“You Can’t Read That”: The Ethics and Constitutionality of Withholding Books

by Lora Johns

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The phrase “banned books” is a loaded one. It conjures images of Soviet officers confiscating Western literature at heavily-guarded borders. It reminds us of ceremonial Nazi book-burning in the name of national “purity.” Censorship, we feel, is something that inferior, less enlightened societies have done. Not us.

Yet while we Americans congratulate ourselves on allowing everyone (except perhaps schoolchildren) to read and distribute nearly anything, millions of Americans are living in a state of invisible, insidious, unregulated censorship.

As of 2015, at least 480 out of every 100,000 Americans (and possibly as many as 666 per 100,000) do not have free access to books, subject largely to the whims of individual authority figures. These Americans are disproportionately Black, poor, and in desperate need of access to information.

They are the incarcerated. And we, as librarians, should find their plight deeply disturbing.

A truly chilling example of what happens when correctional officers impose censorship on incarcerated people went public on January 8, when New Jersey responded to an A.C.L.U. complaint that two facilities in that state had banned inmates from reading The New Jim Crow: Mass Incarceration in the Age of Colorblindness, by Michelle Alexander, a book that argues persuasively that mass incarceration has ravaged Black America. As the A.C.L.U.’s letter to the New Jersey Commissioner of Corrections stated:

The New Jim Crow is an important work on the endemic racial bias of prison systems in the United States. New Jersey has the single worst Black-white racial disparity in incarceration in the country. For the state burdened with this systemic injustice to prohibit prisoners from reading a book about race and mass incarceration is grossly ironic, misguided, and harmful. It is also unconstitutional. . . .

It is one thing to prevent incarcerated people from reading how-to manuals about lock picking; it is something altogether different to deny people access to a book that “offers a timely and original framework for understanding mass incarceration”. . . .

In its worst light, [the ban] looks like an attempt to keep impacted people uninformed about the history of the very injustice that defines their daily lives.  

New Jersey reversed the ban within hours of the A.C.L.U.’s letter going public, but this is no trivial problem. In the U.S., some 2.2 million people live in state or federal imprisonment. At the end of 2015, nearly 1 of every 37 adults was under some form of correctional control. That is nearly 3% of the total adult population of the U.S. and includes the largest number of prisoners held by any country in the world. Even worse is the racial disparity, which is large and growing.

Per New Jersey officials, book banning until now has been on a facility-specific basis. That the Constitutional rights of so many people have been at the mercy of unchecked and decentralized discretion is a shocking reality we cannot ignore.

The news articles do not clarify who was ultimately responsible for deciding which books to ban, but it is doubtful the prison librarian had the final say. Nonetheless, this case serves as an important reminder to all librarians who work in such proximity to the law and to the edges of Constitutional rights. The ALA’s code of ethics states, first and foremost, that

We provide the highest level of service to all library users through . . . equitable access. . . .
We uphold the principles of intellectual freedom and resist all efforts to censor library resources.

The two New Jersey facilities ran afoul of these cardinal rules. Forbidding a prisoner to read a book because it might enlighten them to the systemic injustice surrounding them feels like a scene from a dystopian novel, not something that really happens. The book in this case had even been part of a curriculum for inmates enrolled in college-level courses; its intellectual and social value was never in question.

Whether the librarians in this situation knew of or had any power to change the ban is unclear. The kind of people who become prison librarians tend to care very deeply about providing access to their patrons, so I personally doubt they were in favor of the ban. Indeed, as one prison librarian wrote, the ALA’s first rule of ethics means that “[a]ccess to resources should not be determined through bias or discrimination, [f]or example, not letting an inmate patron have access to a legal treatise on civil suits because he is threatening to sue the institution, and you don’t want him to have that kind of information.”

While most of us do not work in prisons, the lesson here applies to us too. We must be careful, when developing our collections, creating book displays, and recommending resources to patrons, of the ideological motivations that may lurk within us. To avoid buying a book because we disagree with or find its ideas “dangerous” and don’t want our patrons to adopt them may not rise to the level of a Constitutional violation, but things like this happen, and they do our patrons a disservice. Information wants to be free, even the information that makes us uncomfortable — and our patrons have a right to experience that discomfort, should they seek it out. It is our ethical duty to guide them through it, not hide it from them. In the case of prison librarians, it is our legal duty as well.


About lorajohns

Linguist, lawyer, librarian. B.A. in linguistics from Dartmouth College. J.D. from Yale Law School.
This entry was posted in Access to Justice, Issues in Law Librarianship, Legal Ethics and tagged . Bookmark the permalink.

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