The Trouble with Intellectual Freedom, part two

In yesterday’s post I talked about one of two major problems with Intellectual Freedom as it currently dominates the profession. That problem was the presumption of pre-social, autarkic individual derived from social contract theory and classical liberalism, and the unwillingness of proponents of IF to engage with any theory of social construction.

The other problem that I want to address is the question of the violation of rights. Every IF statement refers to a statement of rights, whether that is the American Bill of Rights, the Canadian Charter of Rights and Freedoms, or the UN Declaration on Human Rights. IF policy also often refers to a criminal code. This has the effect of tightly linking rights and criminal violations of those rights with IF in discourse and policy. Is is because of this tight linkage that libraries have gotten into the habit of declaring that they may only infringe a right if exercise of that right constitutes and infraction of the criminal code. Challengers to the dominant view of IF argue that library policy can and should be held to a higher moral standard than “does something break the law”. Libraries’ reluctance to go along with that is easy to understand: they can outsource any moral or ethical issue to the clear proceduralism of the law.

But this leads to some really incoherent positions. In the CFLA’s statement in defence of libraries refusing to countenance demands to exclude Abigail Shrier’s Irreversible Damage, made the following statement:

CFLA-FCAB affirms controversial expression is supported in the library. Equally so, challenge to controversial expression is supported. CFLA-FCAB does not, however, endorse the exercise of prior restraint (that is a decision to deny an expression of ideas by choosing not to make certain materials or speech available) as a means of avoiding controversy in the library.

(Full disclosure: IANAL). The reference to “prior restraint” here is laughable. Prior restraint is a term of art that, according to Cornell’s Legal Information Institute, means a prohibition on speech or other expression before that speech or expression happens. In other words, censorship before publication. This cannot apply to libraries in the collecting of already published material. Indeed, the Wikipedia article on prior restraint draws a firm distinction between “censorship imposed, usually by a government or institution, on expression, that prohibits particular instances of expression” and “censorship which establishes general subject matter restrictions and reviews a particular instance of expression only after the expression has taken place”. “Prior restraint” has to prevent and prohibit the expression from taking place; a published book ipso facto has already been published, the expression has already been expressed. Libraries cannot fall foul of prior restraint, and the CFLA’s refusal to endorse prior restraint has nothing to do with the matter at hand.

But the CFLA statement does not refer to prohibition or prevention of speech; it refers to “not making speech available”, which is an entirely different kettle of fish, and the kind of goalpost-moving we can expect from Intellectual Freedom defenders. This kind of sleight of hand makes it seem as though prior restraint could apply to already-published materials and involve restrictions on their availability.

This brings us to another CFLA statement, the response to the open-letter written by library workers in response to the Shier statement. In their response, the CFLA notes that “The standard that has been established by the courts for the abridgement of freedom of expression is very high, and we believe this standard applies to challenged materials in libraries”. But they are begging the question by presuming that excluding a challenged book constitutes abridgement of freedom of expression. Similar to the sleight of hand by which they made already-published books subject to prior restraint, they are assuming that excluding a challenged book constitutes abridgement. Essentially what they are saying is this: if a library were to exclude Shrier’s book, that would constitute an abridgement of free expression and we would fall foul of the law. But the conclusion does not necessarily follow from the premiss: the exclusion of a book from a library collection does not necessarily constitute an abridgement of free expression just as it does not constitute prior restraint. I would argue it does not constitute abridgement at all.

These two ideas are related: if exclusion from a collection is prior restraint, then it must also be an abridgement of free expression. But it is just as likely (I would say more likely) to be neither of those things. If so, then are we abridging free expression with every book we decide not to acquire? Are we thereby bound to collect every published expression because otherwise we would be committing prior restraint? Of course not. As every library professional knows, selection is perhaps the core principle of collection development, and we make selection decisions all the time.

Yesterday, Alan Harnum noticed something disturbing in the Bibliocommons front-ends of Vancouver, Edmonton, and Hamilton public libraries. Alan has written it up in a blog post but the kicker, in Alan’s summary, is as follows:

tl,dr: Bibliocommons, the popular discovery interface used by many public libraries in Canada (Edmonton, Vancouver and Hamilton were the ones I specifically found) has a user lists feature that can be used for publishing booklist content by anyone worlwide that will then appear under the library logo, site navigation and other branding. This includes COVID 19 conspiracy misinformation.

So now what challengers of hegemonic IF has argued is happening is clear as day: actively harmful, anti-social information - in this case COVID misinformation - is being promulgated (we might even say published) under the auspices of the library, an institution in principle committed to the trustworthy dissemination of the truth. COVID conspiracy theorists are leveraging the trust and authority of libraries to spread their harmful nonsense. Discussion on Twitter has turned up examples of similar lists featuring anti-semitic content, again under the auspices of the library. Library workers have ways of contextualizing harmful content; these reading lists bypass all that.

So now the libraries are in a bit of a quandary. Indeed, they face a similar problem that Facebook and Twitter face: they appear as publishers of this information, not just as platforms, but they themselves deny any responsibility for that content. And in truth libraries are not in a position to effectively moderate this content, even though it’s probably a fraction of the content that runs through Facebook and Twitter daily. They are in a position to effectively moderate collections and room rentals.

But where does this leave Intellectual Freedom? Libraries are very happy to have their name and brand associated with positive and progressive things, like Pride; are they just as happy to be associated with COVID misinformation and anti-semitism, as long as they can point to their defence of Intellectual Freedom? Those who live by social media features, die by social media features.

Libraries could turn off the user-generated parts of Bibliocommons, though I suspect these are fairly popular. But would that fall foul of CFLA’s “prior restraint” and constitute an "abridgement of free expression”? It wouldn’t have been either of those things before the advent of Bibliocommons; does the existence of Bibliocommons change that? Personally, I still don’t think any expression would be abridged. If we’ve learned nothing else over the last 18th months its that there is (unfortunately) no shortage of platforms for people to spout COVID misinformation and anti-semitism. So the question becomes exactly the same as the question I’ve asked with respect to other Intellectual Freedom issues: does the library have to be the place for these people to spout their hateful and dangerous opinions? With all the other options available in the information-rich 21st century, the answer is clearly no. Libraries need to be as selective in their public facing web content and their room rentals as they are in their collection development policies.

EDIT: Alan Harnum has posted an update to his original blog post, with links to some discussions and proposals for at least partly resolving the issue.