The Wake County Public Library system took a step toward protecting intellectual freedom this month when administrators unveiled a new policy for dealing with book challenges. The policy, comparable to those that similarly sized library systems across the nation use, makes it much more difficult to censor or ban books.
The library’s “request for reconsideration” policy came under scrutiny earlier this year when deputy library director Ann Burlingame and senior collection manager Theresa Lynch removed the graphic novel Gender Queer from shelves.
Although the book was restored to the library a month later—following backlash from librarians and the public—the controversy prompted county leaders to launch a months-long review of the library’s outdated policy.
Two weeks ago, library administrators presented the new and improved policy to the Wake County Board of Commissioners.
Addressing First Amendment concerns
Included in the new policy is a provision stating the library “reserves the right to restrict the availability of materials … not protected by the First Amendment.” That could include books that meet the legal standard for obscene or pornographic material, a primary complaint of parents lobbying to get LGBTQ-focused books like Gender Queer and Lawn Boy removed from libraries.
When Gender Queer was initially banned, administrators said some of the book’s illustrations could be considered “pornographic.” In a December email, Burlingame wrote she supported Lynch’s evaluation that “Gender Queer was not appropriate for a library because it depict[ed] illustrations that were concerning.”
“Defining something as pornographic is tricky,” Burlingame later wrote. “I follow the leadership of Justice Potter Steward, who said about pornography in [the U.S. Supreme Court case] Jacobellis v. Ohio , ‘I know it when I see it.’”
But meeting the legal standard for obscenity is much more difficult than simply deeming something “pornographic.” Under the library’s new policy, books would have to meet the state and federal definitions of “obscene” to be removed from shelves. Complaints from parents or conservative groups would not be enough to get a book removed, nor would the opinion of a single administrator.
Whether a work is legally obscene depends on whether it meets a three-pronged test established in Miller v. California, a 1973 Supreme Court case, says Deborah Caldwell-Stone, director of the American Library Association’s Office for Intellectual Freedom. In order to be deemed “obscene,” a work must meet each of the following three criteria:
• It must depict or describe, “in a patently offensive way,” sexual conduct, as defined by NC General Statute 14-190.1. (See box.)
• A reasonable person, applying nationwide community standards, must find the work as a whole appeals to the prurient interest, meaning solely for the purposes of sexual titillation or stimulation.
• The work must lack serious literary, artistic, political, or scientific value.
“So clearly, Gender Queer would not meet that standard,” says Caldwell-Stone. “It is a literary graphic novel memoir, a coming-of-age [story], that happens to, at parts, deal with sexual topics.”
The way the Wake County Public Library cites the First Amendment is not necessarily an issue, Caldwell-Stone says, “but there should be a thorough understanding of what that means. [Obscenity] should be measured by the state statute.”
North Carolina’s obscene literature law (NCGS 14-190.1), last updated in 1998, mirrors the Supreme Court standard by outlining a multipronged test for obscenity.
Who should judge whether something is “obscene”?
During the Wake County Commissioners meeting last month, Commissioner Matt Calabria said he is concerned that a panel of librarians would not have the legal expertise necessary to make appropriate decisions about book challenges. There were two issues with the decision about Gender Queer, he said.
“One was we didn’t really have a well-defined process. And two is, I’ll just say it, I don’t think we adhered to the legal criteria that are appropriate,” Calabria said. “I don’t want to respond in a way that allows laypeople, without any legal background, to make substantive constitutional decisions that are unimpeachable, and we don’t give them any guidance about what they can and cannot do under the law.”
Wake County’s Community Services program manager Frank Cope replied that if a book was challenged on the grounds of “obscenity” or another First Amendment concern, the library would consult the county attorney’s office. Leaders plan to add a provision to the policy clarifying how and when a lawyer will be involved in book challenges.
The American Library Association advises that libraries have a lawyer on retainer to consult on legal issues, Caldwell-Stone says. But there are some potential snags in using the county attorney to fill that role.
“There’s a conflict of interest, especially when there are elected officials arguing a book should be pulled and you have the county attorney make a decision,” Caldwell-Stone says. “It should be independent legal counsel that doesn’t also represent the police department and the county government.”
A better policy
Overall, the library’s new policy for dealing with book challenges is a good one. Like other libraries, it cites the freedom to read and vows to protect the right of patrons to access “controversial, unorthodox, or even unpopular ideas.”
Under the new policy, the library will accept requests for reconsideration only from Wake County residents and/or permanent cardholders. This is to ensure the process belongs to those who use the library and to prevent people living out of state from attempting to ban books, says Sarah Lyon, senior manager of Library Experience and Youth Services.
The policy also outlines the library’s selection policy, which is part of the metric used to evaluate whether a book should be removed. If a book meets criteria for selection—for example, if it is in high demand or has received positive reviews from library professionals—it’s likely to stay in the collection.
Once a request for reconsideration is submitted, a nine-person committee will review the challenge. The committee includes the selection manager, currently Theresa Lynch; a book selector; and seven librarians. Two adult and two youth librarians will serve staggered two-year terms, while the other three, “with expertise in areas relevant to the challenged material,” are appointed on an ad hoc basis.
Committee members read the challenged material “in its entirety,” the policy states. When making a decision, they will consider resources from the American Library Association, the library’s selection criteria, reviews of the book, awards or nominations the book has received, data on the book’s circulation, and material presented by the requester in support of removal.
“It’s important to us that, even though we’re pulling our own source material, we’re also paying attention to what the requester’s initial concerns were,” Lyon says. “If the requester has any supporting material, that will be taken into account, so we’re looking at this from a fair and balanced perspective.”
The committee can decide to keep, remove, or relocate a book from one section to another. Their decision is final and the book in question cannot be rechallenged for five years following the decision in order to prevent people from repeatedly challenging the same book in an effort to keep it off shelves, Lyon says. During the review, challenged books will remain on the shelves, per the American Library Association’s guidance.
Under the new policy, “politics should have very little role,” said library director Mike Wasilick. “I think it’s important we’re aware of things [like Critical Race Theory] and they don’t have undue influence on us.”
Changing how books are selected and evaluated
Last year, in addition to removing Gender Queer, Lynch and Burlingame planned to remove the board book versions of Our Skin and Anitracist Baby. Although the books were still available in the library in picture book format, the decision raised concerns from librarians about parents and toddlers being able to access the books.
In some cases, moving books out of the children’s section can violate the right of young people and their parents to access them, because the books aren’t available where patrons would expect to find them.
“We don’t regard it as a best practice to reshelve books to prevent access or avoid offending particular users,” Caldwell-Stone says. “The book should remain accessible for their intended audience and age group. It shouldn’t be moved because someone believes the subject matter to be sensitive or offensive to them personally.”
But, Caldwell-Stone adds, “I’d be more concerned if [Wake County Public Library staff] were removing them from the children’s collection altogether, which has happened in the past.”
In Wichita Falls, Texas, for example, the city council created a law allowing any 300 people to petition the library to move books from the children’s section to a restricted shelf in the adult section. The process was used to relocate Heather Has Two Mommies and Daddy’s Roommate, which a federal judge later ruled was discriminatory.
In Wake County, the decision to remove or relocate a book following a formal complaint is guided in part by the library’s collection development policies. Those policies also help book selectors decide which books to buy and where they’re shelved.
Immediately following publication of the INDY’s February story, in which two librarians raised concerns about a new “collection purpose policy” Burlingame and Lynch developed, administrators handed off development of that policy to a committee. Leesville library manager Kate Taylor leads the new committee. Comprised of staff volunteers, it is tasked with outlining standards for board books, picture books, and children’s nonfiction books—the same collections Burlingame and Lynch were reviewing.
When the committee finishes its work in the early summer, the county manager’s office will review the policy, said county spokeswoman Alice Avery. It will then go into effect countywide. Administrators plan to have a similar panel of volunteer staff review the larger collection development policy sometime in the future, Avery added.
Overall, librarians seem optimistic about the changes the library is undergoing. Visits from library system director Mike Wasilick and community services director Frank Cope have bolstered spirits and spurred conversations between librarians and administrators.
“Everyone I’ve heard from has been remarkably excited after meeting with [Cope]. People were talking like it gave them back hope and faith in the library,” says Rowan Dalzell, a part-time library assistant.
But some librarians are still skeptical. Although Wasilick and Cope have followed through on promises of more outreach and communication, staff are waiting on more concrete changes, says one library manager on condition of anonymity.
“It seems as though the library director] is trying to make things better, but most people want to witness ‘real’ change,” the library manager says. “It seems to me that he is concerned about his position and not so much about library staff.”
Dalzell acknowledges librarians do remain frustrated over some issues.
“Right now my feeling is that librarians generally are optimistic … but understanding that it will take time to fix everything,” Dalzell says. “Instead of ‘Trust but verify,’ something like ‘Hope but maintain vigilance.’”
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