Law schools and law libraries: grant application, bibliography, article, and memos

PROPOSED LAW SCHOOL BUILDING FOR TEXAS TECHtJOLOGIGAL COLLEGE

LUBBOCK, TEXAS

Grant Application for Assistance Under TitleIIoftheHigherEducation Facilities Act
Graduate Academic Facilities Program

TITLE PAGE

1. TitleofProposal;
BulMing for the School of Law, Texas Itechnological College

2. NameandAddressofSubmittingInstitution:

Texas Technological College Lubbock, Texas 79^09

3. Field of Graduate Education Involved:
Professional Gradixate Degrees in the Field of Law

U. Estimated Graduate Project Development Cost: $
5. Amount of Grant Request: $ 1,018,^99
6. OtherFederalGrantsorLoansforwhichpartsofthissameProject

have been or will be submitted: None
7. InstitutionalRepresentativefortheProject;

Name: M.L.Pennington

Title: VicePresidentforBusinessAffairs

4,

Tel. No.: Area Code 8 o 6 , PC 2-8811, Ext. 2128 8. Signature of Legally Authorized Officer:

Name: M.l(Pennmr^ton
Title: Vice President for Business Afiairs

Tel.No.: AreaCode8o6, PO 2-8811, Ext,2128 Date: September28,I966

1-1

SUIMAKI OF THE PROPGSAI, 2,1 Natirre of the Project

The proposed hixilding is to he the peimaaent quarters of the
new School of Law, scheduled to accept its first entering class in
the Fall of 19^7 temporary quarters,' It -sd-ll contain the following hroad catagories of academic activities:

1, ClassroomsandSeminarRooms
2, Special LihDraries or Readiog Rooms
3, OtherTeachingandResearchFacilities

Supporting Rooms and Shops
5. Faculty Offices
6, Graduate Student Offices or Cubicles 7. Administrative Offices and Areas
8, Total Assignable Square Feet
9* Total Gross Square Footage

Assignable Square Feet 11,531
39,5^^0

h,393

8,058

8,833 3,816

-m,81^5

117,963

The approximate number of personnel to be accommodated in the building is:

Administrative 8 Facxilty and research personnel k9 Students
Libraiy staff

2,2 KeedfortheProject

In 1961^ vtien the need for another law school in Texas \vas first recognized, there \Tere 2,415 law students in the then existing seven schools within the State. In 19^3, the Board of Directors of Texas Technological College recognized this heed and approved a motion to request a new law school from the Texas Commission on Higher Education.

By the time the appropriate procedures had "been taken "by that Commission and its successor, the Coordinating Board, Texas College and University System, and an appropriation had "been passed hy the State Legislature in 1965# there were 3^77^ students in those same seven law schools. Several of them had more than reached the capacity for "vdiich they

were huilt.
Geographically, Texas Technological College is located 38O miles

from the nearest state supported law school in G?exas and 323 miles from the nearest independent law school in the state. The closest out-of-state law sphools are located in Norman, Oklahoma, 3^5 miles from Lubbocl<:, and in Albuquerque, New Mexico, 31^ miles distant.

Within the boundary mentioned in the statute vhich created Texas Technological College, i.e., the area north of the 29th parallel and

•VTest of the 98th meridian, and which it is primarily designed to serve,thereare107comtiescovering13^1-^319squaremiles. The population of the region according to the I96O census was 1,853^8^5• Within this IO7 couaty area, attention should be drav/n to the 7^ county area which lies closer to Lubbock than to Dallas or Austin (the loca­ tion of the "tvra closest law schools in the state) and which is defined as the West Texas area. TIais region had a population inerease of 283,272, or 22/5 from 1950 to 19dO.

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In s-uimaary, existing Texas law schools have heen expanding rapidly ("better than a 55^ increase in enrollment in foxir years, and more than a 68^ increase in full-time student equivalents)"but, with several at and "beyond capacity, they are una"ble to satisfy the demandforlegaleducationinTexas. Geographically,noTexaslaw school nor those in adjoining states has ever adequately served the West Texas area with legal education, the closest school "being
316 miles a^ira-y, all this in an area T'jhich is growing at least 10^ faster than the rest of the state. During the same four year period mentioned a"bove, enrollment at Texas Technological College, the second largest education institut'ion in the state in full-time studentequivalents,increasedmorethan59^« Duringthepastyear, enrollment at Texas Tech increased "by almost l8^, a rate substanti­ ally faster than any of the other eight largest state institutions of higher learning in Texas.

Graduate Instructional Objectives of the Institution •'""'' •"'' ' •' ' "•

Earlier this year, the Coordinating Board, Texas College and University System, in esta"blishing the role and scope of Texas Technological College, authorized the College, and only three other state operated institutions, to expand and improve their graduate programs and to grant doctorates. More recently the Coordinating Board recognized the excellence of Texas Tech "by approving the upgrading of the Department of Education into the School of Education. All departments and schools of the College ^•jill participate in the newly created International Center for Arid and Semi-Arid Land Studies,

thoiJgh perhaps none vlll contribute as much as the new School of Law, especially in the field of water law.

Although the College was originally created primarily to serve the West Texas area, its quality and scope have grown to the extent that it is now one of the four multipurpose public universities operatedbytheStateofTexas. Over30percentofthestudentscome from beyond a 200 mile radius. After Lubbock County, the two co\mties supplying the largest number of students during recent years have been Harris Covinty (Houston) and Dallas County.

h SomrceofFundsandTiming

The nonfederal share of the funds needed to undertake construction of this project will come from the Constitutional Ad Valorem Tax Funds provided by Article VII, Section If, of the Texas Constitution and

the funds are now available.
Present plans call for the working drawings and bidding documents

to be ready about July,"I96J, and with approval of grant funds under Title II of the Higher Education Facilities Act, the project should bevinderconstructionwithinanotherforty-fivedays. Thearchitects estimate the construction time to be twelve months.

Continued financial support and developnent of the Law School and other graduate programs is assured. In recent action, the Coordinating Board, Texas College and University System, revealed that it would aid in developing Texas Tech's graduate and research programs to a level among the best in the State.

PROJECT BUDGET
1. Landcostsandpurchaseofexisting"buildingifaccepta"ble$

Rone- 5>000

2. SitePreparation 3. Utility Connections

a. Electrical- "b. Water

$

$ 7^0 c. SanitarySewer...... $ ^02

d.Gas

e. Pro rata part of Central Heating & Cooling Plant See Exhibit 3A

f. TunnelsandPiping,Steajn & Chilled Water Distribu­

$ 600

$ 371,^1? tion........... $168,000

h. Otherconstructioncosts 5. Fixed Equipment . . . .

6. Architectural/Engineering Services
7. Resident Construction Inspector
8. Administrative Expenses
9. Total ConstructionCost(sum lto8),.,,,

10, Movable Equipment
11. TotalDevelopment{svmItolO)
12. Cost provided from nonfederal sources 13. Grant requested from Office of Education l4. Costpergrosssquarefoot

$ 557,^'-69
$ 2,076,000
$ 14-5,000
$ 161,008
$ 8,1400
$ 1,000
$ 2,853,877
$ 201,608
$ 3,055,^85
$ 2,036,990
$ 1,018,1495
$ 25.90

$ l6>100

3-1

EXHiBrr 3A
Heating and Cooling Plant 1. Total Cost

Cooling $1,902,999 Heating 1,89^,^82 $3,797,681

2, CapacityBTUHeating

3. CapacityTonsCooling

.

4, Peal^HeedHeating(LawSchoolBxiilding)

5, Peak Heed Cooling (Law School Building) •

6. Peak Heating _ 25,000,000 BTU/Ht CapacityHeating ~ 400,000,000BTU/Hr

7' Peak Cooling ^ 8OO Tons Ca-pacityCooling ~ 6,000Tons

8. Cost of Facility for Heating (1,894,682 X .0625)

9. CostofFacilityforCooling (1,902,999 X .133)

" _

=

=

400,000,000BTJ/Hr 6,000Tons

25,000,000BTU/Er 8OO Tons

,0625 .133

$ll8,4l8

253,099 $371,517

10. Prorated cost of facility for Heating-Cooling = Law School Building

'

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EXmBIT 3B

LEGAL A105 AIMINISTMTIVE EXPENSE

Administrative Expense (Advertising for Bids)

FACILiry PLAN

^<••1

Description of Facility Plan

Theproposedfacility-vd-UhoxisethenevlycreatedSchoolofLaw exclusively and when constructed will "be similar to the existing peimanentcampus"btiildings. A"brickexteriorwillcoverareinforced concrete structural frame, enclosing year-round air conditioned
spaces. Steamandchilledwaterwill"besuppliedfromaproposednew central campus power plant. The design calls for a three level struc­ ture with two floors above grade. ®ie library stacks extend vertically atallthreefloors.Theclassrooms,.mootcourtroom,administration, library work center, and some faculty offices are situated on the "ground floor. The second floor houses the remaining faculty offices, a

facility library, and eight student conference rooms in addition to the stacks. Located in the'basement are locker rooms, a multipurpose room, a student typing room and the mechanical equipment space.

Assignable Space and Gross Sqmre Feet

Following Is a list of assignable space and gross square feet of the project;

1* Classrooms and Seminar Rooms

;1— 30 student 2 - 50 student 2 - 8 0 student

classrocan classroom classroan

9I+6 2,1^50 3>l80

1,891 2,255 809

2,486

737 29,006 660 232

237

198 1,464 957

258 1,650 918

465 272

570

1,008 2,200 315 300

1 - 100 student classrom 1 - 150 student classroom 1 - 30 student classroom

2, Laboratories
None programmed

3* Special Libraries or Reading Rooms

1 - Faculty Library
1 - General Reception

3 - General Stacks
1 - Ihfomal Reading

2 - B3.ind Reading
1 - Student Duplicating 1 - Microfilm
1 - Reserve Books
1 - Duplicate Books
1 - Rare Books
1 - Work Room

4 - Librarians 1 - Secretarial 1,-Receiving

4» other Teaching and Research Facilities

2 - Research Offices

8 - Conference Rooms 1 - Moot Court Room 1 - Office
1 - Attorney's Room

11,531

Square Footage

39,540

^,393

Hii

,8I+,81+5 .117,963

Square Footage

Supporting Rooms and Shops
2 - Locker Rooms 3,088

1 - Multipurpose Room

6. Faculty Offices

^,970

32 - Singles 5,501+

8,058

8,671+

2 - Doiibles
1 - Conference 890 1 - Secretarial

Gradtiate Student Offices or Cubicles

1 - 5^ing 1,1+51 1 - Law Forum 300 1 - Moot Court Board 1+39 1 - Office Ilk 1 - Law Journal 613

- Offices 516

l80 - Carrels

8. Administrative Offices and Areas

5ii+oo

1 - Dean's Office 320 1 - Associate's Office 2kO 1 - Assistant's Office 21+0 1 - Staff Conference 1+30

• 1-OfficeService
1 - Administrative Assistants 625 1 - Reception 732 2 - Placement 2I+O

9» ToteilAssignableSpace.., 10. Tot-alGrossSquareFootage,

570

989

8,833

3,816

1^-3

01

50 1^51 712 1^,970 300 2,376

03 05

115

121

1. 1  172

2. 2  285 6

Assignable Area "by Rocan and Level; Occupant

.

Room No.

Stacks(w/76 carrels @30 s.f.) 02 typing

Women's Lockers OU Multipurpose Rocm

Capacity

Net Area (Sq. Ft.)

Headini

3 &7 7
5
5
7
5

Puorpose or Use

Law Forum
o6 Men's Lockers

101. 101  Classroom

102. 102  Classroom

103. 103  Classroom

10k Classroom

105. 105  Classroom

106. 106  Classroom

107. 107  Classroom

108. 108  Faculty Office

109. 109  Faculty Office

110. 110  Faevilty Office

111. 111  FacultyOffice

112. 112  Faculty Office

"

2 Faculty Office 1

113
lli^ Faculty Office 1

Faculty Office 1 ll6 Facility Office 1

Faculty Office 1

117
118 Faculty Office

.1
1 172

Faculty Office 120 Faculty Office

6 1 172 6

119

Faculty Office 122 Faculty Office

6 1 172 6

Faculty Office
1214- Faculty Conference

123

890 6 1 320 8 1+30 8 1 2k0 8 1 2k0 8

2,200

125

126

Dean's Office Staff Conference Associate's Office

127

128. 128  Assistant's Office

129. 129  Secretarial

15 1,710 6 . 989 8 625 8 732 8

130. 130  Office Service

131. 131  Administrative Assistants

132. 132  Reception

133. 133  Moot Court Room

13i<- Office

135. 135  Seminar

136. 136  Placement 1 120 8

137. 137  Placement 1 120 8

30 9^46 1

80 1,590 1 •. 50 1,225 1 80 1,590 1

50 1,225 1 150. • 2,255 1 100 1,891 1

1 172 6 1 172 6 1 172 6

'1 172 6

285 6 172 6 172 6 172 6 172 6 172 6 172 6

1 315
30 809 1

9

ROCM NO. Purpose or Use

138 Moot Court Board 139 Office

Occupant Capacity

Net Area (Sq. Ft.)

Heading

7 7 3 3 & 7 4

7 7 7 7 7 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3

3 & 7 4 4 4 4 4 4 4 4 6 6 6 6 6 4 6

6 6 6 6 6 6

i4o ll+l 142 143 l44 145 146 14? 148

149 150 151 152 153 154 155 156 157 158 159

160 161 162

439 1 ll4

Library Reception
Stacks (w/21 carrels @ 30 a.f.) 6,488 Attorney's Room 300 Lav Jotimal 613 Office - 132 Office 132 Office 108 Office 144 Informal Reading 660

Blind Reading 116 Blind Reading 116 Microfilm 198 Reserve Books 1,464 Duplicate Books 957 Rare Books 258 Work Room • 1,650 Student Duplicating 237 Secretarial 3 465 Librarian 1 242 Librarian 1 242 Librarian

Librarian Receiving

1 242 1 192 272

Svibtotal(Firat Floor).. . . . . . . . . . 201 Stacks (v/87 carrels @ 30 s.f.)

12,440 126 126 126 126 126 126 ,126 126 2,486 1 172 1 172 1 172 1 172

285 1 172 1 172 1 172 1 172 •1 172 1 172 1 172

202. 202  Conference

203. 203  Conference

204. 204  Conference

205. 205  Conference

206. 206  Conference

207. 207  Conference

208. 208  Conference

209. 209  Conference

210. 210  Faculty Library

211. 211  Fac\alty Office

212. 212  Faculty Office

213. 213  Facility Office

2l4 Faculty Office

215. 215  Research

216. 216  Faculty Office

217. 217  Faculty Office

218. 218  Faculty Office

219. 219  Faculty Office

220. 220  Faculty Office

221. 221  Faculty Office

222. 222  Faculty Office

•

737

k-6

Room No.

223 22l^

225 226

227 228 229 230

Occupant Purpose or Use Capacity

Net Area (Sq» Ft.)

Heading

Subtotal (2nd Floor)

Faculty Office 1 Factilty Office 1 Facility Office 1 Research

Faculty Office 1 Faculty Office 1 Faculty Office 1 Faculty Office 1

172 6

172 6 172 6 285 4

•

172
172 6 172 6 172 6

19,600

6 -

^-7

GRADUATE EDUCATION PLAN
5*1 Educational OD.iectives and Plans for Attainment

As outlined in the summary of the proposal., the Board of Directors of Texas Technological College, the Texas Commission on Higher Education, its successor, the Coordinating Board, Texas College and University System, and the Legislature have all recognized the need for the addition of legal education facilities in West Texas, an area that is growing faster than the remainder of the State, Currently the closest law school

• in Texas is 323 miles distant. The University of New Mexico, the closest law school is 3l6 miles away.

The purpose of the School of Law as expressed in its preliminary announcement is to train young men and women for the practice of law anywhere in the United States, whether it he as advocate, counselor, judge, or law teacher in accordance with the highest traditions of professional responsihility.
At the same time,.recognition will he given to the use of law as the stepping-stone to a career in government, politics, or business.Thecurriculumandthemethodsofinstructionwill

he designed to develop in the student his highest potential, whatever may have been his reason for entering the School.

In addition, it is expected that the new law facilities will provide library and core faculty for short courses in new and specialized aspects of practice for the West Texas area, which the College originally was established to serve. Such coursesnotonlywillservetoeducatethemembersoftheBar, but will provide additional opportunity for contact between

students and attorneys, which is such a necessary part of practical as well as theoretical graduate, professional legal education.

The proposed building is designed to accomplish the above ends in the most efficient manner possible. Plans of more than 30 law school buildings have been studied and a comparable number of existing buildings have been viewed in order to take advantage of the best existing ideas in the design of law buildings. At thesametime,inordertotakeadvantageofnewdevelopments
in law and legal education, adaptability as well as expansion in size, have been prominent in planning.

The size of the classrooms was selected with a view
toweird maintaining first-year classes of an appropriate size
for maximum instructor-student contact. The size of the largest classroom was chosen so that some of the larger elective courses could be accommodated, and in addition so that emergencies, i.e.,illnessofaprofessor,necessitatingtheaccommodation
of two sections in one room would be possible.

Provision for adequate secretarial space will allow and encourage independent research on the part of the faculty, as well as by students and faculty in connection with seminars and electives.

Law students have a natural inclination to discuss the law
and its problems whenever two or more congregate. Such discussions need no formal encouragement, but adequate and comfortable areas and surroxindings must be provided if these natural tendencies
are to be fostered and encouraged.

5-2

5.2 Faculty
The faculty of the School of Law during 1966-67> the

planning year, consists of the Dean and the Law Librarian.
They and the other four members of the faculty planned for the firstyearofinstructioninI967-68,willdevotetheirfull
time to graduate instruction in law. The Dean and the Law Librarian were employed in February, I966, and have been engaged in planning various aspects of the School continuously since that time." The Dean made two visits to Lubbock, totaling more than two weeks, prior to assuming his permanent duties in Lubbock in July, 1966. Other visits to view legal education facilities, some in the company of the consulting architect of the College, were made before and after the Dean assumed his permanent residence in Lubbock.

Similarly,theLawLibrarianspentsubstantialtimein Lubbock prior to assuming his duties in August, I966, as well as attending meetings of librarians in connection with his

new duties. Fouradditionalfacultymembers,allexperiencedlaw

teachers,willbeselectedduringI966-67,inorderthatthe more detailed planning for the commencement of classes in September, 1987> niay have the benefit of the thinking of several established legal, educators.

A brief curriculum vitae of the Dean and Law Librarian follow.

5-3

NAME: RANK: EDUCATION:

EXPERIENCE:

Richard B. Amandes
Dean and Professor of Law

A.B., University of California (Berkeley), 1950* LL.B,, University of California, Hastings College

of the Law, 1953-
LL.M., New York University School of Law, 195^.

Private practice in San Francisco, California, 195^» Instructor in Law, University of Vfeshington, 195^-55. Teaching Fellow, New York University School of Law,

1955-56.
Visiting Assistant Professor of Law, University of

Washington, 1956-57.
Visiting Assistant Professor of Law, Southern Methodist

University, 1957.
Assistant Professor of Law, University of Wyoming,

1957-58.
Assistant Dean and Assistant Professor of Law,

University of Washington, I958-6O; Associate

Ptrofessor, 1960-64.
Administrator, Continuing Legal Education, State of

Washington, 1959-64.
Assistant Dean and Robert W. Harrison Professor of Law,

Hastings College of the Law, 1964-655 Associate

Dean, I965-66.
Dean and Professor of Law, Texas Technological College,

July, 1966 to present.

FIELDS OF INTEREST: Real Property, Criminal Law, Family Law, Professional Responsibility.

PUBLICATIONS: CoramNobis-PanaceaorCarcinoma,7HastingsL.J.48 (1955)^ reprinted in 6 Law Rev. Dig. 1 (1956)

Jury Challenge in Criminal Cases, 3 Wayne L. Rev. IO6 (1957)

Bock Review: Lesar, Landlord and Tenant, 34 N.Y.U.L. Rev. 183 (1959)

HowWeExamine,11J. LegalEd.566(1959)

Book Review: de Puniak, Handbook of Modem Equity, 13 s.W.L.J. 144 (1959)

Contributor, Current Issues in Legal Education, 9 Cleveland.- Marshall L. Rev. 582 (1960)

Annvial Survey of American Law, I96O, - contibuting author to Real Property Chapter, reprinted from 36 N.Y.U.L. . Rev. 357 (1961)

5-1^

PUBLICATIONS: (Continued)

From Voir Dire to Verdict Through a Juror's Eyes, 9 The Practical Lawyer 21 (October, 1963); reprinted in Missouri Bar Bialletin, July, I965

Contibutor, Current Issues in Legal Education, I3 Cleveland- Marshall L. Rev. 558 (1964)

The Defense of Indigent Persons Accused of Crime in Washington - A Sixrvey (vrith G. W. Stevens),

40 Wash. L. Rev. 78 (1965)
Editor, numerous Continuing Legal Education Handbooks,

Washington, 1958-64

Contributor to Washington State Bar News, 1959-64

Project Planning Guide, Addition to Hastings College of the Law Building (I965)

PROFESSIONALSOCIETIES

. •

AND HONORS:

* •'.

Member of: The Order of the Coif
Ed.ward S. Thurston Honor Society

Phi Alpha Delta Lambda Alpha Epsilon

American Bar Association
State Bar of California Washington State Bar Association Lubbock County Bar Association

Reporter, Committee on Significant Real Property Decisions, American Bar Association, I957-65; Chairman, I965-66

Member, Simmer Workshop for International Legal Studies, University of California (Berkeley), Summer 1958.

Chairman, Conference of Western Law Schools, Seattle, Vfeshington, 1959

Member, Seminar of Real Property Teachers, New York University, summer, 196O

Member, Executive Committee, Law School Admission Test Council, 1962-64

Member, Committee on Continuing Legal Education, Association of American Law Schools, 1962-64 •

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NAME: RANK: EUUCATION;

EXPERIENCE:

U. V. Jones
Associate Professor of Law and Law Librarian

F.A., University of Oklahoma, 1939
LL.B., University of Oklahoma, 19^1
Master of Law Librarianship, University of Washington, 1962

Comty Attorney, Kio'v.'a Connty, CSclahoma, 19^3-^6
Practice of Law, Snyder, Oklahoma, 19^6-60
Assistant General Counsel, Anderson-Prichard Oil Corporation,

Oklahoma City, Oklahoma, 195^—60.
Law Reference Librarian, School of Law, University of

Washington, 196O-62.
Assistant Professor of Law and Law Librarian, School of

Law, Emory University, 1962-65
Associate Professor of Law and Law Librarian, School of

Law, Emory University, 1965-66.
Associate Professor of Law and Law Librarian, School of

Law, Texas Technological College, August, I966 to present.

FIELDS OF INTEREST; Legal Research, Writing and Advocacy.

PUBLICATIONS; Contributor to supplement and assignments to accompany Pollack, Fundamentals of Legal Research. Third Edition.

Briefs submitted to the Supreme Court of the State of Oklahoma.

PROFESSIONAL SOCIETIES

AND HONORS:

Member of: President's Class (University of Oklahoma) * Blackstone Bar

Thalian
Pi Sigma Alpha
Beta Phi Mu
Pe-et (ten "best men)
Oklahoma Bar Association
American Association of Law Librarians Special Librarian Association President, Kiowa County Bar Association,

1953-5^^
President, Southeastern Chapter of American

Association of Law Librarians, 196^-66

5-6

5-7 5.3 EstimatedEnrollmentFiveYearsAfterCompletionoftheBuilding

As has heen indicated previously, the first students, a first year class, id.ll he accepted in the Fall of ISSj. A class of approxi­

mately 75 students is contemplated and 75 each succeeding year until the permanent building is available. At that time and as fast as pedagogically feasible, additional sections of 75 first year students will be added annually until the school is accepting approximately 225 first year students. Assuming the permanent building is completed in 1968^ by 1973 approximately 550-^00 students will be enrolled, the intended capacity of the building. ]^ersonal individual contact can be maintained between students and faculty in a school of that size.

Because of the tremendous growth of the West Texas area and Texas Tech in particular, there appears no doubt that the desired number of competent students -will be available for enrollment. Projecting the 1963 ratio of 1.31^ of law students to total college enrollment in Texa^, almost 5OO law students could, come from the Texas Tech campus alone, based on the predicted projection of 37.>500 students in 1975•

Plans for the School of Law call for a total maximum enrollment
of approximately 585* Ine requisite enrolliment in the first year
class for such a projected student body (approximately 225) could very possibly be reached duiring the coming year were facilities available
to handlethat nuimber. More than one humored inquiries were received regarding enrollment for the Fall of I966, one year before the scheduled opening, even though no official announcement regarding the school was available until late May, I966. Substantial additional but uncounted

inquiries vera made of the Admissions and Graduate School offices on thecampus, llhusitisquiteclearthatthefacilities-willhetised to their intended capacity as soon as it is pedigogically feasible to educate that nxmiher efficiently.

Faculty and Staff Research

Research ciirrently heing performed hy the Dean of the School is essentially empirical in connection vith establishing a building and assembling the first year faculty. Similarly, the research of the Law Librarian has been concerned with establishing and building a well designed, efficient Law Library.

Contribution of Hew Building to Educational and Research Plans

The proposed building will permit the School of Law to provid.e an outstanding legal education to approximately 585 students.

The library with its individual carrels, small conference rooms, microfilm and micro'card room and student duplication facilities will pemait abundant individual and group research by students generally. The Law Journal complex, the Moot Court Boardroom and the two research offices will encourage group research and publication which will benefit the academic community and the profession as well as the students who prepare the pxiblishable material.

As a result of the extensive planning which has gone into the building, the essential areas involved in the above tasks, i.e., classrooms, seminar rooms, library, research spaces, have been

5-8

complemented by the additional spaces so necessary to make an efficient working unit. An administrative suite has been planned for maximum internal efficiency of operation, while at the same time maintaining appropriate access for students, facvilty, and visitors to the school.

5.6 Contribution of Graduate Program to Expansion of Highly Educated Personnel and to the Development of Hew Levels of Graduate School Excellence

The School of Law at Texas Technological College, which was created by an act of the 1965 Texas Legislature, is the first authorization of professional graduate education in West Texas.
To complement this step forward in service to the West Texas area, an appropriate professional building is necessary. The need for highly qxialified, well trained lav/yers in the modem, complex
world is a recognized fact. As a result of society's needs and demands, the legal profession is following the pattern of the medical profession toward specialization and intensive research. Expansion

of the number of highly educated lawyers responsible to these needs can be accomplished only through a professional program such as that projected at Texas Tech.

5.7 Data on Salary Levels

Existing salaries of the Dean and Law Librarian are substantially above the national averages. An American Bar Association report indi­ cated that only four deans in state supported law schools were receiving highersalariesdixring196h-6^, TneLawLibrarianturneddovma

5-9

!»• K;

similar position at a large midwestem state law school earlier this year "becaiise of an inadequate and lesser salary than he is receiving at Texas Tech.

The adrainistration of Texas Tech and its Board of Directors are in agreement that the salary scale in the School of Law m\ast match that offered at the School of Law at the University of Texas, and facility recruitment is proceeding on that "basis. In light of the determination of the Coordinating Board, Texas College and University System, that Texas Tech is to "be one of the four multipuipiose state universities emphasizing excellence in graduate education, continuing support of the administration and Board of Directors on this matter should "be forthcoming.

5*8 Contrihution to the Development of the Area

It would "be difficult, if not impossible, to measure the economic relationships or development stimuli which could be said to flow into this geographical area from prospective programs of legal education. Capable young attorneys are in short supply in most areas of the country. Prospective employers in the immediate vicinity of law schools tend to fill their needs without too much difficulty because of their

frequent contact with law students. Employers and communities at some distance from the sources often are unable to obtain young attorneys, both in quality and quantity. In the rapidly growing Lubbock and West Texas area, over 300 miles from any law school, a need for legal education definitely exists. As this School of Law was developing

from idea to reality, numerous bar associations in West Texas adopted^

5-10

resolutions in support of its establishment. Other groups, too, notahly certified public accountants, adopted resolutions in support of the creation of a School of Lav at Texas Tech. As industrial
and comnercial expansion increases in West Texas, the need for more attorneys and a center of legal learning vill "become more acute.
The "better this School of Law and its physical facilities, the greater the retiim to the coramvinity.

Community and State Support for the Concept of Excellence in Graduate Education

In addition to the support of the Coordinating Board, Texas College and University System, and that of the Legislature in creating this first school of graduate professional education in West Texas, Lub'bock and the surrounding area have shown enthusiastic support. The Dean has "been called upon to speak "before groups throughout West Texas. Attorneys and others throughout the area have contributed books for the law library to supplement those available through state appropriations, and have established a fund to be used for various items so necessary to a great school, but for which state fmds are not available.

Another encouraging indication of community support comes from the graduating class of 1966 at Texas Technological College. Tneir gift, instead of the common bench or fountain, \-r&s $2,6CC with which to purchase books for the law library.

Cn a broader scale, the Governor, the Legislature and other officials have been devoting much attention and financial support to excellence in higher education in recent yeai^s. The populace, too.

5-11

last year approved an increase In the ad valorem tax to supply additionalfmdsforbviildingsinhighereducation.Whilethese encoiiraging actions may sviffice for institutions growing at a relatively normal pace, they have not "been sufficient to enable institutions with the enorraoxis growth of Texas Tech to match the burgeoning enrollments.

Additional Data to Assist in Evaluation of the Proposal

Mention has been made of the newly established International Center for Arid and Semi-Arid Land Studies. While this Center and its research commitments are institutional in scope, the School of Law, especially in the field of water law, will play perhaps the most important role in the overall program. Adequate library and research space miist be provided to assure that this most necessary element of the Center's institutional research ccxnmitments is met.

5-12

EXHIBIT "A"

c

iI } I

lip
>4 J 'J ^

WOMEN JANfTOft

UI!LIA V."r>r,

n

I 150 SEAT CLASSROOlV rr^'TT yi

106
. 2255 SQ.FT,

"I j"

J J -i . 1

i i lo* I

|50^ SO. FT.
Op SEAT CLMSROpM

105
1225 SO.FT.

)SEAT SEMIN

105 1225SO.FT.

• ^

'i "4 ^

1102'^! 1

153
957 SO. FT

DUPLICATE BOOK ROOM

192 140

A

"1

151 r" a 196 SO.FT

MiCROfILM

. 107
lasiso.Ft \ 1

\
^ -I'^'1-

60 SEAT 'classroom

llSdOS Q . F T . h Bp SCATI CUASSmioM

4*—•-T \

PROPOSED LAW SCHOOL BUILDING

CONSULTING ARCHITECT • HOWARD SCHMl SCALE'

22'- 113*-0"

1464 SO.Ft RESERVE BOOKS

737SO.FTI I RECEPTION

•-1

I TEXAS

T ! ASSOCIATES ^ -RP D AREA

FIRST FLOOR PLAN

TECHNOLOGICAL COLLEGE

A. I. A. - LUBBOCK, TEXAS U N A S S I G N E D A R E A S E P T E M B E R 2 8 , 1 9 6 6

EXHIBIT SHEET

I OF 4

FIRST FLOOR ABOVE"^

TEXAS TECHNOLOGICAL COLLEGE

a A S S O C I A T E S A . I. A . - L U B B O C K , T E X A S

"^ASSIGNED AREA

NNSIS! UNASSIGNED AREA

SEPTEMBER

19 6 6

BASEMENT FLOOR PLAN

-I »-

269'-0*

MCCHAKTCAL : EQUIPMENT

MEN'S LOCKERS

04
4,970 SO.FT
MULTI- PURPOSE ROOM

OS

7 ^ Sj

.W04EN MEGH.C^ASC

MTN

300 SQ.FT

LAW FORUM

iQ . i '1
LO(^RS

06
2,576 SQ. FT

TIF 11ILL

NR:IF .

«€CH.CI«KS«-:

tifiuSi

PROPOSED LAW SCHOOL BUILDING CONSULTING ARCHITECT - HOWARD SCHMIDT

4=: ELEVATOR

02
1,451 SQ.FT. TYPTHS

7n

01.._^ _L^4T8_S0FT

DD

ISS'-O*

C

c

m'-o" I IS8'-0" 846*- 0"

PROPOSED LAW SCHOOL BUILDING CONSULTING ARCHITECT - HOWARD SCHMID

846'-0*

s 225

226

ISOFT.72sort 285S0.FT RESEARCH

' :saFTris• >;s—^I: j

r72saFT-

— \z
7n-' '"AjnSaFT

T>*J
229

I72S0^T- lip

>w

227

226

2*•0*

7e'«o'

,FIRST FLOOR ROOF•

77-Q

TEXAS TECHNOLOGICAL COLLEGE 6*"'=" =

a
^ASSIGNED AREA E^S UNASSIGNED AREA SEPTEMBER 28. 1966 OF4

ASSOCIATES A. I. A. - LUBBOCK. TEXAS 3

SECOND FLOOR PLAN

i

(

c

WEST ELEVATION

PROPOSED LAW SCHOOL BUILDING
CONSUL TING ARCHITECT - HOWARD SCHMIDTI

8i

ii
TEXAS TECHNOLOGICAL COLLEGE EXHIBIT B

ASSOCIATES A. I. A. - LUBBOCK, TEXAS SHEET 4 "SEPTEMBER 28, 1966 OF 4

%

The structural framing, floor and roof systems and the basement vill be reinforced concrete and vill be supported on a foundation of exther

drilled. underrea:ned or square type footings. They vill rest on calxche/clay soil approximately 20 feet oelov grade.

Exterior Materials:

The vail material basically vill be a hard-burned face bri^ of the type typical to the existing campus buildings "vrLth limestone tram. The roof •will be the built-up type. Windoi/s vill be aluminum. Entrance doors vxll be glazed aluminum and service doors, hollovr metal. Glazing vill be bronze

or gray glare-reducing sheets at -trindovs and plate at entrances. Flooring in the entry porches vill be red qxiarry tile.

Interior Materials and Finishes:

Interior partitions vill be fireproof, masomy or metal stud and plaster or gypboard.

Flooring vill be generally vinyl asbestos tile vith terrazzo or inareasofhightraffic. Ceramictileisplannedforthetoiletsandtne_ structural concrete floor vill be left exposed in some service, and mechanical areas. A coved vinyl base vill be used generally but ceramic tile vails or

v/ainscots vill terminate in a ceramic tile base. •

VJheretrafficorotheruserequiresthem,vainscotsvillbece^ictile, masonry or vinyl vail covering. Partitions at the basement vill be oi light- veight concrete masonry units and in most cases, ^rill be filled and painted. Metal stud systems vill be used on the first and second floors. In some ^

cases vinyl vaJJ. covering vill be applied over the basic material. Ceramic tile is proposed for use on vails in toilet areas.

Most ceiling's are scheduled to be acoustical panels laid in metal suspension systems. Smooth plaster vill be used overhead in toilets. The structural system may be exposed in some utility areas.

Solid core vood doors (l 3/^" thick) in hollov metal frames are proposed for most locations.

Chalkboards, tackboards and bulletin boards vill be included in the construction contract as veil as built-in hardvood casevork.

Toilet partitions vill be metal of standard man-ufacture. Tovel cabinets and toilet room accessories \riLllbe selected to fit the standard materials and procedures of the College. Self-contained chilled ^•ra,ter drinking fountains on each floor are to be included in the construction contract.

4

EXHIBn c

Structural System;

OUTLINE SPECIFICATIOUS

Lifts:

One hydraulic elevator for library service use only and a dumbvaiter for book transportation vill both extend from the basement to the second floor.

Air Conditioning:

Ihis building system "will be designed for optimtim year-round conditioning with a combination of room and zone controls. Steam and chilled -water vill be furnished to the building from the proposed new central power plant on campus via vindergroiond utili-by tunnels.

Electrical:

Lighting will be provided generally with recessed flourescent fixtures with some incandescent for special exhibition and accent lighting. Primary electric service will be furnished thro-ugh the utility tunnel system to transformer vaultsin-thebasement. Conduit,cabinets,andjmctionboxesfortelephone, intercom system, closed-circuit TV or other audiovisual systems will be included in the construction contract.

Plumbing:

Domestic cold and circulating hot water systems will run in copper; sanitary and storm sewers in cast iron; and gas and fire protection in welded steel; plumbing fixtures in toilets are planned to be vitreous china. Special traps are required at sinks in some labs.

Built-in Equipment:

In addition to the normal office and storage case work, additional book storage units will be required for the faculty offices. Four motor operated moviescreenswithremotecontrolsareproposedforthisfacility. Chalkboards andtackboardsirillbeincludedintheconstructioncontract. Rough-infor two television monitors and other audiovisual equipment will be in the constructioncontract: theequipmentitselfvjlllbemovable. Approximately 600,lockers will be provided for student coats, books, typewriters, etc. Classrooms will be equipped with fixed tables and swivel student chairs and afacultystation# Thebenchandjuryboxinthemootcourtroomwillbe built-in but the spectator seating is included in movable equipment.

TITLE OPINION
Legal Name of Applicant: Texas Technologcical College

Bescription of Proposed Facilities, as shown in Annlication: New construction of a Lav School Building

Description of Project for VTnich Title I Grant is re<iuested, as shown in

Application: Same as above
I, R, Briggs Irvin, Attorney at Law, representing the ahove-named

Applicant, certify:

(1) That I have investigated and ascertained the location of the site, rights-of-way, and easements "being provided by the Applicant for the facilities in its application for Federal aid identified a"bove to "be constructed, operated and maintained thereon.

(2) ThatIhaveexaminedtherecordsofownershipofsaidsite,rights- of-way, and easements, and the legal interest held therein "by the Applicant is as follo^rs:

The fee simple title to the land upon which the proposed facility is to "be constructed is vested in the state of Texas with appropriate legislation devoting said land to educational vise under the direction of the Board of Directors

•of Texas Technological College at Lub"bock, Texas. Such land is free and clear of all liens and encumbrances and may legally be \ised for the Intended purpose.

(3) In my opinion, the Applicant has a sufficient legal interest in the said site, rights-of-way, and easements to permit the construc­ tion of such facilities thereon and to permit the•operation and

. maintenance of such facilities there on by the Applicant for not less than seventy-five years from the date of the application.

Date

Lubbock Texas Address City State

1012 Texas Avenue

EXHIBIT D

LEC5AL OPIHIOIT
Legal Eame of Applicant; Texas Technological College

Descriptionofproposedfacilities,asshowninapplication: Eevconstruction of a Lav School Building ' ^

Description of project for vhich Title I is requested, as shown in application; Same as above

I, R. Briggs Irvin, Attorney at Law, representing the ahove-mentioned applicant, certify;

1, ThatIamtheattorneyfortheabove-mentionedapplicant.

2. Thattheapplicantistheappropriatelegalentitytomake application for a Federal grant under Title I of the Higher Education Facilities Act of 19^3 for this project.

3., Tnat the applicant is to the best of my knowledge and based upon Tny examination eligible to apply for and receive Federal grant funds mder the aforementioned Act.

L. TnattheapplicantHassufficientconstitutional,statutory, or other authorities to finance, construct, and maintain the project on which the application is filed and to apply for and receive funds under the aforementioned Act,

5, That,baseduponallinformationavailabletomeandmyexami-. nation of all pertinent records and materials, there are no apparent legal obstacles whichwould prevent or delay the applicant from proceeding with the completion of the project.

September 27, 1966 Date

1012 Texas Avenue Lubbock irexa,s. A-ddress City State

EXHIBIT E

STATEMENT OF COJ.IPLIANCE WITH EQUAL OPPORTUNITr IN EI4PL0yiyiENT

Tsxas T'schnologxca.l CollGgs 8,ssixr6s "bliG CcmniissionGr uhs-ij xt wxH comply vith all provisions of Section I7O.2 of the Regiilations and that fill applicable provisions for eq.xxal opportxinity in employment, pursuant toExecutiveOrderIO925,asamendedbyExecutiveOrderUllU,willbe inclvidedinallconstructioncontractsfortheconstructioncoveredby the application.

September 28, 19^6 Date

Texas Technological College

Vice President for Business Affairs

EXHIBIT F

BlBLiOGRAPHY

Alspaugh, Doris Yencles. A Bibliography of Materials on Legal EducatioK. Nev,' Y ork: New Y'ork University Law School, 1965„ (NOTE: Through 1969 contains all materials in Legal Education. Specific articles are not detailed herein for reasons of space.)

Pollio, Benedict J. 1967 Supplement to "A Bibliography of i.vlateria1s on ega1 Education. '' Prepared for the Seminar

on Legal Education. New Y'ork University School of Law, July, 1968.

Squiilante, Alphonse M. 1968 Supplement to "A Bibliography of Materials on Legal Education." Prepared for the Seminar on Lega.l Education. New Y'ork Universitv School of Law, July, 1968.

Selected Topical Bibliography . Supplerrient to ''A Bibliography o.{ Material on Legal Education," 1969.

Association of American Law Schools and the Law School Admission Test Council. 70/71 Pre-La-w Hand'book. Indianapolis: The Bobbs-Merrill Company, Inc., 1970.

Barrett, Edward L., Jr. "Some Advice to the Prospective Dean of a New Law School." Texas Technological College.Law E.eview, I (March, 1969), pp. 9-20. ~

Carrington, Paul D., et al. J raining for the Public Professions of the Lav/, 1971. Tlie Fx.eport of the AALS Curriculum Study Project, Proposed Final Draft. February, 1971.

Case Western Reserve University School of Law. Challenge and R.esponse.

Center for Continuing Education. Law and the Changing Society. University of Chicago, 1968.

86

87

College of Law Alumni Association. Newsletter. II (December, 1970) and III (March, 1971). University of Illinois.

Committee on Guidelines for New Law Schools. Guideline Statement on the Establishment of New Law Schools. Washington, D.C.: Association of American Law Schools, 1967.

Committee U. Legal Education . A report to the Board of Higher Education for its use in developing Master Plan Phase III for higher education in Illinois. June, 1969.

Council of the Section of Legal Education and Admissions to the Bar. (Proposed) Standards for Legal Education and for the Approval ol Law Schools. Chicago: American Bar Association, 1968.

Council on Legal Education for Professional Responsibility, Inc. First Biennial Report. New York, December 31, 1970.

Council on Legal Education for Professional Responsibility, Inc. The following are on file: III (October, 1970 through May, 1971) and TV (September, 1971). New York.

Dreher, Robert H. Statement at hearing on Master Plan Phase III to tlie Board of Higher Education regarding the establishment

of a Law School on the Carbondale Campus of Southern Illinois University. Carbondale, March 16, 1971.

Educational Testing Service. Law School Admission Test, 1962-70, Stat_i_stical Summary. Princeton, New Jersey; Educational Testing Service, November, 1970.

"Effect of Pass-Fail Grading on Law School Admissions." From the National Association of State Universities and Land Grant Colleges Newsletter, pp. 7-8.

f.hrlich, Thomas and Manning, Bayless, Programs in Law at the

Ujiiyersity of Hawaii, A Report to tlie President of the University. December, 1970. ~ ~

"Goals for the 70's -- Achievement Edition of the Southern Illinoisan. August 22, 1971. 64 pp. ~

Holderm.an, James. Eetter setting forth Illinois Board of Higher Education guidelines for new graduate and professional program.s. May 20, 1971.

Illinois Board of Higher Education. Format: "Proposal for a New Unit of Instruction." Fall, 1970.

Illinois Board ofHigher Education. Master Plan Phase III. Draft, May, 1971.

Illinois State Bar Association and Jackson County Bar Association Mock Trial Material. Mock Criminal Trial (The People of the State of Illinois v. John Stewart) and Mock Civil Trial (Mar\^ Smith, Administratrix of the Estate of John Smith, Deceased v. Ajax Bus Company). May 1, 1971.

Kitch, Edmund W. , ed. Clinical Education and the .Law School of the Future. Conference Series No. 20. University of Chicago Law School, October 31 - November 1, 1969.

National Clearinghouse for Mental Health Information. Printout of on Law Curricula. April 21, 1971.

Office of Economic Opportunity. Law in Action , II (November, 1967). Washington, D.C.

Office of the Governor. Governor's Advdsory Council News. March-April, 1971.

Pincus, William. The Clinical Component in University Professional Education. Columbus, Ohio: The Ohio State University, November 3, 1970.

Section Section

Section

Section

of Legal Education axidAdmissions to the Bar. Legal Education Newsletter. II (February, 1971). American Bar Association.

of Legal Education and Admissions to the Bar. Review of
Legal Education: Law Schools and Bar Admission Requirements in tlie United States. Chicago: American Bar Association. Also, Fall, 1969, and Fall, 1967 issues.

of Legal Education and AdmJ.ssions to the Bar. Shortage of Opportunity for Legal Education Report. American Bar Association.

of Legal Education and Admissions to the Bar. Standards of
the American Bar Association: Factors Bearing on the Approval of Lav/ Schools by the American Bar Association. Novemher 1, 1969^

88

89

Skoler, Daniel L. "Law School Curriculum Coverage of Juvenile and Family Court Subjects." Reprinted from University of Louisville School of Law Journal of Family Law , V (Spring, 1965).

Southern Illinois University. A Proposal for a New.Unit, Establish­ ment of Research Conipongnt within Center, for Study of Crime, Delinquency and Corrections, Carbondale. Unit No. 48.

Southern Illinois University. A Proposal for a New Unit of Instruction, Bachelor of A.rts in Human Services, Unit No. 47.

Southern Illinois University. A Proposal for a New Unit of Instruction, a Bachelor of Science in the /.drninistration of Justice. Unit
No. 46. .

Southern Illinois University. A Proposal for the Establishment of the College of Human Resource Development. Draft, Juiy~14, 1971.

Southern Illinois Univer.sity. ''Expanded Opportunities for Legal Careers in Illinois. [MacVicar Report] Submitted to Committee U of tlie Illinois Board of Higher Education. Carbondale,

September 6, 1968.

Southern Illinois University. Ten-Year Plan. Carbondale, June, 1970.

Southern Illinois Univei'sity. Froposal for Ivlaster of Science in the Administration of Justice. Octoher, 1969.' "

Southern Regional Education Board. Financing Higher Education. No. 22 in a Series. Atlanta, Georgia.

Supreme Court of the State of Illinois. Rules Governing A.dmission to tne Bar of Illinois. Adopted November 26, 1966; effective January i, 1967.

Xescniier, r-aui A. "Lawyer ivI.orality." The George ^^'ashington Law Review, XXXVIII (July, 1970), pp. 789-848."~ ^

The Law SchoolAdmission Test Council. Newsletter. Ill (December, 1970) and III (March, 1971).

University of Denver College of Law. Report of the Dean. 1969-1970.

University of Illinois College of Law. Report to the President For 1969-1970. Also, for 1970-1971. ~ ~

University of South Carolina School of Law. New Directions in Legal Education. July 15, 1970.

University of South Carolina Law School. . Proposed Curriculum Study of State Law Schools.

UNIVERSITY OF CINCINNATI LAW REVIEW

VOLUME 42 1^73

LIBRARIES, LIBERTIES AND THE FIRST AMENDMENT

Robert M. O'Neil*

I. INTRODUCTION

Down These Mean Streets'^ is a vivid autobiographical account of life in New York's Spanish (East) Harlem. Its author, Piri Thomas, is one of a small group of notable mainland Puerto Rican writers. The book is replete with taboo phrases and expressions;

its dialogue seeks to capture the realities of barrio life through the eyes and ears of a resident. Because of the depressed and brutal conditions of life it portrays, the book does not provide pleasant reading. Yet a leading critic of contemporary ethnic and ghetto literature has called it "a powerful and provocative book—one

that should be read by the masses of Americans."^
In the spring of 1971, a group of parents in New York's School

District 25 (comprising parts of Flushing and College Point) com­ plained about the presence in several school libraries of copies of Down These Mean Streets. They claimed the book was obscene, and called upon the District Board to have it removed from the shelves. A public meeting was held to frame the Board's response.®

During six hours of testimony, all but two of 63 speakers favored

• Executive Vice President for Academic Affairs and Professor of Law, Univer­ sity of Cincinnati. A.B. (1956), A.M. (1957), LL.B. (1961), Harvard University.

1 P. THOMAS, DOWN THESE MEAN STREETS (1967).
2\V.C. MILLER, A GATHERING OF GHE-ITO WRITERS: IRISH, ITALIAN, JEWISH, BLACK,

AND PUERTO RICAN 68 (1972).
3 20 NEWSLETTER ON INTELLECTUAL FREEDOM 81 (1971). .An earlier stage of the pro­

ceedings—the complaint and the district board's initial response—is reported in N.Y. Times, April 6, 1971, at 47, col. 2 (city ed.).

209

I

libraries which originally bought them, and loaned on request to P' parents of children attending the school but not to the students fr themselves.® wct

Soon after the Board's first action, another group of parents, w teachers, students and school librarian brought suit in the United a!

210

CINCINNATI LAW REVIEW

[Vol. 42

retention of the book, either on literary or educational grounds.^ Nonetheless the Board voted 5-3 to remove all copies of the book from junior high school libraries in the district. The district su­ perintendent promptly complied with the Board's order. About six weeks later, the Board held another public meeting at which the order was modified; copies of the book were to be kept in the

19

cl B

P' w

States District Court for the Eastern District of New York to en­ join enforcement of the ban. The district court dismissed the complaint without a hearing. The Court of Appeals for the Second Circuit unanimously affirmed the dismissal, finding no constitu­ tional violation in the Board's action.® The court observed that

"evidently some authorized person or body has to make a determi­ nation as to what the library collection will be." That being so, the choices are bound to displease some members of the commu­ nity. "The ensuing shouts of book burning," the court continued,

P;

"witch hunting and violation of academic freedom, hardly elevate
this intramural strife to first amendment constitutional propor­
tions." Otherwise, "there would be a constant intrusion of the d> judiciary into the internal affairs of the school."^

The Supreme Court denied certiorari in November 1972.® Jus­ tice Douglas dissented in an opinion which Justice Stewart joined. For him, the district Board's position ivas anomalous: "At school the children are allowed to discuss the contents of the book and the social problems it portrays. They can do everything but read

it." The educational implications of the ban were particularly dis­ turbing. What else can the School Board now decide it does not like? How else will its sensibilities be offended? Are tve sending

4 20 NEWSLETTER ON INTELLECTUAL FREEDOM 81 (1971).

5 The precise text of the resolution was as follows; "The Superintendent is hereby directed to remove Down These Mean Streets from all student libraries in the dis­ trict." For a detailed account of this and other stages of the controversy, by one of the participants (an American Civil Liberties Union attorney), see Levine, "School Libraries: Shelving East Harlem," Civil Liberties, Jan. 1973, p. 1.

6 President's Council, District 25 v. Community School Bd No 25 457 F 2d 289 (2d Cir. 1972). ' '

t Id. at 291-92.
a 409 U.S. 998 (1972).

tl

a] fi a h tl t t ti

I c \

R

c I

mmn^

liMiiiiaiiiiaBr

1973] LIBRARIES AND THE FIRST AMENDMENT 211

children to school to be educated by the norms o£ the School Board or are we educating our youth to shed the prejudices of the past, to explore all forms of thought, and to find solutions to our world's problems?"®

Even for Justice Douglas, however, there was no clear judicial precedent by which one could hold the removal of a library book from general circulation violative of constitutional liberties. There were analogies, to be sure, but no previous cases even close to the central issue of this one. Thus, to the court of appeals, the matter was easily disposed of and the dismissal of the complaint summarily affirmed. One statement in the Second Circuit opinion affords particular insight:

The administration of any library, whether it be a university or particularly a public,junior high school, involves a constant process of selection and winnowing based not only on educational needsbutfinancialandarchitecturalrealities.Tosuggestthat the shelving or unshelving of books presents a constitutional is­ sue, particularly where there is no showing of a curtailment of freedom of speech or thought, is a proposition we cannot accept.^®

This analysis of the issue is perplexing for several reasons. First, the plaintiffs—parents, students, teachers and a librarian—did in­ deed claim a "curtailment of freedom of speech or thought," but apparently not in terms familiar to a court attuned to traditional first amendment issues. Second, the court apparently had in mind a quite different sort of case—a librarian's challenged refusal to buy or shelf a particular book—and not the case actually before the court,in which librarians had already purchased and catalogued the book only to be overruled by a lay board. The differences be­ tween the book not yet listed and the book on the shelf but denied to a particular reader seem obvious, but apparently escaped the Second Circuit. Third, there was no evidence that the book was legally obscene, or incited anyone to commit violence, or was even defamatory; the sole apparent basis for the decision to ban the work was an insensitive Board's reaction to a fetv citizen com­

plaints. Finally, there was no assurance that the student plaintiffs could readily obtain the book elsewhere; for aught the court knew the school library may have afforded the sole source of access.

9 Id. at 999-1000.

10 President's Council, District 25 v. Community School Bd. No. 25, 457 F.2d 289, 293 (2d Cir. 1972).

i

These circumstances simply highlight the insensitivity of the Second Circuit's disposition. That disposition is understandable, however, because the case was one of first impression. The simple fact is that no constitutional decisions have defined the relative rights and responsibilities of public libraries and their patrons.

A few cases do deal with libraries, to be sure. One of the earliest decisions concerning desegregation of public facilities involved the Enoch Pratt Free Library in Baltimore, but the constitutional issues were those of state action and equal protection, not free ex­ pression." Some years later the Supreme Court reversed the con­ viction of a group of black demonstrators who staged a sit-in at a small rural Louisiana branch library. Circulation and lending policies were the object of the protest, but the dispute related ex­ clusively to racial discrimination and not to the selection or dis­ semination of books.Recently the federal courts have considered the constitutional claims of two librarians, one who sought em­ ployment at a state university library despite his avowed homo­

sexual involvement and another who challenged his dismissal without a hearing for extracurricular political activities." Neither case remotely implicated selection or circulation policies nor does there appear to be any other case more closely touching these is­ sues. The striking paucity of precedent surely requires some ex­ planation.

Library litigation may be lacking for several reasons. First, there has never been any significant economic incentive to chal­ lenge restrictive circulation or acquisition policies. Unlike the book publishers, distributors and sellers, newspaper and magazine publishers and dealers, movie producers and exhibitors and broad­

casters who have brought most of the relevant first amendment liti­ gation, no one stands to suffer monetarily from one library's ban

11Kerr v.Enoch Pratt Free Library of Baltimore City, 149 F.2d 212 (4th Cir.) cert, denied, 326 U.S. 721 (1945).

12Brown v. Louisiana. 383 U.S. 131 (1966). Nothing in the opinion suggested that the location of the controversy in a public library had any bearing on the outcome. 13 McConnell v. Anderson, 316 F. Supp. 809 (D. Minn. 1970), rev'd, 451 F5d 193 (8th Cir. 1971), cert, denied, 405 U.S. 906 (1972). Hodgin v. Xoland,' 435 F.2d 859 (4th Cir. 1970). For further background on the case, and an indication of the in­

terest of the American Library Association, see 20 NEWSI-ETTER ON INTELLECTUAL FREEDOM 36 (1972). The case involved extra-curricular activities of the plaintiff li­ brarian: He claimed he had been dismissed because he joined in a suit challengin<r the constitutionality of the city school system's part-time religious education pro° gram. The court of appeals did not consider even that claim, however, upholding the dismissal on narrow nonconstitutional grounds.

212 CINCINNAT I LAW REVIEW

[Vol. 42

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1973] LIBRARIES AND THE FIRST AMENDMENT 213

on a particular book or even on the works of a given author. Indeed, it may well be that bookstore sales swell following pub­ licity about a library restriction much as the proscription of a borderline film in one community wdl lengthen the lines in other

communities. Moreover, decisions on book selection and circula­ tion tend to be highly localized. Down These Mean Streets, for example, apparently circulated freely even in other parts of New iork City, not to mention the rest of the country.i^ It is also pos­

sible that library board decisions banning books are much easier to challenge administratively than are movie censors' or prosecu­ tors judgments about films, books and magazines.'®.

At the same time, pressures on the side which seeks to censor may have operated to reduce resort to the courts. (Recall for ex­ ample, the eventual compromise in the case we have been con­ sidering: keeping Z)oa;n These Mean Streets on the library shelves for parental requests. Had that qualification been introduced

earlier, the suit might never have been filed.)'® Another recent experience suggests a reluctance of censors and others to do formal

• •reported incident involving the same book In the spring of 1972 trustees of the Salinas (California) Union High School District voted to suspend indefinitely the use of Down These Mean Streets in the high school cur riculum.ThebookhadbecomethefocusofanexplosivepubliccoiUrtS inthe c^munity. One fundamentalist minister, who led the opposition, chared that

this book was spawned in hell and ghostwritten by the devil." A special committee of the scliool administration urged retention of the book, but the trustees overrode that recommendation. See 20 NEwsutTTER on Intellectial Freedom 104-05 (1979)

Similar controversies have erupted over other books and authois. Ridgefield Con­ necticut, has recently been the scene of vigorous citizen efforts to remove from the

Hdrid°rn' r"r ?he? nr"'

Jonttact theT"T fT"""'
xra107. educationwassharplydividedontheissue.NYTimes Mar.4,973,at60,col.3(cityed.).Meanwhile,asimilarconflicthasemerLn

Strongsville Ohio, a Cleveland suburb, where the board of education banned from

he schools two books by Kurt Vonnegut, Jr. and Joseph Hellers Catch 22. Here too

Am ^ classroom use but to library acquisition as well The Liberties Union has filed suit against the Strongsville decision in

federal district court. Ohio Civil Liberties, Dec 1972 at 3
15 Compare, for example the persistent efFor;s required "to obtain adequate review

Ss«n96nf' FilmCorp.v.CityofChicago,365 U.S. 43 (1961), Freedman v. Maryland, 380 U.S. 51 (1965); Interstate Circuit Inc v

CityofDalas,390U.S.676(1968).Withregardtoprintedmaterialssee'eA Quantity of Books v. Kansas, 378 U.S. 205 (1964); Bantam Books Inc v Snlfr 372U.S.58(1963).Marcusv.SearchWarrant,367US717(1961)' '

'« The amended procedure still kept the book away from students, however See Uvine, School LWranes: Shelving East Harlem, Civil Liberties, Jan. 1973, at 1."

-""-ersialbooks,including J'"- "33.cols.5-8(cityed)

nonrenewaloftheschoolsuperintendent^

i,»Mfliaa^a^iiiii'^jfe^.,

214 CINCINNATI LAW REVIEW [Vol. 42 19

battle with libraries more often than necessary. In the summer of lit 1970, Internal Revenue Service agents went to public libraries in in several cities and requested lists of those who had borrowed certain
books dealing with explosives and incendiary devices.^^ When the sv American Library Association and Senator Sam Ervin brought this o! practice to light, the Treasury Secretary disavowed any official g: authorization for wholesale probing of borrower lists. Apparently

ti o g

b

the inquiries stopped soon thereafter. Had they persisted, a suit
would almost certainly have been filed to establish a principle of
confidentiality for which librarians had long argued.^® Because
the IRS backed down, the issue became moot and the opportunity
for litigation vanished. So it has been with many potential cases. !

The third possible explanation for the paucity of precedent in this area is also the hardest to articulate. Some professions quickly and forcefully resist challenges or threats to their autonomy. Lawyers, for example, will fight back even though the hegemony of lawyers in most legislative bodies has spared the legal profession serious intrusion or oppression. Journalists as a group are quick to respond to threats and have very effective weapons at their com­ mand. Other professions that have, over the years, gained protec­ tive legislation—physicians, accountants, clerg^-men, and even social workers—have not hesitated to invoke judicial remedies when they felt them necessary. More recently college professors and even elementary and secondary teachers have taken to the courts a grooving number of their grievances with administrative

policies or personnel decisions.^®
Librarians do not easily fit any of these professional models.

They are seldom well organized as an occupational group, nor are they even (like airline stewardesses, for example) affiliated with and protected by some other powerful group that shares their in­ terests. Since librarians' salaries are generally low, there has been

ir See N.Y. Times, July 3, 1970, at 8, col. 5 (city ed.). Later it was discovered that some of the documents could be obtained from the Government Printing Office for forty cents. For the strong Advisory Statement to U.S. Libraries from the American Library .\ssociation, urging resistance to such demands, see 19 NEWstiTTER ON IN- TELLECrU.VLFREEDOM65 (1970).

18 See id. at 66-67 for the denouement.

19 There is a wealth of material on this struggle and its present status, and cases far too numerous to cite. For a most useful summary, by one scholar and participant who has been particularly close and involved, see Van Alstyne, The Constitutional Rights of Teachers and Professors, 1970 DUKE L.J. 841 (1970). For a most thoughtful anddetaileddiscussionoftheconstitutionalconceptofacademicfreedom,seeT. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 593-626 (1970).

P

1973] LIBRARIES AND THE FIRST AMENDMENT 215

little opportunity to build up the kind of tvar chests that exists in legal, medical and other professional societies.

There may also be a matter of temperament. A recent survey suggests that librarians, though deeply committed to principles of free expression and inquiry, may be less inclined than other groups to jeopardize their status and employment to assert those principles in the face of hostile community pressure or administra­ tive policy.^" Like other groups of "second class citizens"—pris­ oners, military personnel, students, ghetto residents, minority group members—librarians may simply have suffered repression because they feared reprisal. Where stronger and better organized groups would not tolerate oppressive conditions, professional li­ brarians may endure in relative silence.^^

The era of acquiescence iscoming to a close. About the time that Down These Mean Streets was being decided, a portentous suit was filed in a federal district court in California."^ With the finan­

cial support of the recently created Freedom to Read Foundation, individual California librarians and library employees and their associations challenged the constitutionality of the California "harmful matter statute" which potentially subjects them to crim­ inal liability for disseminating broadly defined classes of reading

20 See Busha, Censorship and the Midwestern Public Librarian, 20 NEWSLETTER ON INTELLECTUAL FREEDOM 103 (1971).

21See the revealing comment of one civil liberties lawyer who represented the plaintiffs in the Down These Mean Streets case: "A federal lawsuit is the natural device for challenging violations of the First Amendment to the U.S. Constitution. But to our surprise we learned that no one had ever before sued a school board for bookbanning." Levine, School Libraries: Shelving East Harlem, Civil Liberties. Jan. 1973, at 1.

A case recently filed suggests the possibility of a completely different route by which these issues may reach the courts. A parent brought suit against the respon­ sible officials of the Princeton (Ohio) school district, claiming that the assignment of a controversial book in a junior high school class had caused his daughter "serious emotional conflict." The suit asked rather substantial monetary damages because of an alleged deterioration of the relationship between the student and her parents following the reading of the book. Among the defendants was the school librarian, who apparently made the book available to the student. Cincinnati Enquirer, Mar. 21, 1973, at 1, cols. 1-2.

Public librarians have recently shown a new propensity for demonstration and protestofanothersort.Todisplaytheconcernoflibrariesoverreductionsinfederal support, including the proposed elimination of a $140 million program, lights were dimmed at libraries across the United States on May 8, 1973. IVhile surely a non­ violent form of protest, this gesture does indicate a new stirring of activism within the library profession. N.Y. Times, May 6, 1973, at 41, col. 1 (city ed.).

22 SEE 21 NEWSLETTER ON INTELLECTUAL FREEDOM 101, 114-15 (1972).

216 CINCINNATI LAW REVIEW [Vol. 42 197

ret

as

pr<| he loJ

fir in be er g'

fr o! cc it tc

it

tl

r

material to minors.-® The suit specifically seeks an injunction
against threatened prosecution of librarians under the statute as
well as a declaration of its invalidity. The plaintiffs argue that arcI

since they are not trained or equipped to act as censors, and "since the inevitable tendency is to err on the side of caution," their re­ sponsible actions needlessly curtail the public's access to protected reading materials. Moreover, the law allegedly compels California librarians to practice self-censorship and thus abridges their own

freedom of expression.
The pendency of the California case assures that some law will

emerge in this area before too long. While that case is concededly
one of first impression, as was the New York school library case,
the courts are not wholly without guidance in this vital area of
first amendment freedoms. The purpose of this Article is to bring
together various legal themes and strains that may shed light on
such cases as these. This analysis proceeds by attempting answers
to three central questions: First, does a prospective reader have
any constitutional right to withdraw and to read a particular book
or, put another way, does he have any legal remedy against a P

library that denies him the book? Second, does the librarian him­ self have any constitutional claims and interests apart from those of the prospective reader or the author? Third, does the library as a public institution have constitutionally valid interests in with­ holding material that is constitutionally protected—material which, in other words, a private lending library could circulate with impunity? We begin by exploring the first issue, the existence of a constitutional right to read.

II. A RIGHT TO READ—FIRST AMENDMENT ANALOGIES, PRECEDENTS, AND LACUNAE

The existence of a constitutional right to read is widely, perhaps almost universally, assumed. The first amendment, as the Supreme Court has remarked from time to time, "embraces the right to distribute literature . . . and necessarily protects the right to re­ ceive it."2^ That juxtaposition between the dissemination and the

23 Cat. Penal Code| 313.1 (W'est Supp. 1973).

24E.g., Martin v. City o£ Struthers, 319 U.S. 141, 143 (1943) cf. Kleindienst v. Mandel, 408 U.S. 753, 762-63 (1972); Stanley v. Georgia, 394 U.S. 557, 564 (1969). For a thorough discussion of these cases and many other pertinent materials bearing on the constitutional right to receive information and ideas, see an exhaustive Comment, Freedom to Hear: A Political Justification of the First Amendment, 46 WASH. L. REV. 311 (1971). For earlier discussions see, e.g.. Green, The Flight to Com-

1973] LIBRARIES AND THE FIRST AMENDMENT

217

receipt of information and ideas might at first appear so obvious as not to require proof. Yet few propositions in constitutional law are self-evident. It is particularly hazardous to take for granted a

proposition for which the decisional support is as casual as it is here. Moreover, the tie between dissemination and receipt is not logically inescapable. Courts might, for example, hold that the first amendment protects the speaker or the writer (and others involved in disseminating information or ideas) but stops there because the framers neglected to safeguard the interests of listen­ ers or readers. Indeed, the very force of the Bill of Rights as a guarantor of free expression might obviate the need to safeguard freedom of reception. Courts concerned about the rising volume

of constitutional litigation might reach the same result by a pro-' cedural route, holding that prospective readers and listeners may indeed have at least derivative substantive claims but lack standing to advance those claims apart from the speaker, writer or publisher.

The existence of a constitutional freedom to read or to receive information thus does not follow inexorably from the "preferred" position of freedom of expression. There is a clear need to separate the two constitutional claims and to determine independently the rationale of the more novel of the pair. Relevant case materials afiound. There are, however, no cases dealing directly with the claimsofpubliclibrarypatronsorborrowers.Toanswerthepre­

cise question before us, we must therefore bring to bear a wide range of pertinent decisions, recognizing that none is dispositive.

A. T h e Right to Receive Publications

We begin with the Supreme Court case most nearly in point, Lamont v. Postmaster General.-^ A federal statute-® required that certain types of printed matter from Communist countries •would be held by the post office, that the addressee would be notified of the retention, and that the material -vvould be delivered only if the addressee specifically so requested. The post office developed a form reply card sent to all such addressees; failure of the addressee

to return a signed card for each piece of "communist political propaganda" would result in the eventual destruction of the ma­ terial. Two addressees brought suit in federal court, asserting a

municate, 35 N.Y.U.L. REV. 903 (1960); Mciklejohn, Freedom to Hear and to Judge, 10 LAWYERS GUILD REV. NO. 2 26 (1950).

25 381 U.S. 301 (196.5).
20 39 U.S.C.A. § 4008(a) (1964).

218

CINCINNATI LAW REVIEW

[Vol. 42

1973;

Se the ; get i real!

thai ferr.

1

bou repl rial: wit! plai cati (or

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T som tuti It i con

car ins adi SUJ

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constitutional right to receive such mail unimpeded by the dis­ closure assured by the return of each reply card.

A unanimous Supreme Court struck down the entire procedure. "The Act as construed and applied," wrote Justice Douglas, "is unconstitutional because it requires an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressees' First Amendment rights.''^^ Little was said in the opin­ ion about the nature of the underlying constitutional interest. A concun-ing opinion of Justices Brennan and Goldberg did, how­ ever, develop somewhat more fully the relevant constitutional

claim:

[T]he protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgement those equally fundamental personal rights necessary to make the express guar­ anteesfullymeaningful....Ithinktherighttoreceivepublica­ tions is sucli a fundamental right. The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.^s

This is strong language, and clearly supportive of a constitu­ tional right to read. Yet there are some obvious cautions about its use. For one, the apposite paragraph, widely invoked in this con­ text, reflects the views of only turn Justices, one of whom has lon^

since left the bench. Justice Douglas, who wrote for the Court" may or may not have been concerned about the right to receive controversial material. His opinion was brief and imprecise about the nature of the "addressee's First Amendment rights." Since he

stressed the fear of reprisals (especially for government employees) should the reply caid get into the "wrong hands, it is quite possible that he saw the crucial interest as the ability to assert with im­ punity a desire to receive "communist political propaganda," rather than a right to receive or to read the material itself. Viewed in this way, Lamont may be a much more traditional first amendment freedom of expression and association case than is often supposed.^s

27Lamont v. Postmaster Genera], "81 U.S. 30], 305 (1965). 28/rf. at 308.

29Professor Emerson assumes the broader reading of Lamont, despite the cryptic quality of the opinion of the Court: "The case is also interesting, it should be noted as protecting the right to receive, as distinct from sending, communications."' T. EMERSON, supra note 19, at 152. For a narrower reading, shortly after the

decision, sec O'Neil, Unconstitutional Conditions: Welfare Benefits With Strines Attached, 54 CALIF. L. REV. 443, 474 (1966).

'!

1973] LIBRARIES AND THE FIRST AMENDMENT 219

Second, the very nature of the publications made it unlikely that the addressee whose copies were withheld by the post office could get them elsewhere. Thus the interest vindicated in Lamont was really a right of access to particular information and ideas rather than simply a desire to obtain that information through a pre-

fen-ed channel.
Third, the publications detained by postal authorities clearly

.bore the name of the individual addressee. The operation of the reply card procedure depended upon that fact. Thus, these mate­ rials were in a sense the "property" of the addressee, even if sent without charge or perhaps even without specific request. The plaintiffs' claims in Lamont thus sought to complete the communi­ cation process in a manner specifically designated both by author (or publisher) and reader until thwarted by postal intervention. It is a quite different matter where a prospective reader seeks to obtain a copy of a book from a bookstore or library, unless, of course, the copy has been inscribed by the author or earmarked by the publisher for that particular reader.

The final qualification to Lamont as analogy is the most trouble­ some. The Court never really held that the addressee has a consti­ tutional right to receive particular material through the mails. It held only that Congress could not require the addressee, as a condition of receiving such material, to disclose on a separate post card his desire to receive each piece of suspect mail. Suppose, instead, a }X)stal employee had been required to telephone the addressee to verify his wishes, the response kept confidential. Or suppose Congress had taken the seemingly more drastic step of forbidding altogether the mailing of such material to private individuals. These, at least, would have been quite different cases. What the Lamont Court recognized was not an absolute right of access, but rather a right not to have access conditioned upon a politically hazardous disclosure. It was the condition, in other

words, and not the restriction, that was unconstitutional.®" Lamont would be precisely in point if, for example, a public

30Such a construction of Lamont would assimilate it to the burgeoning body of law dealing with unconstitutional conditions on government benehts. See generally Linde, lustice Douglas on Freedom in the W elfare State: Constitutional Rights in the Public Sector, 39 WASH. L. REV. 4 (1964); Van Alstyne, The Demise of the Right- Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439 (1968); Comment, Another Look at Unconstitutional Conditions, 117 U. PA. L. REV. 144 (1968); Note, Unconstitutional Conditions, 73 HARV. L. REV. 1595 (1960).

220

CWCINMAT i LAW REVIEW

[Vol. 42

197.

Th am rec in

wh

library required patrons to forego certain liberties as the price of borrowingbooks.Toexactasaconditionofaccessacommitment not to use the information gained from books in a particular way; or to require a borrower to disclose political or religious beliefs at the checkout desk—such practices would clearly run afoul of Lamont.^^ They would be readily struck down without deciding

whether or not all access could have been unconditionally denied whether, in short, there exists a basic constitutional right of access to library materials. The distinction between these cases reflects the special contribution of the doctrine of unconstitutional conditions, to wit; that governmental power to deny or withhold a benefit outright does not necessarily imply or include a power to condition access upon the surrender of other liberties.®- In this

light, then, the precedential value of Larnont diminishes. W^e must look further afield than have courts and commentators who cited Larnont as though it tvere dispositi^e on the issue of the right to read. Some brief historical background is useful.

B. The Relevance of History: The Framers and the Right to Receive Ideas and Information

There is at least respectable support for the view that the framers of the first amendment meant to protect both ends of the communication process. James Madison, who chaired the com- mutee that drafted the first amendment, articulated this relation­ ship between information and responsible citizenship:

T

Knowledge will forever govern ignorance: and a people who fr.

mean to be their own Governors, must arm themselves with the power Avhich knowledge gives. A popular government without popular information or the means of acquiring it, is but a pro­ logue to a farce or tragedy, or, perhaps both.®®

Thomas Jefferson wrote in a like vein of the need to maintain the flow of information to participants in the democratic process:

The basis of our government's being the opinion of the people, the very first object should be to keep that right. The way to

31 C f . Speiser v. Randall, 357 U.S. 513 (1958).

32That is, the supposedly "greater" power to withhold controversial material unconditionally wouid not necessarily imply the,"lesser" authority to make such matenalavailableonlyuponthesurrendero[constiiutionalliberties.SeeR.O'NEIL THE PRICE OF DEPENDENCY; CIVIL LIBERTIES IN THE WELFARE STATE 39-43 (1970)

33LETTERfromJamesMadisontoW.T.Barry,August4,1822,in9WRITINGSOF JAMES MADISON 103 (G. Hunt ed. 1910).

he

^1

1973] LIBRARIES AND THE FIRST AMENDMENT 221

prevent [errors of] the people, is to gite them full information of their affairs through the channels of the public papers, and to contrive that these papers should penetrate the whole mass of the people.®^

Throughout the history of Supreme Court adjudication of first amendment cases, comparable stress has been placed upon the reciprocal character of communication. Justice Brandeis set forth in Whitney v. California^^ a series of observations the value of which has not been diminished by the passage of time:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discus­ sion affords ordinarily adequate protection against the dissemina­

tion of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.^®

In his prodigious treatise on the first amendment, Professor Thomas I. Emerson has identified four central values served by freedom of expression. The third of these is particularly germane here:

[F]reedom of expression is essential to provide for participation in decision making by all members of society. This is particularly significant for political decisions. Once one accepts the premise of the Declaration of Independence—that governments "derive their just powers from the consent of the governed"—it follows that the governed must, in order to exercise their right of consent, have full freedom of expression both in forming individual judg­ ments and in forming the common judgment.®'

Statements such as these do recognize both the historical and

34Qiioted in Note, Access to Official Information: A Neglected Constitutional Right.27IND.L.J.209,211n.ll (1952).

35 274 U.S. 357, 375 (1927).
36/d. at 375-77 (concurring opinion). 37T.EMERSON,supranote19,at7.

222 CINCINNATI LAW REVIEW [Vol. 42 1973]

logical importance of unfettered receipt of information to the virtu

constitutional safeguards for expression and dissemination. If an informed citizenry is vital to a responsible system of self-govern­ ment, then a protection of expression alone would be meaningless without commensurate protection for the reception of what is expressed. Yet such philosophical imperatives do not decide cases. They merely set the stage, and suggest that explicit judicial recog­ nition of a right to read would be consistent with the purposes and premises of the first amendment. Much more than this is needed to establish the right itself. We must now turn to several contexts in which courts have provided potentially useful analogies.

1968 leafl The 390

putc of tl foul beti

par! the the

C. The Company Town and Shopping Center Cases
Over a quarter century ago, the Supreme Court recognized the pat

was town."®®While the constitutional claim on which the case turned reac was that of a Jehovah's Witness seeking to disseminate religious maj literature in violation of company policy, the rationale for the dist

need to keep open channels of communication within a "company

me tected materials—that is, not to be relegated to second class citizen­ the

decision was the right of residents to receive constitutionally pro­

shipasaresultofcorporateownershipofthetown.Writingfor imj

the Court, Mr. Justice Black made clear the primacy of the right to receive the materials in question:

to Ce be efi

"i

m b( se

t; s T

( (

Many people in the United States live in company towns. . . .
Just as all other citizens they must make decisions which affect thewelfareofcommunityandnation.Toactasgoodcitizensthey
must be informed. In order to enable them to be properly in­
formed their information must be uncensored. There is no more
reason for depriving these people of the liberties guaranteed by
the First and Fourteenth Amendments than there is for curtail­ o ing these freedoms with respect to nny other citizen.®®

In balancing conflicting claims, the property interests of the town's owners were weighed not against the Jehovah's Witness' desire to proselytize, but rather against the rights of residents to receive and read an uncensored range of printed materials.

Save for a few lower court decisions,^® the Marsh precedent was

38 Marsh v. Alabama, 326 U.S. 501 (1946).
39 7d. at 508-09.
40£.g., Diamond v. Bland, 3 Cal. 3d 653, 477 P.2d 733, 91 Cal. Rptr. 501 (1970);

In re Lane, 71 Cal. 2d 872, 457 P.2d 561, 79 Cal Rptr. 729 (1969); In re Hof&nan, 67 Cal. 2d 845, 434 P.2d 353, 64 Cal. Rptr. 97 (1967); Schwartz-Torrance Investment

inf(

1973] LIBRARIES AND THE FIRST AMENDMENT 223

virtually dormant for two decades. The issue surfaced again in 1968, when the Supreme Court weighed conflicting claims over leafletting and picketing in a privately owned shopping center The principal case, Amalgamated Food Employees' Union Loca 590V.LoganValleyPlaza,Inc.,*^happenedtoinvolvealabordis­

pute between an employee organization and a non-union tenant of the shopping center. The majority looked back to Marsh and found that decision controlling, despite some obvious differences between company towns and shopping centers. Significantly, the particular first amendment thrust of Marsh was lost in the process, the Logan Valley court stressing the union's interest in publicizing

the dispute rather than the need of the shopping public to be fully informed about labor disputes involving businesses they might p a t r o n i z e . ^ 2 pour years later, Logan Valley's extension of Marsh wassharplyqualified.Whentheissueofnon-laborpicketingfirst reachedtheCourtinLloydCorp.,Ltd.,v.Tannerabare majority drew the line between these two cases. Critical to the distinction was the pertinence in Logan Valley of the particular

message to the establishment being picketed as contrasted with the generality of an anti-war message involved in Lloyd. Also important to the majority was the availability of alternative access to patrons of the Lloyd Center. Since all shoppers entered the Center through several routes from the city streets, it would have been possible to reach the same audience—perhaps even more efficiently—at these entry points rather than from the central "mall." In the Lloyd case, neither majority nor dissenting opinions made more than casual mention of the audience interests that had

been central to Marsh. Relevant first amendment claims were now seen exclusively as those of the speaker or disseminator and not of the recipient who was Justice Black's prime source of concern.

D. TheRightToHearaSpeaker

The very week after its seemingly restrictive Lloyd decision, the Supreme Court did revive Marsh in a most significant if rather subtle way. The issue before the Court was the right of a Belgian Marxist writer and theorist, Ernest Mandel, to enter the United

Corp. V. Bakery & Confectionary Workers Union, 61 Cal. 2d 766, 394 P.2d 921, 40

Cal. Rptr. 233 (1964).
41 391 U.S. 308 (1968). 42/d. at 321-23.
43 407 U.S. 551 (1972).

224

CINCINNATI LAW REVIEW

[Vol. 42

States to take part in conferences and seminars to which he had been invited by American scholars.^^ The Immigration and Na­ tionality Act barred from entry persons who publish or advocate

"the economic, international, and governmental doctrines of world communism."" Mandel was accordingly denied a visa, and brought suit in federal district court against the Attorney General. A three-judge panel ruled that Mandel, as an alien, had no per­

sonal entry right that Congress could not restrict or abolish.^® The court went on, hoivever, to hold that citizens of the United States did have a first amendment right to hear Mandel speak, and on that basis enjoined enforcement of the statute.^^ "The concern of the First Amendment," said the district court, "is not with a non­ resident alien's individual and personal interest in entering and being heard, but with the rights of the citizens of this country to have the alien enter and to hear him explain and seek to defend hisviews:that...isoftheessenceofself-government."^®

The Supreme Court affirmed on the first ground and reversed on the second. While the majority acknowledged that first amend­ ment issues were presented by the scholars' invitations to Mandel, they found those claims overriden by the federal government's plenary power of exclusion. Moreover, the district court's holding might prove too much, for almost any alien threatened with ex­ clusion might find some person or group that wanted to hear him and thus create the same claim.

^ Despite the disposition, the Court did strengthen the constitu­ tional underpinning for a right to receive information. "In a variety of contexts," noted Mr. Justice Blackmun, "this Court has referred to a First Amendment right to 'receive information and

ideas.' That right was particularly significant in the academic community, said the Court, citing loyalty oath and other decisions implicating academic freedom.s® Mpst significant, however, was the Court s rejection of the Government's claim that anyone who really wanted to receive Mandel's views could read his books and articles, talk with him by telephone, or listen to a recording of

44Kleindienst v. Mandel, 408 U.S. 753 (1972). ~ 45 8 U.S.C. §§ 1182(a)(28)(D), (G)(v), (d)(3)(A) (1968).

46 Mandel v. Mitchell, 325 F. Supp. 620, 631 (E.D.NV 1971) 47/d. at 631-32.
48/d. at 631.
49Kleindienst v. Mandel, 408 U.S. 753, 762 (1972).

50£.g., Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Shelton v. Tucker, 364 UX. 479, 487 (1960); Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).

1973] LIBRARIES AND THE FIRST AMENDMENT

speeches given outside the United States. "This argument," replied Justice Blackmun, "overlooks what may be particular qualities inherent in sustained face-to-face debate, discussion and ques­

tioning." The opinion continued;

While alternative means of access to Mandel's ideas might be a relevant factor were we called upon to balance First Amendment rights against governmental regulatory interests—a balance we

• find unnecessary here in light of [the ultimate holding sum­ marized above] . .. [\\^e are loath to hold on this record that exis­ tence of other alternatives extinguishes altogether any constitu­

tional interest on the part of the appellees in this particular form of access.®^

The dissenters—particularly Justice Marshall in an opinion joined by Justice Brennan—pressed the right-to-hear issue even further. They noted that the Court had consistently held the first amendment to protect "the right to receive information and ideas, the freedom to hear as well as the freedom to speak," and found the rationale for this view in Justice Brandeis' observations about the American political process, quoted earlier at some

length.®^"The right to speak and hear," they affirmed, including the°right to inform others and to be informed about public issues—are inextricably part of that process." Justice Marshall continued;

The freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin. But the coin itself is the process of thought and discussion. The activity of speakers be­ coming listeners and listeners becoming speakers in the vital inter­ change of thought is the "means indispensable to the discovery and spread of political truth." . . . The First Amendment means

that Government has no poiver to thwart the process of free dis­ cussion, to "abridge" the freedoms necessary to make that process

work.®®

The contrast between Lloyd and Mandel, decided but one week apart, is engaging. In both cases the new majority ultimately re­ jectedfirst"amendmentclaimswhichtheWarrenCourtwould almost certainly have sustained. But the prospective auditors quest inMandeltohearaparticularspeakerseemedmoretroublesome

51 Kleindienst v. Mandel, 408 U.S. 753, 765 (1972).

52 Id.at Tib.
63 Id. at 775-76.

226 CINCINNATI LAW REVIEW [Vol. 42

than the demonstrators' desire in Lloyd to reach a designated audi­ ence. Moreover, the claim that alternative channels of communica­ tion sufficed was treated quite differently in the two cases—fully accepted in Lloyd (despite Marsh and Logan Valley) while viewed with suspicion if not rejected outright in Mandel.

Theapproachofthedissentersinthetwocasesisalsorevealing. The lineup was essentially the same: Justices Douglas, Brennan and Marshall dissented in both, joined by Justice Stewart in Lloyd but not in Mandel. In the shopping center case, the dissenters made no use of the possible interest of Lloyd Center patrons in being as fully informed about public affairs as their fellow citizens who shopped on the public streets of downtown Portland. (Indeed, the management of the Center prided itself on the broad range of political messages presented to shoppers whose full mercantile needs could be met within a single mall.)®^ This oversight is curious. Not only were the listeners' claims deemed paramount in Marsh, but Mandel was pending at the very same time. It is possible, of course, that the apparent failure of the parties to discuss the recipi­ ents' rights in Lloyd was preclusive—although in other contexts

such neglect has not kept the Court, much less the dissenters, from reaching relevant but omitted issues. Perhaps one must conclude that the teaching of Marsh, not cited by any of the three opinions in Mandel, had been forgotten.

The Court was aware, however, of another line of decisions that bore heavily on Mandel. During the late 1960's the lower federal courts decided a number of cases involving bans on speakers at

state college and university campuses.®" In most of the cases the would-be speaker was either a plaintiff (as Herbert Aptheker and Frank Wilkinson were in the North Carolina litigation)®® or his participation was assured and implied should it prove necessary.®'^

64See Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 580 (1972).

65 E.g., Brooks v. Auburn Univ., 412 F.2d ri71 (5tli Cir. 1969); Smith v. University ofTenn.,300F.Supp.777(E.D.Tenn.1969).Seegenerallythetwoleadingscholarly comments, Poliitt, Statutory Comment: Statute Barring Speakers from State Educa­ tional Institutions, 42 N.C.L. REV. 179 (1963); Van Alstyne, Political Speakers at State Universities: Some Constitutional Considerations, 111 U. P.t. L. REV. 328 (1963).

66Dickson v. Sitterson, 280 F. Supp. 486 (M.D.N.C. 1968).

57Some such cases involved challenges by students and student organizations to university speaker bans. Although no speakers appeared amm-ig the named plain­ tiffs, recent experience on the campus provided clear evidence of the availability and interest of speakers tvho would have appeared but for the restriction. See, e.g., Molpus V. Fortune, 432 F.2d 916 (5th Cir. 1970).

3l. 42

laudi- linica- j-fully lewed

iling. Innan Joyd Inters ps in lizens ieed, [range intile rious. \arsh, fe, of scipi- Itexts

Ifrom plude lions

that leral |rs at the and r his p"y.®^

ersity lolarly Xduca-

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328

pis to

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bility

1973]

LIBRARIES AND THE FIRST AMENDMENT

227

In one suit, however, (the ultimately successful challenge to Illi­ nois' Clabaugh Act) the speaker was embaiTassingly absent.®® The only plaintiffs were students, faculty members and the student asso­ ciation, alleging that the challenged law denied them access to speakers they would like to hear. The three-judge court treated

the issue as one of standing, holding that the absence of a speaker among the plaintiffs was not disabling:

There is respectable authority indicating •that the audience, which is, after all, a principal beneficiary of the First Amend­ ment, also has standing to seek relief against illegal censorship. ...IntheFirstAmendmentarea,wheretraditionalnotionsof standing have often been relaxed in order to vindicate rights of free speech and association, rights which have always been

jealously protected by the courts, we see no reason why the audi­ ence should be precluded from asserting tlieir inteiests, meiely because the speaker is disinclined to wage a legal battle. There is a First Amendment right to peacefully assemble to listen to the speaker of one's choice which may not be impaired by state legis­

lation any more than the right of the speaker may be impaired.ss

The speaker cases provide a useful analogy for the right to read, but one that is limited in three respects. First, the constitutional barrier has often been simply one of standing, with the merits either quite distinct or relatively clear once the case was properly in court.®®Here the case on the merits, the substantive first amend­

ment claim, has been largely that of the speaker, who was either precluded from presenting his own case because of some obstacle such as alien status in Alandel, or who was simply absent, as in the Illinois Clabaugh Act case. The freedom to read, by contrast, must carry the case the whole way, both as to standing and on the merits; the reader's interests are not similarly identical to those of the author and the publisher.

Second, certain fundamental differences between written and oral communication undermine the analogy. The speaker simply cannot communicate without an audience. They are as integral a part of the communication process as the speaker and the con­

es snyder V . Board of Trustees, 286 F. Supp. 927 (N.D. 111. 1%8).

69/d. at 931-32.

60 Such vas the case vith Snyder, the Illinois statute contained vices suflBciently comparable to other laws already struck down that a dismissal for lack of standing would simply have postponed the inevitable.

^^^CINNATI LAW REVIEW [Vol.42

tent of his message.«i The involvement of an audience is vital for eexerciseofaspeaker'sfirstamendmentrights.Therelationship ween reader and writer is more remote, however. The author can express his thoughts effectively without a guarantee that what he has written will gain immediate reception or comprehension. At least so long as his thoughts can be published, and thus pre-

served in a tangible and durable form, postponing the readin- IS words does not thwart the communication process in the

^me waythat denial ofaccess to an audience thwarts the speaker.

uis there may be a more compelling constitutional case for the

claim of an audience to hear a speaker than for a reader to re­ ceive printed material.

A third distinction may also diminish the force of the analog In the speaker cases, including M a n d e l , die interests of speaker and listener were more nearly concurrent than are those of writer

and reader. Consequently a judicial refusal to entertain the list- nefs pleamightwellhavedefeatedthespeakefs rightsaswell. n t e case of ivTitten material, however, the writer, publisher and

distributor have quite distinct sets of constitutional interests independently recognized by the courts."® The recognition of a institutional right to read may therefore seem less compelling. Whilenoneoftheseadmittedlysubtledistinctionsappearinthe

cases the explanation is quite simple: the paucity of litigation on

behalf of prospective readers has postponed occasions to test the analogy.

Courts have implicitly recognized titis difference in several cases involvine re Black in Kovacs v. Cooper, 336 U.S. 77, 102-04 (1949). ' •' "

62See.e.g.,Rockwellv.Moiris,12App.Div.2d272211NYS9,I9^ziocm ,

dismissed. 9 N.Y.2d 791, 175 N.E.2d 162 215 N YS 2d '09 I A. (I960), appeal /loriN • 1 • u L , A.r.S.Zd y02, cert, dented, 368 U.S 913 (1961), in winch the Neiv York Appellate Division refused to dismiss as moot a

speakers request for a forum, even though the date scheduled for the speech had longsincepassed.Fordiscussionofthecase,seeT.EMERSON,supranote19,at343-

63 5ee e.g.. Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), in which the Su­ preme Court struck doivn an informal censorship scheme at the instance of out-of state book publishers The Court noted, but was appa.rentlv not troubled by the absence among the plaintiffs of in-state booksellers or newsdealers. Several faaoi.

such as ability to bear the cost of litigation and local fear of reprisal, may explain this allocation of responsibility. ^ piain

1973] LIBRARIES AND THE FIRST AMENDMENT 229 E. T h e Listener and the Broadcast Media: A Special

Interest in Receipt of Information

The search for analogies naturally leads to radio and television. In a number of recent cases, courts have expressed concern for the interests of viewers and listeners—sometimes parallel to the licensee's interests, but increasingly in opposition to them.®^ The first explicit recognition of viewer interests came in the court of appeal's decision in Office of Communications of United Church of ChristV.FCCN°Thatcasegrewoutofstrongobjectionsfiledby religious groups, labor unions and civil rights organizations to the allegedly biased programming practice of Jackson, Mississippi

television stations. Their lack of balance in treating racial issues was said to violate the FCC's "fairness doctrine"®® for handling controversial and public affairs programming.

The court of appeals held that listeners and viewers were en­ titled to a hearing on such issues before the renewal of the chal­ lenged license.®'^ Even if the Commission itself was inclined to grant the renewal, listener-vierver interests were vital to a deter­ mination whether the licensee had served the public interest and thus must be heard kidependently.

The viewer's role was enhanced several years later when the Supreme Court decided Red Lion Broadcasting Co. v . FCC.^^ A group of broadcasters had challenged the validity of the FCC's "personal attack" rules.®® These regulations, based on the fairness

pgfji^xired a station to furnish the victim of any broad­ cast "personal attack" with a copy of the offending script or of the tape, and to offer air time for a response. Not surprisingly, the

Court sustained the regulations.'^® On the constitutional issue, however, the Court went out of its way to articulate a first amend-

64See generally Note, We Pick 'Em, You Watch 'Em: First Amendment Rights of Television Viewers, 43 So. C.4L. L. REV. 826 (1970).

65 359 F.2d 994 (D.C. Cir. 1966).

66Mayflower Broadcasting Co., 8 F.C.C. 333, 340 (1941); see J. Lewels, Expansion of the Fairness Doctrine, FREEDOM OF INFORMATION CENTER REPORT NO. 251, Nov.

(1970).
6T359 F.2d at 1006-07.

68 395 U.S. 367 (1969).
6947 C.F.R. |§ 73.123, 73.300, 73.598, 73.679 (1972). These regulations derive their

authorisation from Section 315 of the Communications Act of 1934, as amended, 47

U.S.C. § 315(a) (1968). 70 395 U.S. at 400-01.

230

CINCINNATI LAW REVIEW

[Vol. 42

ment interest in the receipt of fair and balanced material. Given the need to license access to the airwaves, observed Mr. Justice White for a unanimous Court, "[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount."

It is the purpose of the First Amendment to preserve an unin­ hibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that mar­ ket,whetheritbebytheGovernment,itselforaprivatelicensee.... It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged

either by Congress or by the FCC.^i

The Court went on to hold the personal attack rules and the underlying fairness doctrine compatible with, in fact designed to enhance, these listener-viewer interests.

Most recently, the primacy of listener interests has arisen in a P^^Itt-tilar substantive context. An organization knoivn as Business Executives Move for Vietnam Peace sought prime air time to broadcast spot messages attacking the Administration's Indochina policies. The major stations refused to grant such time, and were upheld by a majority of the FCC.'^ Commissioner Nicholas John­

son, however, argued forcefully that his colleagues had misapplied the fairness doctiine. His view was eventually vindicated when the court of appeals reversed the Commission, holding that a flat ban on broadcasting of anti-war messages violated the first amendment, especially where editorial advertisements on less controversial

topics were readily accepted.'^®
The court thus stated the central issue: "[Wjhat are the dimen­

sions of the public's First Amendment interests in the operation of radio and television?"'^ Citing the Red Lion case, the court affirmed that "the right to receive ideas and information is deeply rooted in First Amendment law.'"^® That proposition did not, however, exhaust the range of relevant constitutional interests:

The public has a First Amendment interest in the mode or

11Id.at390. ——
12 Business Executives' Move for Vietnam Peace, 25 F.C.C.2d 242 (1970)
13 Business Executives' Move for Vietnam Peace v. FCC, 450 F.2d 642 (D.C Cir

1971).Fordiscussionofthecase,seeR.O'NEII.,FREESPEECH;RESPONSIBLECOMMUNI-' CATION UNDER LAW 63-64 (2d ed. 1972).

11450 F.2d at 654. 15 Id. at 654-55.

42

ten nee jnd It."

lin- lely lar-

fal, pch ted

|he to

a less to

ina pre Im-

led the [an jnt, lial

sn- on irt .ly

lot. or

I NI-

manner—as well as the content—of public debate broadcastmedia....TheFirstAmendmentvaluesof self-fulfillment through expression and individual pai icip
in public debate have long been recognized. We all have a

interest in speaking up ourselves as well as m hearing others I is too late to argue that the First Amendment protects ^deas but not an individual's interest in expressing them and doing so

his own Vi^ay."®

Thusthelistener'sinterestwasnotconfinedf^ anti-war messages on the air from some source. The force

the first amendment demanded a broad range of both ideas an sources: "[Tlhe public's First Amendment interests constrain broadcasters not only to provide the full spectrum of viewpoints, but also to present them in an uninhibited, wide-open fashion and

to provide opportunity for individual self-expression. ' t is no clear how far this obligation extends. The court did not, for example, hold that -a station must offer air time to every antnwar

group that seeks it, or even that they must accept messages from a particular gioup such as Business Executives, but ony tiat licensees could not reject all editorial advertisements on a given subject, regardless of the source. The public interest therefore

extends to diversity of presentation and variety of format, as well

as in substantive and ideological balance, but does not guarantee

access for every spokesman who requests air time.
The Commission's view ultimately prevailed, however, as the Supreme Court reversed once again.'® A three-way division within

the Court deprived the decision of a clear majority raaonale. A plurality of four Justices found in the "public interest" standard no requirement that broadcasters accept any editorial advertise­ ments In their view, a station's refusal to accept such copy did not even constitute "state action" for first amendment purposes. More­

over, enforcement of the duties defined by the court of appeals posed for the plurality insuperable administrative problems. The simplest solution was to recognize and reaffirm a generalized rig t of access, but without the accompanying remedies the lower court had articulated. Meanwhile, Justice Douglas concurred because e

found the whole notion of content regulation abhorrent to free

76 Id, at G55.

TiSlumbia Broadcasting Sys., Inc. v. Democratic Nafl Comm., 41 U.S.L.W. 4688 (May 29, 1973).

1973]

LIBRARIES AND THE FIRST AMENDMENT

231

°n t

232 CINCINNATI LAW REVIEW

[Vol. 42

expression. The third wing of the Court would have afhrmed the court of appeals, feeling a particularized right of access essential to constitutional interests of both listeners and advocates. Thus, with the possible exception of Justice Douglas, the Court sub­ scribed fully to the concepts of listener interests articulated by the court of appeals. The disagxeement was at a more practical level —whether the intent of Congress and the modus operandi of the Commission justified a particularized right of access. Even the plurality clearly reaffirmed Red Lion's dictum: "It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." Thus, the final outcome of Business Executives may have relatively little impact on the constitutional principles that pertain to our inquiry.

The analogical value of the broadcasting cases is limited, how­ ever. The licensee's obligations rest not simply on the public's need to be well informed. A special responsibility arises from the semi- monopoly position which each licensee holds over a medium upon which the public is vitally dependent for information and opinion-formation. If the broadcast spectrum were unlimited, the nature of that obligation would be much less clear. (Attempts to impose comparable duties of balance upon the press, where monopoly power does not exist, at least on a de jure basis, have fared somewhat differently.)^® Moreover, the courts have never held that broadcasters must give air time to a particular group or

organization favored by one viewer or even by many viewers. The marketplace may, of course, tend to assimilate programming choices with audience interests, but always imperfectly and of course voluntarily. Indeed, the courts have made clear that neither they nor the FCC should regulate program content beyond the extent minimally necessary to ensure that licensees serve the public interest and deal fairly with controversial issues.®® The details must be left to the broadcasters themselves, else one set of first

79The Massachusetts Legislature considered a bill requiring a newspaper which published a political advertisement for one candidate to accept advertising from other candidates for the same office on equal terms. The bill would have imposed upon newspapers essentially the "equal time" duty long imposed on broadcasters by Section 315 of the Federal Communications Act, 47 U.S.C. § 315 (1968). The views of the Massachusetts Supreme Judicial Court were requested regarding the constitu­ tionality of the bill. In an advisory opinion, the court avoided the central constitu­ tional issue by finding the key terms of the bill unconstitutionally vague. Opinion of the Justices, — Mass. —, 284 N.E.2d 919 (1972).

80Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969).

1973] LIBRARIES AND THE FIRST AMENDMENT 233 amendment rights would be unduly impaired in pursuance of

another.®^
The broadcasting example maysuggest that public libraries have

a responsibility to maintain balance and variety in their acquisi­ tions. The analogy between the radio or television station and the library has at least superficial appeal. Thus it would be impermissi­ ble for the library to forego purchase of all books critical of the

United States position in Vietnam, or sympathetic to racial segregation, or perhaps even to eschew all works by a particular author. Carr)'ing the analogy a bit further, the library may even have a responsibility to stock enough copies of books reflecting a

particular point of view to give borrowers reasonable access to that side of the question. But the broadcasting cases stop short of telling us whether the library may refuse to buy or to shelve a particular work. Since that question is the focus of this inquiry, the value of

the analogy is limited.

F. The Righl T o Possess and T o Read in Private

No recent case in the obscenity field has left so many questions open as Stanley v. Georgia.^^ The Supreme Court there held that a person could not constitutionally be punished for having and

using in the privacy of his home material that might be legally obscene.^® 'What is uncertain is the precise constitutional basis of the Stanley decision and the extent to which it contributes to first amendment doctrine at all.

Air. Justice Alarshall, writing for the Court, observed that all previous obscenity cases arose in the commercial and public con­ text. Thus the prosecution's reliance upon those precedents was not dispositive. "It is now well established," Marshall continued, "that the Constitution protects the right to receive information and ideas. . . . This right to receive information and ideas, regard­ lessoftheirsocialworth...isfundamentaltoourfreesociety."®^

81Id.at 389-90.
82 394 U.S. 557 (1969). The issue whether mere possession of obscene material for

private use could be criminally punished had been before the Court once earlier, in Mapp V. Ohio, 367 U.S. 643 (1961). In fact, Mapp had been argued and decided in the Ohio courts and argued in the Supreme Court on the assumption that this was the sole issue in the case. The Court, however, converted the case into the vehicle for extension to the states of the exclusion from evidence of unlawfully obtained evidence. The possession-of-obscenity issue was thus never reached. For a comment on the Ohio decision and the deferred issue, see 74 HARV. L. REV. 779 (1961).

88 394 U.S. at 568. 84Id, at 564.

234

CINCINNATI LAW REVIEW [Vol. 42

That right, said the Court, assumes "an added dimension" when the case arises in the confines of one's home, "[f]or also funda­ mental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy."85 The countervailing claim of the state to punish the private posses­

sion of pornography "amounts to [nothing] more than the assertion that the state has the right to control the moral content of a per­ son's thoughts."86 The prosecution's talk about deviant and anti­

social conduct also fell on deaf ears: "Given the present state of knowledge, the state may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial con­ duct than It may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade

spirits. Finally, the state had failed to demonstrate that the

power to control private possession of such materials was necessary

to reflation of sale and distribution; that claim reflected merely

the difficulty of proving in doubtful cases the requisite intent to distribute or actual distribution.

If the majority opinion contained elements of both first and fourth amendments, the concurring Justices reflected no such ambivalence. Justice Black made quite clear, in a paragraph, that he thought the issue open-and-shut on first amendment grounds JusticesStewart,BrennanandWhite,inasomewhatlongercon­

currence, tvould by contrast have relied solely on the° fourth amendment s guarantee of privacy, appaiently without reo-ard to the nature of the materials seized. Thus, while the decision was unanimous, only four of the nine votes could be unmistakably recorded for a particular constitutional theory of the case.

More troubling than the uncertainty about Stanley's rationale were the questions at once raised about its scope. The Court had said that Stanley's right "to receive information and ideas" was infringed. Did the right to possess obscene material with impunity thus imply a right to acquire such materials? If so, what did that do to all the earlier decisions curbing distribution and sale of the

very materials that were now sacrosanct once inside the home?^®

85M.~ ~^^- 86 Id. at 565.
87Id. at 567.

88Professor Emerson,completing his treatiseshortly after theSupreme Court had spoken, remarked: "On its face Stanley seems to undermine much of the theoretical structure bu.lt up .n prior decisions. Yet the Court appeared to consider the case

42.

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ti- of of n-

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to

id ch at Is. n- th to as ly

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id

as-

ty

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al se

1973] LIBRARIES AND T H E EIRST AMENDMENT 235

If Stanley did not undermine or qualify these earlier cases, then how was the private reader sui>poscd to exercise his newly defined constitutional right unless he happened to have special talent for producing pornogTaphy at home or filming stage movies in the basement?

It was clear the Court would scmn have to explain what it had meant by invoking the "right to receive" in Stanley. The first test came in the California Supreme Court several months later. There, the majority drew the line at the portal of the home.®® In a vigor­ ous dissent, however, three Justices insisted that Stanley would createahollowrightifitwerethusrestricted.Tothem,theem­

phasis in Stanley had been on i!ie individual as recipient or con­ sumer, not as creator of obscenity. The case had therefore recog­ nized a new and important first amendment right, the right of an adult "not only to say whatever he wants and to advocate whatever he believes, but to choose what books he will read or what films he will watch in his home."®® Accordingly, the claim

before the California court was liroader than those of the defen­ dant commercial distributor: "They are the interests of every adult in realistically being able to exercise his constitutional right to decide which books he will read in the privacy of his home."®^ Tothesedissenters,

Stanley commands that the individual, not the government, be the one who ultimately decides whether the individual will read a book or not. . . . The govciuinental authority to regulate the public distribution of reading material intended for the private use of adults extends only to measures reasonably related to the

protection of juveniles or to tlie protection of the privacy of in­ dividuals from unsolicited assaults on their sensibilities.®®

The United States Supreme Court has not yet completely settled this issue. It has, however, indicated that Stanley was not meant to overturn all the distributionaiid-sale decisions. In a case that happened to involve the same defendant as the California case (this time appealing a federal conviction for importing porno­ graphic pictures), the Court warned that Stanley could not be

aswhollyexceptional,quiteoutsidethemainstieamofobscenitylaw."T.EMERSON,

supra note 19, at 485.
89 People V. Euros, 4 Cal. 3d 84, 480 i'.cd 633, 92 Cal. Rptr. 833 (1971). 90M. at 96, 480 P.2d at 641, 92 Cal. Rpi,. at 841.
91 Id. at 99, 480 P.2d at 644, 92 Cal. Rptt, at 844.
Mid.

I

SPMSPHPSIPIiPiliP!

236 CINCINNATI LAW REVIEW

[Vol. 42

read "as immunizing from seizure obscene materials possessed at a port of entry for the purpose of importation for private use."®® The focus of Stanley "was on the freedom of thought and mind in the privacy of the home,"®^ a domain which did not include the port of entry of a returning traveler. The force of this later decision may be somewhat diluted, however, by the defendant's notorious commercial activity and his apparent concession that some, at least, of the seized materials were intended for resale and not for private use.®® Moreover, the Court did refer, toward the close of the opinion, to "the right to receive obscenity adumbrated in Stanley,"^^ thus implying that the constitutional claim might have fared better in the hands of a person as remote from the pornographic marketplace asStanley himself. In any event, the use, of the phrase "the right to receive" in the course of distinguishing Stanley may be even more telling than the appearance of the same phrase in the Stanley opinion itself. Yet these cases do not, any more than the other decisions we have examined, establish a con­

stitutional right to receive a particular work from a particular source or channel.

G. The Prisoners Right T o Receive

It would be anomalous indeed if the library patron had fewer constitutional rights to receive printed matter than does a prisoner. While this does not appear to be the case, recent decisions involv­ ing prisoners' rights may be relevant here. Two related issues have been before the courts with increasing frequency in the past several years—the prisoner's right, on the one hand, to receive without censorship all mail addressed to him and the prisoner's access to specified publications, such as controversial magazines, books and newspapers, from external sources. The latter issue is particularly germane to this study. •

93United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971). Luros, the de­ fendant in the California case, was the claimant in this federal case challenging the constitutionality of the forfeiture statute.

94Id. at 376.

93The claimant had in fact stipulated that the materials were being imported for commercial purposes. For this reason, Mr. Justice Harlan argued that he lacked standing to challenge the statute for overbreadth based upon its possible applicabil­ ity to private or personal-use importation. The other members of the Court did not take quite so strict a view of the stipulation, though it undoubtedly played some part in their analysis of the case. Id. at 377.

96United States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971).

1973] LIBRARIES AND THE FIRST AMENDMENT 237

One recent federal district court decision deals explicitly with the question of prisoner access to publications.®^ The correctional facility had a policy allowing receipt of non-legal publications and books from the publisher only, except for those in the prison library or sold in the commissary. The court found it "difficult

to understand why families and friends and retail stores should not be permitted to mail or deliver books, magazines and newspapers to the jail, to be given to the inmates for -whom they are intended, after inspection under carefully drafted and evenly administered rules. . . ."®®To this court, the "right [of] each adult to read . . . what he chooses" was a fundamental constitutional interest which could not be suspended at the prison gate. A different policy was appropriate:

In a prison setting, the elimination of some reading matter may be required for security reasons because it is designed to cause severe disruption (as for instance an illustrated pamphlet instruct­ ing a prisoner how to destroy jail property or how to interrupt or close down certain jail services and programs).®®

But such sweeping restrictions as the "publisher only" rule would not do, even in a high-security facility. Particularly where a large percentage of pre-trial detainees were among the inmate popula­ tion, limitations on receipt of outside publications not in the library or commissary must be clearly justified by prison authori­

ties. That test was never precisely articulated; the opinion implies that literary bans would be permissible only when necessaiy "to maintain institutional security" or when "prison security requires their exclusion."

H. The Right To Read and Access to the Bookstore

No case analyzed to this point provides a firm basis for a consti­ tutional right to read, but one California Supreme Court decision, now a decade old, comes closest. The Los Angeles city attorney had stvorn to drive the works of Henry Miller from the bookstore shelves of an otherwise quite tolerant community. An aggrieved bookseller, joined by a prospective reader, brought suit against the attorney alleging an unconstitutional suppression of Tropic

9ZCollins V. SchoonfieUl, 344 F. Supp. 257 (D. Md. 1972).

98/rf. at 281.

99W. For general background on these issues, see Molz, Buring Yourself Out: The Prisoner's Right to Read, 21 NEWSLETTER ON INTELLECTUAL FREEDOM 143 (1972).

/

i

238 CINCINNATI LAW REVIEW [Vol.12 Can^nThe,sou,«a<»—

not legally obscene and could thus be en ~rrrSTrST.s— ..hatd

^Mofe perSTntwtathe '^""^trntssTtaS «}« of the prospective reader In
city attorney argued that such p

1973]

where st lisher),^*-^ guish St

I

channeh h u t ^jate to do battle with the city Ta'Ltualirhappened inaJ963Ju^^

Mnrtllllifl

coLtitutional issues. The court responded.
11 eVi-it 1-ip desires to purchase a co^y

[The reader] alleges that h "Tropico£Cancer"butisuna e^

thus fearful of prosecutioir, re p,- [he] is able to find a booksel criminal prosecution and tie a e

because the book-seller, publication.Unless {^^e the possibility of be deprived declaratory relief

^
iro£'StTX V S'vr„;S„ d...isconsih.uio„,l

Superhclally, this parajaph oders to read. There are, houever,

point, the complaint
an injunction, although the

^

[to^oin iudgment and not

remedies did not appear dis- fbg decision with regard

^ST.; haTbeenmerelyone ofstanding.Thebookselleru attorney'svendetta

i'SrHT^T^MTrY^hestrTngsu^^^^^^^ tive listener in the Illinois spea'

positive,secondandfar
io the prospective reader as P>="""® ^ he clearly

Athirdfactoristhe on a demurrer. Thus, t

plaintiffs' allegations that

Tropic case came up JfLleptid arguendothe

B

a

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book from every shelf
demuiTer was not the availability of

101 Zeitlin V. Arncbevgh, 59 Cal. .ia sui,

903 S P.2d 152, 154, 31 Cal. Rptr. 800,

803-04 (1963). ^ 927 (N.D. 111. 1968). 102 Snyder v. Board o£ Trustees, .too i-i-

p

se^ution had driven the

An^^eles. The issue on

, „f r

^ j. through a particular

[Vol. 42

le book was h impunity, court little noes "hard

e in the suit mplaint the ing to raise

a copy of e book-seller, atiou. Unless possibility of

be deprived aratory relief onstitutional

for freedom rst, a minor ent and not t appear dis- with regard merely one i ; he clearly -y's vendetta ader's claims IS alone and the prospec-

asecame up

rguendo the 1 driven the he issue on a particular ' the city. If ith the city Court case

• 800 (1963). ' C.il.Rptr.800,

1973]

LIBRARIES AND THE FIRST AMENDMENT

239

it

guish substantive constitutional rights.

I. The Right To Read: A Reprise

1J

noT squarely embedded in_
useful fragments and analogies,but noth|

pldsll^^n i^'intrevel P ^

'n.he.owe.'=ttof."r.etve a.accoh

spoken approvingly of the „ lary of free expression, but h

^ decision solely on amendment interests always been present.

the reader's or ^i^tener s ^
tc ?t«tT doe's no.£uUysuffice,wemustcontinue.o reason

partly from logic. nonetheless worth noting, that we are perhapsrt.s p„Hicinstitution,supported

speaking in the L_,i;,istered by government at the county

by tax revenues ^J

or municipal level. Y
ablyofaccesstoinformation, elfortsto

Baltimore public library. J"

cert. denied. 326
ment did not apply because of the o g

, •, arfued that the fourteenth amend- i^al dependence of the library system on pri-

P^^_^ sunpon made the library a pub-

v Tanner 407 U.S. 551 (1972). "y^unicipal auditoriums and other Southeastern Promotions, Ltd., v.

Southeastern Promotions

;:LrcrB"„,.4.ha„,3^ 106 Compare, e.g.. Amalgamated

r

Inc., 391 U.S. 308 (1968),
107 See, e.g: the recent cas

facilities for performance o

f

9

S S ro "S t rs"p.S (N.O,C.isrtkd.C..i».. Park

District, 460 F.2d 746 (7th Cir. 1972).

expression, or presum-

naiTower in a public place

31 Cal. Rptr. 800 (1963).
' „„ation of public facilities involved the

103 Bantam Books, Inc.
104 Zeitlin v. Arnebeigh, 59 Ca .
105 One of the earliest cases on de ^ g Library, 149 F.2d 212 (4th Cir.),

;

CINCINNATI LAW REVIEW [Vol. 42

freedom of expression is fully protected anywhere, it is protected

in the public forum. The hard questions relate to distinguishing

what IS "public" from what is "private" for constitutional pu^ poses.

It would be anomalous if courts were to hold that the reader has less right to receive controversial material from a public library than from a private bookstore or lending library, or a privately owned television or radio station. Indeed, the first

amendment responsibility of a tax-supported library system to its patrons would seem at least as extensive as the responsibility of a company town or a broadcast licensee toward residents or listeners. Private bookstores and libraries do exist, but are accessible only to those who can afford to pay. For those who cannot pay, the pub­ lic library is the sole channel of access not only to relatively expensive hardcover books but to less costly items like magazines

and even daily netvspapers.i"® Thus the public libraiy is as integral

a part of the public forum as the municipal park or auditorium,

and access to its intellectual resources should be unfettered for comparable reasons;

Two further attributes of the public library enhance this com­ prehensive public role. On one hand, the public library system typically receives substantial governmental appropriations and thus incuts, almost axiomatically, an obligation to seiwe the entire

community from which support is drawn. Moreover, the public library really has a monopoly position in the community. Its only effective "competition" comes from college and university libraries, and these are open only to the small portion of the popu­ lation who are students, faculty or possibly staff members. Private

lending libraiies do exist for the circulation of cuirent fiction and occasionally nonfiction works, but can hardly be thought competi­ tive with the major public libraries. As a practical inatter, there­ fore, countless volumes will be unavailable if they are not carried on the public library shelves. In this respect the responsibility of the libraries may be even greater than that of other components of the public forum. Meaningful (if more costly) alternatives do

108 In other contexts the Supreme Court has insisted that vital opportunities not be dented or restricted on the basis ot wealth or poverty, .so long as the activity ex-

r r'T' 383U.S6(53 372 U.S. 353 (l!t63); Griffin v. Illinois, 351 US 12 to6). Since the constitutional criterion here is one of eciuality, the possibility is

left open of pioviding no public facilities to any citizens, regardless of ability to pay

[Vol. 42

rotected guishing nal pur-

reader

public ry, or a he first m to its

ity of a steners. le only

he pub- iatively gazines ntegral orium, ed for

s corn- system s and entire

public ty- Its ersity popu-

rivate n and npeti- there- rried ity of uents

do

s not y ex- • B63 •i- 12 'y is pay.

1973] LIBRARIES AND THE FIRST AMENDMENT 241

exist to public parks, auditoriums and other facilities for speeches and demonstrations. For the vast majority of prospective readers, such alternatives do not exist. Their literary and intellectual needs will likely be met at the public library or not at all.

III. THE RIGHTS OF LIBRARIANS

Whether or not the courts allow a prospective reader to assert a claim of access, the librarian's own constitutional claims merit examination.Wehavealreadynotedandsoughttoexplainthe paucity of court decisions defining librarians' constitutional rights. It is now time to speculate how the courts may respond to libra­ rians' constitutional claims in cases such as the pending California suit discussed earlier.

Two distinct types of interests are involved. On the one hand, a librarian might argue that he may not constitutionally be com­ pelled to withhold books to tvhich his patrons have a right of access because forcing him to violate the liberties of persons he serves imposes an unconstitutional condition or obligation on his own job. The force of this argument would of course depend upon judicial acceptance of the reader's claim of access to library materials.

Quite apart from the reader's or patron's interests, the librarian may assert constitutional liberties of his own. The essence of his personal claim would be that the essential elements of professional librarianship—reviewing, selecting, cataloguing and circulating books—are themselves '"expression" within the meaning of the first amendment. What writing is to the author, production and dis­ semination to the publisher, and retail distribution to the book­ seller or newsdealer, selection and circulation of books are to the professional librarian. Any control of these activities would there­ fore involve potential abridgement offirst amendment rights. While the claim is novel, and certainly untested in the courts, it has a more than superficial appeal.

While in most instances these interests will presumably be con­ current, the possibility of conflict cannot be ignored. A profes­ sional librarian may, for example, conclude that a book sought by readers ought not to be stocked or circulated. In such a case the two interests would come into apparent conflict—the reader's right to read and the librarian's right to decide what should be read. This situation, too, must be carefully appraised.

ATI LAW REVIEW [Vol.42 A. The Librarian's Freedom and Unconstitutional Conditions

It is now settled beyond doubt that public employment may not be conditioned upon a surrender of the constitutional liberties of citizenship.i''9 No government worker may be required to forego political associations, religious tenets and other forms of protected expression as a condition of public employment. While certain doubts remain with regard to political activities and manifesta­ tions of unorthodox or aberrant life styles, the public worker is

generally free today to live a normal life, at least as unfettered as ^is neighbor who works in the private sector. Myriad cases involv­ ing loyalty oaths, criticism of superiors, membership in taboo or

suspect organizations, cultivation of unorthodox styles of hair,

dress and insignia, have forged an impressive set of safeguards for thepublice m p l o y e e . °

For all the cases that protect the public worker's own personal rights, there is remarkably little law on his relationship with clients or patrons. One might imagine that high school teachers would have resisted searches of student desks or lockers, or refused

to censor underground newspapers, and would have been fired or suspended as a result. If such episodes have occurred, they have not yet made their way to the courts. Apparently the only case dealing at all with the public employee's duty to violate the rights ofothersisPariishv.CivilServiceCommission,anotherCab'

fomia Supreme Court precedent.

Benny Max Parrish, a social tvorker in Alameda County (Oak­ land), was ordered by his chief to take part in a series of pre-dawn visits to clients suspected of having "unauthorized males" in their homes. The program, popularly dubbed "Operation Bedcheck," had been tried previously in other parts of California. When Par­ rish refused to conduct such visits, fearing violation both of pro­

fessional standards and the rights of his clients, he was discharged for ' insubordination." He brought suit for reinstatement, ivhich was denied by the superior court and the appellate court. The

Russe), 384 U.S^11 (1966); Linde, Justice Douglas on Freedom in the Welfare State- Const,tut,onal Rights in the Public Sector, 39 WASH. L. REV. 4 (1964)- Van ALSRVN. The Constitutional Rights of Public Employees: A Coniment on the Inappropriate Uses of an Old Analogy, 16 U.C.L.A.L. REV. 751 U969)

in66Cal.2d260,425P.2d223,57Cal.Rptr.623(1967).

51 ORE. L REV.

[Vol. 42

'auditions

may not perties of lo forego protected certain lanifesta-

rorker is ptered as involv-

laboo or lof hair, lards for

Dersonal pp with teachers

refused ifired or sy have [ily case

rights b' Cali-

(Oak- je-datvn |n their Aeck," 2n Par-

|of pro- Iharged ] which I- The

pandt V.

Je Stale;

[Alstyne,

ropriate

|L. REV.

1973] LIBRARIES AND THE FIRST AMENDMENT 243

California Supreme Court reversed, however, with but one dissent. The opinion was devoted almost entirely to what the court characterized as the "central issue": the constitutionality of the client visits at which Parrish had balked. A tacit assumption was made that if the raids themselves were unlawful, Parrish had a

right to refuse to participate and thus had been improperly dis­ charged. The court's finding that Operation Bedcheck did violate fourth amendment rights of welfare clients almost settled the case. Only one isstie remained: •whether Parrish's supervisors had told

him enough about the search to enable him to make a constitu­ tional judgment and whether, having done so, he sufficiently ex­ plained the grounds for his recalcitrance. The court resolved both issues in Parrish's favor. Since California law defined "insubordi­ nation" as requiring refusal to obey "some order which a superior officer is entitled to give and entitled to have obeyed," the dis­ charge was wrongful. Thus the decision with regard to Parrish himself may well have been a statutory one, however clearly the

judgment was a constitutional one on the rights of the clients. WhetherornotParrishsodeclares,itseemsbeyonddoubtthat a public employee cannot be punished because he refuses to vio­ late someone else's constitutional rights. The caseworker or police­

man who refuses to break down the door, the teacher who resists a warrantless search of lockers and desks, the public housing proj­ ect manager -who refuses to evict tenants on unlawful grounds— each of these persons should enjoy a constitutional protection for recalcitrance at least as strong as the interests of those he seeks to protect."^ The government employee can no more be forced, as a condition of employment, to infringe the constitutional rights of others than he can be forced to sacrifice his own civil liberties.

Let us speculate upon the possible relevance of this principle to the public library. Suppose a librarian insists that minors have a constitutional right to receive certain material, although state law appears to deny it to them. Rather than risk dismissal (as well as criminal prosecution) for violating the law, the librarian might well seek a declaratory judg-ment of his rights as well as those of patrons. This is essentially the focus of the California case, al­ though it is far from clear that the librarian plaintiffs have fully developed this line of argument. Quite apart from the hazards of criminal liability (to which primary attention has been given in

112SEER.O'NEIL, supranote 32,at 81-83.

:

• j

J J 1

I [

I

]

i ^ ) I

•5 i ; J ) '

I

^ < i

1 ; I

) j

: I ^ :

•

244 CINCINNATI LAW REVIEW [Vol.42

the California complaint) the librarian faces a serious dilemma: if he withholds the materials in compliance tvith the statute, he may be abridging a patron's right to read. If, on the other hand, he releases the material, he risks possible loss of employment as well as of liberty, assuming that library boards and administrators are inclined to enforce the statute.

There is, of course, one vulnerable assumption in this line of argument: the existence of a constitutional right of access in the reader or patron to the material. We have already devoted sufficient attention to that issue in the preceding section. Yet even if the courts were reluctant to confer such a right upon the reader, the librarian's claim might survive. Since the librarian is already in court from fear of criminal prosecution or loss of employment, there can be little doubt about his standing. Courts might thus more readily accept the reader's claims tvhen presented by the li- brarian, much as the federal courts allowed Mandel's would-be audience to press claims Mandel himself could not press and much as the California court halted Operation Bedcheck at the case- Avorker's request rather than that of the client. There are times when not only will the standing issue be resolved in favor of the "secondary" party Avho is properly in court, but Avhen the substan- tive claims of that person may fare better than those of the absent "primary" party. Accordingly, the librarian Avhose personal stake in the litigation is immediate and substantial may be the best per- son to speak for the reader.

B. The Librarian's Own Freedom of Expression

There is a possibly more direct if less familiar route by which to reach the same goal. Why should the first amendment not en- compass a broad range of professional activities and judgments

of librarians, indeed, the elements of intellectual freedom that are essential to the unfettered practice of the profession of librarian- ship? The arguments for such an extension may be dratvn from other contexts.

The most obvious analogy is to the well-established body of con- stitutional protection for academic freedom. It is Avell settled that freedom of expression for the college and university teacher en- compasses more than mere freedom to advance controversial doc- trine in the classroom without riskingdismissal or imprisonment.^" That protection lies at the core of academic freedom, but a free

,
J 113Forageneraldiscussion,seeT.EMERSON,supranote19,at593-626.

I

/ol. 42

mma; ke, he hand, lent as prators

line of kn the Ricient jif the Ir, the idy in finent,

thus the li- dd-be Imuch case- Itimes pf the 3Stan-

Ibsent Stake It per-

khich k en- pents |t are Irian-

|from

con- that en- doc- jlt."3 free

1973] LIBRARIES AND THE FIRST AMENDMENT 245

and responsible system of higher education demands far more. Professors must be free, for example, to join and to belong to organizations that legislators may believe "subversive. They must

be unfettered in their extracurricular activities as well as in t e classroom. In general, the state may not tell them what to teach or what not to teach or how to teach it. The assignment of texts, the preparation and distribution of course syllabi and the conduct o class discussions must remain uncensored.^" When governmental

action chills or curtails the teacher's initiative in these matters and forces self-censorship in the classroom, then academic freedom (and therefore first amendment liberties) has been infringed.

The rationale for protecting academic freedom as a "penum- bral" first amendment liberty has been well stated by Professor

Thomas Emerson in his treatise:
Ultimately any system of freedom of expression depends upon

the existence of 'an educated, independent, mature citizenry. Con­ sequently realization of the objectives of the First Amendment requires educational institutions to produce graduates who are trained in handling ideas, judging facts and argument, thinking

independently, and generally participating effectively m the mar­ ketplace of ideas. Hence the First Amendment could be said to require the kind of educational institutions that are capable of producing such results. The First Amendment could also be said

to guarantee, in addition to a right to speak, a right to know. As applied to academic fi-eedom these latent powers in the First Amendment could be construed to extend constitutional protec­ tion to additional areas, such as the right of tenure, the right of faculty autonomy, student participation and the like."®

Clearly the foregoing analysis applies literally and directly to

TTTi^onotablerecentcasesvindicatingtherightsofteacherstodetermine, .plect and assim texts and other materials in their classes, see Keefe v. GeaMkos, 418 F 2d 359 (1st Cir. 19691; Parducci v. Rutland, 316 F. Supp. 3a2 (M.D. Ala. 1970). 115Foranunusuallystrongstatementtothiseffect,seetheopinionofthedis­ trict court ordering destruction of the special grand jury report issued after the Ken State University student deaths.The court concluded that references in the report to faculty activities and threatened sanctions or reprisals, unconstitutionally chilled

TcaScfrLdominKentStateclassrooms.Hammondv.Brown.323F.Supp.326,

350 tN.D. Ohio 1971): .
The Report is dulling classroom discussion and is upsetting the teaching atmo-

snhere ^Vhen thought is controlled, or appears to be controlled, when oeda-omies or pupils shrink from free inquiry at a state university because of a repou of a resident Grand Jurv, then academic freedom of expression is im­

permissibly impaired. This will curb conditions essential to fulfillment of the

university's learning purposes. 116T.EMERSON,supranote19.at613-14.

I

(CINCINNATILAWREVIEW [Vol.42

the college and university library. Professors cannot be free to probe controversial issues or to stimulate student research into new and challenging areas unless the campus library is free to stock and to circulate relevant materials. Indeed, a free campus

lib^iary may be a cornerstone of academic freedom, without which other guarantees would have distinctly lesser value.

While the applicability of academic freedom to the community public library is less obvious, society's interests in safeguarding ree om of expression and inquiry do seem comparable. The lb

brary shares with the university a prime function of transmitting ^ ow e ge and information from one generation to another. Both institutions provide the raw material with which to question, chal­ lenge and probe accepted values and entrenched ideas. Censorship and the abridgement of acquisition and circulation policies jeo­ pardize these interests much as oaths, investigations and surveil­ lance endanger academic freedom. If public libraries are to be

storehouses of intellectual freedom, performing the function that

society expects of them, then like universities they must be freer than other institutions.

There is a closely related argument: the professional practice of Iibrarianship is an activity protected by the first amendment. The concept IS novel, not only in this sector but in other professional areas where the ' product" is not "speech" or "press" in conven­ tional tenns yet clearly merits constitutional protection. The writer

and the journalist already enjoy a special measure of solicitude because the results of their creative work appear in a form to rvhich he first amendment is undeniably addressed. Recently the courts rave begun to recognize that painters and sculptors should en-

^ f tension might also include architects, stage and set designers, fashion and graphic designers, and other crea-

ne'TtHriT^fi materials that do not neatly fit the first amendment taxonomy. The paucity of cases

may simply evidence the infrequency with which such issues have been litigated Almost all of the decisions, it is true, involve the printed or spoken word. But the range of creative human endeavor

towhichthepoliciesofthefirstamendmentaresurelyaddressed covers a far broader field.

n"c?'lSr F-Supp.1109(D.Mass.1969).rev'd,424 (1st Cir. 1970), cert, dented, 400 U.S. 90.S (1970).

/ol. 42

Ifree to rhinto Ifree to pampus which

lunity tarding The li- Initting

J. Both li, chal- Borship les jeo- lurveil-

to be |n that freer

|tice of t. The fsional >nven- livriter :itude jivhich •courts Id en-

re not stage crea-

fo not cases have

e the leavor essed

tci 988

1973] LIBRARIES AND THE FIRST AMENDMENT 247

The professional activity of the librarian may claim comparable protection.Whenthelibrarianspeaksorwriteshisownwords,te first amendment clearly applies. But most of what the librarian does is to select and disseminate the words of others. The prepara­ tion of acquisition lists, cataloguing, shelving and circulating

books all require a measure of judgment and intellectual eva ua- tion analogous to the creative process in other sectors, even though the results of the process may never appear in writmn or printe form. In fact, few creative processes are so clearly intellectual in character. While not every act of the librarian's work (routine cataloguing, for example) partakes this character, the intellectual

strain is strong. This component of the librarian's work and judg­ ment generates a substantial basis for constitutional protection comparable to that afforded other creative professionals. ^

We have assumed to this point that the librarians judgment would generally be concurrent with readers' desires. It is quite possible, however, that a librarian may decide not to order or to circulate materials which patrons wish to read. An apparent con­

flict would then arise between two sets of constitutional interest. Yet to the extent the librarian's judgment resulted in an institu­ tional decision not to acquire or release a particular work, the pa­ tron's grievance would be against the library itself rather than

against the professional staff. Should a court later decide that the work in question had been unconstitutionally withheld it would hardly seem that the librarian's constitutional rights had been abridged Protection for the librarian's intellectual freedom is needed when institutional and individual acquisition and circula­

tion policies differ on content grounds. When those policies are congiuent, the librarian needs no protection beyond whatever deference is appropriate to the merits of the institutional decision.

IV. THE LIBRARY'S INTERESTS: STRIKING A BALANCE

One question remains to be considered: What special interests of the public library warrant restrictions on acquisition and cir­ culation policies? Clearly the public library shares with many other

institutions certain basic regulatory interests that override even strong first amendment claims. The more precise issue, however, is whether the library has special needs that justify more restrictive standards, whether the library may withhold materials from its

248

CINCINNATI LAW REVIEW

[Vol. 42

patrons which they would have a constitutional right to acquire through other channels.

We might Stan by reviewing the regulatory interests that li­ braries share ivith other governmental agencies. Presumably, though no court has ever so held, a library could refuse to circulate

material m order to avoid a clear and present danger of a serious sort During a civil disorder, for instance, a highly inflammatory book might be removed briefly from open reserve shelves if the hazards of dissemination were clear, although it is hard to analo­ gize printed matter to such temporary contraband as the raw ma­ terials for Molotov cocktails. If the library somehow acquired

secret or classified information about military maneuvers or troop deployment in wartime, that too might permissibly be withheld."^ A library would also be justified in declining to circulate ma­ terial which would subject it or its staff to civil liability for defa­ mation or invasion of privacy. While remedies for these torts have been steadily narrowed in recent years, one can imagine an action­ able document which the author, publisher and bookseller micrht risk disseminating, the prospect of damages being offset by ex­

pected profits, but which the librarian would naturally withhold. The absence of a profit motive or potential ivould presumably not absolve the librarian from a civil damage claim in such a case. '

The extent of the library's options in tlie field of obscenity and pornography are much harder to assess. Until recently, one would have thought that the material itself was dispositive, so that a li­ brarian iTOuld enjoy no greater latitude than a bookseller or news-

dealer.i" Since the Supreme Court stressed the motives of the distributor, and linked culpability with "pandering,"120 the posi tion of the librarian is much less clear. Some stateThave specific'

statutory exemptions for the "scientific or educational" dissemina tion of obscene material,i2i a defense presumably available to the

118C/. the discussion of comparable issues of restraint in the Pentagon
in the Pentagon Papers

context. United States v. W^ashington Post, 403 U.S. 71.3, 726 (1971)

ObscenityCensorship:TheCoreConstitutionalIssue-WhatIsObscene^7
Rev 9fiQ nOfin u^ctne., / UTAH L,

Rev. 289 (1961).
i20Ginzburg v. United States, 383 U.S. 463 (1966).
I2l£:.g., Gal. Penal Code § 311.8 (West 1970). See a California case, arising before

[Vol. 42

acquire

Ithat li- imably, lirculate serious limatory

Is if the analo- faw ma-

cquired Ir troop |held.^i® ite ma- br defa- its have Iaction-

might Iby ex- phhold.

1973] LIBRARIES AND THE FIRST AMENDMENT 249

librarian if it is available to anyone. At least one court has implied such a defense without explicit legislative authority, recognizing a vital distinction between profit-making and educational or scien­ tific objectives.^2^ Thus arguably the library need not suppress allegedly obscene matter even when the bookseller must do so. This is not to say that a library must make such material available,

but oirly that a decision to withhold it may be judged by a different

standard than that to which the prudent bookseller or newsdealer

adheres.
Are there, however, unique needs which rvarrant a more restric­

tive circulation policy in the public library? Clearly libraries do have some special regulatory interests that potentially impinge on free expression. The most obvious example is the need to main­ tain quiet in the stacks and reading rooms for the benefit of read­ ers; a noise level tolerable in a public airport or sports arena would paralyze a library. Thus the library must have power to punish or evict unruly or boisterous patrons. But this concession has iro bear­

ing on circulation policies.
One might argue that the library has a special interest in raising

the literary standards of the community by encouraging citizens to read higher quality literature and to eschew the vulgar. The im­ portance of such an interest in society, and the propriety of the library's asserting it, can hardly be doubted. The problem relates to the means employed to achieve this end. For the library staff to advertise receipt of "quality" works, to organize book study and discussion clubs and to sponsor forums involving distinguished au­

thors are commendable steps and infringe no one's liberties. It is quite another matter for the governing board or the city council to forbid the library from buying, cataloguing or circulating the rvorks of "inferior" authors. That is pure and simple censor-ship of a kind rvhich government could not impose upon private book­ sellers or lending libraries. There is no compelling reason why government should have power to keep off the public library shelves materials that could not, for qualitative reasons, be denied to patrons of the private lending library. Iirdeed, if anything, the

range of selection at the public library should be broader, since the library is a governmental institution and is for many patrons the only source of publications.

but decided after the amendment adding that defense, People v. Marler, 199 Cal. App. 2d Supp. 889, 18 Cal. Rptr. 923 (1962).

122 United States v. 31 Photographs, 156 F. Supp. 350 (D.D.C. 1957).

ply not Ise.
[ty and

Iwould it a li- news- |of the posi-

Ipecific pmina- |to the

Papers

lupreme planner "John S. 413 I Clure,

IL.

'-"ctore

• rw^-^iiirnfiiimiiiMfla

W1-

250

CINCINNATI LAW REVIEW

[Vol. 42

Nor is there any greater force to the claim that libraries should protect the youth of the community from corruption and immoral- ity. Again, the library may well be the most appropriate place to

expose young people to good literature. Responsible librarians do this in countless ways, but the fostering of good taste does not warrant the thwarting of baser instincts. There is, as suggested earlier, a strong case for a broader freedom in the circulation by public libraries of material dealing with sex and related taboo sub­ jects, a latitude reflecting the library's wholly non-commercial,

non-exploitivegoals.Inanyevent,thelibrarysurelycannotbe held to a narrower standard in this regard than the bookseller or newsdealer who reaps profits from youthful readers' susceptibility to curiosity.

Other possible interests are less readily dismissed. A library might claim that the circulation of certain materials would imply approval of the contents, either by the library itself or by the gov­ ernmental unit that supports the library. The argument has at least a superficial appeal, but a dispositive answer comes from the

speaker ban context. Restrictions on subversive" campus speakers were once justified on quite similar grounds, the alleged concern being that a college tvhich offers an auditorium to a controversial speaker somehow endorses or accepts his philosophy. In fact, how­ ever, the college can avoid this appearance only by being truly open to speakers of all persuasions, unless it allows no speakers at

all on campus. As former University of Oregon President Arthur S. Flemming put the issue:

The first time a university bars a speaker it will put itself in the position of either endorsing future speakers, or at least saying they are not as bad as the one who is barred. The only way in which a university can avoid putting its stamp of approval on an

outside speaker is to follow the policy of permitting a faculty

member or accredited student group to invite anyone they desire to hear.12^

The answer seems a fortiori in the library context. For one thing, the inference of sponsorship would much less likely arise with regard to a single volume than it might with a speech or lec-

123 This argument may be a negative implication of the emphasis in Gfnzburn v United States, 383 U.S. 463 (1966), on pandering, exploitation and commercial gain' There is no assurance, however, that the absence of these elements will absolve the

disseminator of borderline material.
121 Quoted in, 48 .-^AUP BULLETIN 177 (1962).

[Vol. 42

fies should ^immoral- le place to

rarians do does not •suggested llation by laboo sub-

amercial, tannot be seller or jeptibility

library lid imply Jthe gov- Jt has at

rom the •speakers 1concern

foversial let, how- |ig truly lakers at 1 Arthur

itself in It saying Iway in

|l on an faculty desire

3r one arise lor lec-

Jburg V. |algain. I'lve the

1973]

LIBRARIES AND THE FIRST AMENDMENT

251

ture. Moreover, while libraries are necessarily selective in their acquisitions, few would suppose that inclusion of a particular work implied much more than probable reader interest. Thus, censor­ ship of library collections surely cannot be justified by the desire to avoid apparent sponsorship of unpopular views. If anything, the conclusion is precisely opposite: only the avoidance of censorship will dispel the impression of approval or disapproval of views ex­ pressed in particular works.

Finally, restriction of library collections could be defended on essentially political grounds. Since the library budget comes typ­ ically from municipal or county appropriations, and since legisla­ tive reprisals are not unknown against agencies felt to be promoting subversion or pornography, a desire to retain or to curry favor is at least a plausible claim. This is a constitutionally illegitimate consideration. The curtailment of first amendment or other civil liberties has never been permitted on fiscal or expediency grounds. Unpopularity or feared loss of legislative support cannot justify denial or abridgment of individual rights. Thus, when communi­ ties sought to forbid leafletting because of the expense of cleaning up the resulting debris, the Supreme Court insisted that the pro­ per remedy was to expand the sanitation crew.^^® When the Little Rock School Board resisted desegregation on the ground it could not control the resulting disorder, the Supreme Court was unim­ pressed.^-® Later, when permits were denied for protest marches because of the expense of maintaining order along the route, lower federal courts insisted that adequate police protection be provided whatever its cost.^^^From these cases emerges a dominant principle that settles the present question: constitutional rights, whether of equality or free expression, cannot be abridged or denied simply because the exercise of those rights may be costly or inconvenient to the community. The possible reduction of support for the public library cannot justify the withholding or suppression of contro­ versial works. Rather, the remedy is to do a better job of explain­ ing to the appropriating body the true character and mission of a public library and the need to maintain the broadest range of materials.

125 Schneider v. State, 308 U.S. 147 (1939).

120 Cooper v. Aaron, 358 U.S. 1 (1958).

127Hurwitt V. City of Oakland, 247 F. Supp. 995 (N.D. Calif. 1965); Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965).

iir'aailiiwiii

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%•'

252 CINCINNATI LAW REVIEW

V. CONCLUSION: A CONSTITUTIONAL HYPOTHESIS

None of these extenuations appears to support a library censor­ ship policy. The public library must be at least as free to acquire and circulate controversial materials as any other information re­ source in the community. An appropriate constitutional principle would be the following: Government may restrict acquisition and circulation policies of a public library only to the extent it may constitutionally regulate the practices of a private lending library. If anything, the public library should be freer of governmental control and censorship than the private library or bookstore. Un­ der no condition should it be less free. If the citizenry is to be fully

informed and if the primary functions of government are to be exercised by a responsible and knowledgeable electorate, then the libraries should be as unfettered as the press, the broadcast media, and the universities.

There is one final (if obvious) caveat. Nothing said here should imply that a public library is constitutionally required to buy every book that appears in print. With the possible exception of the Library of Congiess, no facility in the country has the cataloguing staff or the space, much less the budget, to carry more than a frac­ tion of published works. Every library must be selective, and the

smaller libraries must be highly so. Book selection requires the careful exercise of professional judgment. Perhaps no two libra­ rians would buy precisely the same books at a given time. Surely courts should not sit to review the choices of individual librarians. Two points do, however, seem essential and are clearly implied by the foregoing discussion. First, the actual selection of books should be left to the professional staff in accordance with whatever criteria have been formulated by the governing board. Second, those cri­ teria and their application must differentiate among books or au­ thors only on grounds that would be constitutionally valid if

imposed upon a private bookstore or lending library. Thus, prob­ able reader demand and critical acclaim would be highly relevant and wholly legitimate; the controversiality of content or possible embarrassment to a public official or prominent citizen would be wholly illegitimate. Between these two extremes lie a host of

subtler distinctions. In the end, the decisions must be left to the professionals who staff our public libraries and who are trained to make these decisions on a daily basis. All that should be checked from without is the use of constitutionally illegitimate criteria and

selective censorship of particular works.

.

Officeof thePresident

^

UNIVERSITY OF NEVADA, LAS VEGAS LAS VEGAS, NEVADA, 89154

MEMORANDUM
To: Mr. Harold Erick Herman W estfall From: R. J . Zorn, Pres

It now appears that vJielvJill be receiving contri­ butions related to the develMirJg^at of a UNLV Law Library, and these funds should be segregated in a special account. Expenditures should not be authorized until developmental planning is in hand.

Please indicate the number of the new account to those campus offices that need cognizance, and

apparently we will start deposits with the $50 check from the Beckley Law firm.

RJZ:dg

April 20, 1973

Feydeau, Georges Leon Jules Marie, 1862-1921.
La Puce a I'oreille, piece en trois actes [par, Georges

Fej'deau. Paris, le Livre de poche,1968.

384 p. 17 cm. (Le Llvre de xwche, ^06) 3.80 Cover Illustrated In color.

F 68-8078

I. Title.

PQ2611.E86P9 1968

Library of Congress 70 [13i

71-456051

Baker, Peter Gorton.

Minnie Swan, by Peter Baker. London, Hodder and Stouylitoii, 1969.

15S p. 21 em. 25/-

8 69-24806

I. Title.

PZ4.B16962Mi

[lTiG052.A364] ISBN 0-340-02395-3

Library of Congress

823'.9'14:

72 [4,

72-185642

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UNIVERSITY OF NEVADA, LAS VEGAS Las Vegas, Nevada

INTER-OFFICEMEMO

Alice Brown, Documents
RE: Law books in the documents collection

TO-
• Mr. Erickson

DATR-

11/17/72

FROM;

We have 808 law books in the federal documents, cataloged only as documents. This includes the codes. Supreme Court Reports, Statutes and the decisions of agencies and departments Interior Dept, Tax Court, Copyright etc. It does not include the yearly CFR's which I would not

part with.
In the Nevada documents we have 146 volumes includenig the Nevada Reports and the Nevada Statutes.

Total volumes on law in documents Is 954.