FREEDOM CORNER: Laws on Obscenity, Censorship, Transparency, Confidentiality and Public Libraries

Staff Writer

In the current library controversy, legal arguments have been made regarding obscenity laws, First Amendment rights, Freedom of Information, Library Confidentiality laws, and library policies. The Goshen News researched documents applicable to these legal arguments.

Obscenity and the First Amendment

Several complainants filing Requests for Reconsideration of the book Gender Queer said the book was obscene or pornographic, and as such, either does not belong in the library at all or should be relocated to prevent access by minors under 18. A Library Board member referenced CT’s obscenity statute. A complainant referenced “Goshen’s Community Standards”.

CT General Statutes (CGS) Section 53a-193 states: (2) Material or a performance is “obscene as to minors” if it depicts a prohibited sexual act and, taken as a whole, it is harmful to minors... “[H]armful to minors” means that quality of … a prohibited sexual act, when (i) it predominantly appeals to the prurient, shameful or morbid interest of minors, (ii) it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (iii) taken as a whole, it lacks serious literary, artistic, educational, political or scientific value for minors.

The CT Office of Legislative Research notes that this statute “adopts the U.S. Supreme Court's definition of obscenity as defined in Miller v. California, 413 U.S. 15(1973).”

A 2022 Virginia lawsuit to classify “Gender Queer” as obscene and to restrict distribution to minors, including by libraries was thrown out by the presiding judge before trial, stating that restricting the book’s distribution would violate the First Amendment. The publisher’s filing challenged predominant appeal to prurient interest, stating: “Petitioner identifies seven pages of a 240-page book, ignores the context of those selections…, and asserts that the book is obscene. Petitioner’s conclusory assertions are unfounded when considering the entirety of the work.”

CGS 53a-193 also defines Community Standards: “Whether a material or performance is obscene shall be judged by ordinary adults applying contemporary community standards. In applying contemporary community standards, the state of Connecticut is deemed to be the community.”

Even if it were true that the book violates Goshen’s Community Standards, on which there is disagreement, that would not necessarily mean it violates a statewide standard.

Censorship

The Library Board considered relocating the book to “an upper shelf” or behind the collection desk. This would represent censorship. In 1998 US Northern District of Texas struck down a city Resolution that mandated relocation of any book from the Wichita Falls, TX Library’s children's section to an adult section, if 300 adult library members signed a petition. The two books in that case were about children living in families with homosexual parents.

In striking down the Resolution, the court decision stated:

“…The Resolution unconstitutionally confers a "heckler's veto" on the complaining patrons, effectively permitting them to veto lawful, fully-protected expression simply because of their adverse reaction to it. The Supreme Court repeatedly has invalidated other "heckler's veto" regulations as antithetical to core First Amendment values.”
“The Defendants argue that Plaintiffs' First Amendment rights are not implicated because no book is actually physically removed from the building…Even where a regulation does not silence speech altogether, the Supreme Court has given "the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content."
“Defendants also seem to justify the Resolution as a means of supporting some notion of "parents' rights," presumably involving the right to direct the upbringing of one's children.” … the Resolution can hardly be said to support "parent's rights," as it …allows one parent to suppress material not only for her own children, but for all others in the community.”

Transparency & Confidentiality

A Library Board member alleged that the Library Director violated the state’s Confidentiality statute by using library records to determine how many people in Goshen checked the book out of the library or read it online. There was Board member also attempted to keep the Reconsideration forms secret. Another Board member was admonished for speaking to The Goshen News about a matter pending before the Board.

Two statutes are relevant:

CGS Chapter 190 on Public Libraries, Section 11-25 on Confidentiality of Records states: “records maintained by libraries that can be used to identify any library user, or link any user to a library transaction, regardless of format, shall be kept confidential, except that the records may be disclosed to officers, employees and agents of the library, as necessary for operation of the library. (2) Information contained in such records shall not be released to any third party, except (A) pursuant to a court order, or (B) with the written permission of the library user whose personal information is contained in the records.”

No personal information was ever requested by or provided to The Goshen News and the statute was not violated. Aggregate numbers of library patrons who had checked out the book or accessed it online through the library were disclosed without identifying who they were. No-one had checked out the book since last July, at that point, as it had been removed. That was the basis for the Library Director’s conclusion, since retracted, that most of the complainants had not read the book.

The Request for Reconsideration forms, however, are unquestionably public records.

Section 1-210 of the CT Freedom of Information Act provides: “(a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.”
FOIC Director of Education & Communications, Russell Blair, told The Goshen News: “I don’t see how they could try to argue that those are not public records, and I don’t think there’s any reason why they shouldn’t disclose those.”

Accordingly, the Library “did the right thing”, according to Blair. They were required by law to provide the Request for Reconsideration forms to The Goshen News, and any attempt to seal them would be improper.

Finally, regarding discussions of pending matters by a Board member with The Goshen News, or any town resident, the FOIC has previously provided guidance on this question. In an earlier email to The Goshen News, Mr. Blair stated:

“There is nothing in the FOI Act that prohibits elected or appointed officials from communicating with citizens.”

We revisited the question regarding the potential admonishment of a Library Board member for talking with The Goshen News.

“It’s not an FOI issue. There’s no law that… would prohibit any [board] member from talking to the Press…Maybe their fellow board members are not happy with what the person said, but it’s their right to say it…They would be punishing someone for doing something that’s perfectly legal