Legal Analysis of the ALA's Support of the Freedom to Read Protection Act

Abstract

Bernstein and Woodward took a cab to the Library of Congress and found the office that handles White House requests for material in the library. Speaking to the reporters in a hallway, rather than his office, a librarian informed them politely that White House transactions were confidential. Eventually, the reporters found a more cooperative clerk and spent the afternoon in the reading room sorting through thousands of slips of paper-every request since July 1971, when Hunt was hired by the White House. (Johnson, 1989)IntroductionTangible records generated as a result of reading activity and information seeking are proliferating generally because records of our activities in the world are proliferating. We roam the world and bump into things and records are generated, whether in the form of electronic footprints in cyberspace or ghost images from surveillance cameras. Sometimes we are aware of this record creation and sometimes we are not. We generate records in spaces such as shopping malls, and in spaces, such as our doctor's offce. In our own home we generate records that may be subject to third party scrutiny when we use the telephone or log onto the Internet. When we enter a library, we also generate records of our activities-tangible things-that many people, including the American Library Association, believe deserve the strongest possible protection.The idea that library records, particularly records of reading and information seeking, deserve protection is relatively recent. The act of reading itself looks and feels so intrinsically private that the fact that, historically speaking, private reading was rare or non-existent is sometimes diffcult for a modern person to grasp. Private reading was only possible with the development of widespread literacy and the availability of information sources (books) to large numbers of people. Previous to that, only religious orders and elites engaged in solitary reading and was either not expected or obtained through means that seem impossibly strange to us now. Today, only certain classes of people, such as children, still participate regularly in public reading (such as story times). Acts of private reading remain rare in the present day in some cultures, even in those (maybe particularly in those) that are centered on canonical documents. An example would be reading activities in a non-western culture like Afghanistan where the illiteracy rate is about 80% (for men, around 90-95% for women). In this type of culture, written material is publicly declaimed rather than privately read.iHowever recent a phenomenon private reading might be, it also seems fundamental to something in our society and in our culture-at least in Western culture. For example, medieval monks at devotional prayer were actually required to read aloud rather than silently in order to create a neurophysiologic screen of privacy in the form of noise that provided a kind of de facto for other monks in the vicinity (Saenger, 1997). Today, in our own culture, the idea of a right to in reading and in library confidentiality is strong. But, although a right to access to information has been articulated (although not held) by the courts,2 the absolute right to for records that are generated as a result of reading or accessing information remains unclear. In defense of such a right, claims can be based on a number of traditional justifications for a right to individual and rights to in records.Although there is no explicit constitutional language that guarantees a right to privacy, rights to have been articulated in law to protect areas that we feel are intuitively private, such as reproductive privacy. Records has often been located in Fourth Amendment protections against unreasonable searches and seizures. Reading generally, and particularly the right to access to information, and the chilling e∂ects that violations of have on that right, have often been centered on First Amendment protections that guarantee a right to speech and expression. …