.

The short of it, as I read the 1996 newspaper article, is that Palin and Emmons disagreed even back then about what was said during these conversations and, more importantly, about how to interpret what was said. For her part, Palin claims that her inquiry about removing books was hypothetical. She was a new mayor and simply wanted to learn more about the library's policies, just as she wanted to learn more about all city departments. But she was not taking steps to ban any books. Consistent with what she said in 1996, Palin recently told ABC's Charlie Gibson: "I never banned a book, never desired to ban a book. When I became mayor in our town, it was the issue of: what if a parent came into our local public library and asked for a book to be taken off the shelf, what's the policy?"

However, Emmons charged in 1996 that Palin's inquiries were more pointed. "She was asking me how I would deal with her [Palin] saying a book can't be in the library," Emmons told the local paper. Emmons said she responded that she would fight any attempt to remove books. It's a "she said/she said" dispute, and one that may involve genuine misunderstanding about the motives behind Palin's inquiries.

At any rate, several weeks later Palin fired Emmons, which at first looks suspicious. But Emmons was fired along with several other city department heads appointed by the incumbent mayor she had defeated, John Stein. (Emmons was among those city officials who had publicly backed Stein.) There is no evidence Palin fired Emmons for resisting censorship. According to a report in the Anchorage Daily News on February 1, 1997, Palin reinstated Emmons after Emmons reassured her that she would support Palin's plan for a merger of the city's library and museum. The newspaper account of the reinstatement doesn't even mention the earlier book-banning controversy. The fact that Emmons, head of the Alaska Library Association at the time and an outspoken opponent of censorship, continued to work under Palin suggests that Emmons had satisfied herself that Palin would not be pushing to ban books from the library.

The other incident involves concerns Palin allegedly expressed as a city council member in 1995 over the book Daddy's Roommate, which introduces kids to a family headed by a gay male couple. The presence of the book in public libraries, along with Heather Has Two Mommies, has been especially irksome to religious conservatives over the past two decades.

While Palin may indeed have indicated a desire to remove Daddy's Roommate from the public library, there are a couple of problems with the account in the Times. One is timing. Unlike the 1996 dispute between Palin and Emmons, which was on the public record at the time, the 1995 conversation is only now coming to light, thirteen years after the fact. No contemporaneous accounts of the conversation are known to exist, and this incident was apparently not aired in any of Palin's subsequent campaigns for public office. Only now that Palin is a candidate for Vice President have we heard about it. Another weakness is possible bias against Palin. One of the sources is Stein, the incumbent mayor she defeated in 1996. The other source is Palin's 1996 campaign manager, Laura Chase. While Chase is quoted as saying she's "proud" of Palin, she also says Palin "scares" her. This suggests Palin and Chase may no longer be on good terms. I'm not saying Stein and Chase are deliberately lying, but they aren't exactly disinterested witnesses. At the very least a frank conversation in 1995 about Palin's moral objections to homosexuality may have morphed in their minds into a full-blown attempt to start banning "pro-homosexual" books.

Taken together, the 1995 and 1996 incidents can be interpreted either as (1) an aborted attempt by Sarah Palin to ban books from the public library or as (2) the responsible actions of a new mayor anticipating future disputes and desiring to know how the city was prepared to deal with them. If you take Palin to be a religious crusader hellbent on imposing socially conservative policies, you're likely to see these episodes as supporting the former view. If you think of her primarily as a competent and tough administrator pursuing an agenda of reform and accountability in government, you're likely to see them as supporting the latter view.

Unless we get more information, or some further corroboration of the story told by one side or the other, here's my bet about what happened. In 1995, Palin was a young mother and religious conservative concerned about things like abortion and homosexuality, in addition to taxes, spending, and government waste. She was aware of the controversy over Daddy's Roommate and other books and discussed the controversy with others, probably expressing her own discomfort with children accessing the book. But she made no effort to "ban" any books. As a new mayor, Palin anticipated some parents' protest over the presence of some books and genuinely wanted to know how such protests would be dealt with. She probably would not have fallen on her First Amendment sword to save Daddy's Roommate or other books in the event protests began but she wasn't herself eager to start a controversy over it. When she got resistance from Emmons, and public criticism when she fired the popular librarian for other reasons, she backed off on any fleeting thought she might have given to removing any books from the library shelves.

If I'm roughly right about this, there are a couple of things we learn here about Palin. First, her instincts and personal views on social issues do indeed lie with religious conservatives. If it were costless to implement a socially conservative vision of the world, she would do it.

But the second the thing we learn about her is more important: she is not a crusader for a religious agenda in her capacity as a public official. She's a pragmatic reformer and a quick study who learned as a new mayor that there are some things worth fighting about and others that aren't. She has learned to prioritize. Cutting waste and consolidating departments in city and state government are worth ruffling feathers and making enemies (as she has); removing a book from the library is not. There is no evidence that Palin made any further effort as mayor to ban books, or even expressed further qualms about any books. If she was a book-banner back in 1996, she wasn't a proud one since she denied it at the time, and has long since given up such ideas.

This emphasis on small-government conservatism over social conservatism fits her record as governor, where she has mostly ignored the "family values" agenda. She opposes abortion, even in cases of rape, but hasn't pushed new anti-abortion legislation. She believes in creationism, but hasn't forced it on the state's public schools. And she may personally believe that many aspects of modern culture are corrosive and immoral, but there isn't even a hint of book-banning in her post-1996 public record.

To many people, it wouldn't matter one bit if Palin still wanted to ban from public libraries books like Daddy's Roommate and others disliked by religious conservatives. It would even be a plus for some. But it would bother me quite a bit, even apart from whatever constitutional issues such actions raise, because it would suggest an unsettling degree of anti-gay obsession and, more generally, a willingness to use government to suppress opposing views. We may learn something more in the coming weeks that gives more ground to doubt her commitment to liberal values in government, but we aren't there right now. There remain fundamental reasons to be concerned about her candidacy, and some of them are contained elsewhere in yesterday's Times article, but my provisional view is that book-banning isn't one of them.

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[Eugene Volokh, September 15, 2008 at 5:01pm] Trackbacks

What Has the Supreme Court Said About When Government Libraries May Remove Books?

[Reposted because comments didn't work on the earlier version.]

The answer, it turns out, is that the Supreme Court has never given an answer. The issue was indeed before the court in Board of Ed. v. Pico, but — despite some people's reading of the case — the Court did not resolve it.

All the Justices in Pico seemed to agree that removing books for some reasons would be constitutional, for instance if the books used vulgarities that were reasonably seen as inappropriate for the books' target age group. Four Justices took the view that removing books based on disagreement with the ideas that the books expressed would be unconstitutional; they therefore voted to affirm the appellate court decision, a decision that sent the case back to trial court for factfinding on the motivation for the removals. But four other Justices took the view that a government's removal of books from its own library was constitutionally permissible (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans), and thus no further factfinding on the true motives was necessary.

That leaves one Justice, Justice White. He did concur in the judgment, voting to affirm the lower court decision that sent the case down for factfinding. But he expressly declined to endorse the constitutional view of either group:

The District Court found that the books were removed from the school library because the school board believed them "to be, in essence, vulgar." Both Court of Appeals judges in the majority concluded, however, that there was a material issue of fact that precluded summary judgment sought by petitioners. The unresolved factual issue, as I understand it, is the reason or reasons underlying the school board's removal of the books. I am not inclined to disagree with the Court of Appeals on such a fact-bound issue and hence concur in the judgment of affirmance. Presumably this will result in a trial and the making of a full record and findings on the critical issues.

The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case. If, for example, the District Court concludes after a trial that the books were removed for their vulgarity, there may be no appeal. In any event, if there is an appeal, if there is dissatisfaction with the subsequent Court of Appeals' judgment, and if certiorari is sought and granted, there will be time enough to address the First Amendment issues that may then be presented.

I thus prefer the course taken by the Court in Kennedy v. Silas Mason Co., 334 U.S. 249 (1948), a suit involving overtime compensation under the Fair Labor Standards Act. Summary judgment had been granted by the District Court and affirmed by the Court of Appeals. This Court reversed, holding that summary judgment was improvidently granted, and remanded for trial so that a proper record could be made. The Court expressly abjured issuing its advice on the legal issues involved. Writing for the Court, Justice Jackson stated:

"We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts. While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.

"Without intimating any conclusion on the merits, we vacate the judgments below and remand the case to the District Court for reconsideration and amplification of the record in the light of this opinion and of present contentions."

We took a similar course in a unanimous per curiam opinion in Dombrowski v. Eastland, 387 U.S. 82 (1967). There we overturned a summary judgment since it was necessary to resolve a factual dispute about collaboration between one of the respondents and a state legislative committee. We remanded, saying: "In the absence of the factual refinement which can occur only as a result of trial, we need not and, indeed, could not express judgment as to the legal consequences of such collaboration, if it occurred."

The Silas Mason case turned on issues of statutory construction. It is even more important that we take a similar course in cases like Dombrowski, which involved Speech or Debate Clause immunity, and in this one, which poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here. I therefore concur in the judgment of affirmance.

The Court's fractured decision in United States v. American Library Ass'n — where there was also no majority opinion — doesn't resolve the issue, either. And no other decisions outside the library context dictate, or in my view strongly suggest, a result. If the library were treated as a "designated public forum" that's generally open for a nearly limitless variety of speech, then the library wouldn't be able to set up viewpoint-based restrictions on such speech. But library shelving decisions have never been treated as such a forum, because the choice of what books to select in the first place inherently involves some content-based and often some viewpoint-based judgment. There's no caselaw that squarely tells us whether there are nonetheless constitutional constraints on such judgment, or whether removal decisions are constitutionally different from selection decisions.

In some ways, NEA v. Finley is somewhat on point, because it too involves government action that aims to impose some quality judgments, and that is inherently content-based; and Finley does suggest that "invidious viewpoint discrimination" in such judgments may be unconstitutional, though presumably non-invidious viewpoint discrimination would be permissible. But Finley's point is just a suggestion — the Court specifically stresses that "we have no occasion here to address an as-applied challenge in a situation where the denial of a grant may be shown to be the product of invidious viewpoint discrimination," and while there's also wording there that suggests such invidious viewpoint discrimination would be impermissible, there's no square holding. There is also no definition of when viewpoint discrimination becomes "invidious," and it's not clear to what extent the Finley case, involving arts grants, would carry over to the public library context (and especially public library books aimed at children).

(Note that Pico was a school library case, and one could certainly argue that decisions as to other public libraries, and especially the adult-aimed collections of those libraries, are constitutionally different from decisions as to school libraries or as to the children's collections of other public libraries. But while this isn't an implausible argument, it is again not one that is firmly supported by existing precedent.)

So all this should make clear, I think, that there's no answer from the Supreme Court on the subject; nor to my knowledge is there a broad and firm consensus of lower courts. My tentative sense is that, when it comes to shelving and removal decisions, then-Justice Rehnquist's argument in Pico is the more persuasive one, at least as to the decisions in the inherently content-based field and often viewpoint-based field of what is on the library shelves (though not necessarily as to Internet access decisions, which could be content-neutral and especially viewpoint-neutral). I also tend to agree with David's view on whether such removal decisions violate basic libertarian principles, and with Dale's analysis of the specific controversy — involving Gov. Palin — in which the subject has most recently arisen. (I also think it's quite proper for people to fault certain kinds of book removal decisions on the grounds that those decisions show narrow-mindedness, or deny library patrons — including children — valuable information, and are thus improper even though they aren't unconstitutional or even more broadly rights-violating. Of course, as with many ethical judgments, such a judgment will turn considerably on the details of each case.)

But my point in this post is the narrower one, albeit one on which I think I can be more helpful: Contrary to what some have said, the Supreme Court has not decided whether and when a government-run library may remove books based on their ideas.