First, the Amendment

[This column appeared in the Post Independent (serving Glenwood Springs and Garfield County, Colorado) on August 23, 2024.]

Back in 2007 I wrote a book about understanding and responding to attempts to remove or restrict access to library resources. Mostly, that meant challenges to books. But I fielded challenges to almost everything a library offers: exhibits, programs, artwork, databases.

On the one hand, those challenges represented a tiny percentage of library use. In the 24 years I was director of the Douglas County Libraries we had 250 challenges. That sounds like a lot. But in my last year alone we checked out over 8 million titles. We offered thousands of programs. Every public institution has its critics, but they were clearly a minority of our community. (The same thing is true in Garfield County. So far in 2024, we've received two challenges to graphic novels. In the same time period, we've checked out over 50,000 children's books.)

I got interested in the deep philosophic underpinnings of the public library. It won't surprise anyone to learn that it hearkens back to the First Amendment. I immersed myself in the writings of the Founding Fathers. What were they trying to do?

The short version is that many of the US's early settlers were fleeing religious discrimination. They had been forced to pay taxes to support churches or sects they didn't belong to. They were denied the ability to run for public office if they practiced the "wrong" faith. So the Deists at the core of the Constitutional Convention tried to lay out a radically different approach: government and religion should stay out of each other's business. Elected officials had no right to tell people what they had to believe, and no denomination had the right to control the government. As stated in Article VI, Clause 3, "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States," even though some contemporaries worried that Muslims, Quakers or even atheists might get elected.

Moreover, many immigrants had come from places where the government had absolute control over the media common at that time--newspapers, broadsides, and book publishing. In this new nation the press was to be free of such restraints.

Likewise, some people had lived in places where they could be rounded up and jailed simply for gathering with like-minded folks to complain about the government. They wanted that to end, too. Hence the right of the people to assemble and petition the government for a "redress of grievances."

So naturally the nascent nation warmly embraced the First Amendment and it has been smooth sailing ever since. Right?

Wrong. By 1798 Congress enacted the Alien and Sedition Act, effectively outlawing political dissent against government policy. The Act ended when Thomas Jefferson became our third president.

The First Amendment was tested again before the Civil War. States' rights advocates said the First Amendment applied to the federal government, not them. It wasn't until 1925 that the US Supreme Court explicitly extended all Constitutional and Amendment rights to the states. During the war, Lincoln said he was just trying to limit antiwar speech that discouraged enlistment into the army or encouraged desertion. But there were excesses, as has often been the case during wartime.

Now, of course, there are new challenges: Facebook, Twitter (now X), Instagram, and Tiktok are not official governmental platforms; they're privately owned. So do First Amendment protections apply to them or not? Is it ok for them to ban certain topics or speakers? We know that all of these platforms do have real time effects on, for instance, voting. And often they push information that turns out to be deliberately false.

In 1965, Thomas I. Emerson laid out a theory of the First Amendment. The "maintenance of a system of free expression is necessary," he wrote, for four reasons.

• As assuring individual self-fulfillment.
• As a means of attaining the truth.
• As a method of securing participation by the members of society in social, including political, decision-making, and
• As maintaining the balance between stability and change in the society.

That last point stays with me. Americans are all about change. We have the right to examine the evidence of our culture and make up our own minds. We should resist the attempt to tell people who don't agree with us that they have to shut up.

Of course, the First Amendment, like all other constitutional rights, is not absolute. You can't burn your draft card. You can't use people's mailboxes to deliver your own messages. You can't shout "fire!" in a crowded theater. You can't spread big, malicious lies that injure people's reputations--although the more public the subject of your lies is, the more you can get away with.

That still leaves a lot of room for the rich and tangled interplay of opinion. And that's where the public library comes in, the living embodiment of that most American of values: the First Amendment.