Challenging Anonymity: Protecting the Public’s Right to Know the Identity of Library Book Challengers – Sarah Bartlett

by Sarah Bartlettin Forumon Posted on

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In Brookhart v. Reaman, the Colorado Court of Appeals held that under Colorado law, the identities of people seeking to have books removed or restricted in public libraries can remain secret in the face of public records requests. They based their decision on a Colorado state statute that was meant to protect a library patron’s right to read anonymously, mistakenly construing it to include a person’s right to prevent others from reading. The decision undermines the public’s right to know, through open records acts, who is petitioning their government. Furthermore, it places undue power in the hands of anonymous complainants, allowing them to manipulate the content of public libraries and impose their preferences on the general reading community. The Colorado legislature rightfully responded to the court’s decision by passing a law affirming the public’s right to know who is seeking book removal, and other states should follow suit. Removing or restricting library books because of their viewpoint is a cultural and political issue of great importance in the United States. Community members around the country should have the right to know who is engaged in efforts to ban books.

Contents hide
I. Introduction
II. Public Libraries and Censorship in the United States
a. The History of American Public Libraries
b. Challenging, Banning, and Censoring Books
III. Book Challengers and the Right to Anonymity in Colorado
a. Brookhart v. Reaman: Case Background
b. What the Colorado Courts Ignored: The History and Purpose of C.R.S. §24-90-119
IV. The Tenuous Legal Right to Anonymity
V. The First Amendment Case for Disclosure of Book Challengers
a. Book Challenges as an Act of Petitioning — the Public’s Right to Transparent Government Outweighs the Petitioner’s Right to Anonymity
b. Book Challenges as an Act of Speech — the First Amendment Does Not Prohibit Disclosure Laws and Findings
VI. Conclusion

I. Introduction

In the first eight months of 2023, the American Library Association’s (“ALA”) Office for Intellectual Freedom tracked 695 separate book “challenges,” meaning attempts to remove or restrict materials in United States libraries.[1] This represents a 20% increase in challenges from the same time in 2022.[2] The ALA noted that “the vast majority of challenges were to books written by or about a person of color or a member of the LGBTQIA+ community.”[3] Over the past several years, book challenges have become popular political tools.[4] Self-proclaimed “parents’ rights” groups, such as Moms for Liberty, a group that has been active in seeking changes to local education policies, are behind much of the surge.[5] Lawmakers are also taking up the issue. In 2021, one Texas lawmaker proposed a list of 850 book titles he wanted removed from all school libraries in his state, many of which dealt with racism, sexuality, and U.S. history.[6] The long list included such books as Black Lives Matter: From Hashtags to the Streets by Artika R. Tyner, Jane Against the World: Roe v. Wade and the Fight for Reproductive Rights by Karen Blumenthal, and Rainbow Revolutionaries: 50 LGBTQ+ People Who Made History by Sarah Prager.[7]

Notably, 49% of book challenges in 2023 were in public libraries, a dramatic change from past decades, when most challengers focused on K-12 school libraries.[8] Now book challengers are seeking to remove content not just from school children, but from a wider audience — entire communities, cities, and counties.

Book challenges and the First Amendment debates they spark are nothing new.[9] The First Amendment to the United States Constitution states that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right . . . to petition the government for a redress of grievances.”[10] Courts have historically interpreted the “freedom of speech” provision to protect not only the right to convey information, but also the right to receive it, and Americans who advocate against book challenges have long argued that such challenges threaten that constitutional right, an argument accepted by courts.[11]

This latest wave of politically-motivated book challenges has illuminated some novel issues, however, including whether a person challenging a public library book has the right to remain anonymous.[12] In 2023, the Colorado Court of Appeals found that the Colorado public does not have the right to know the identity of a person challenging the inclusion of a book in a public library.[13] They based their decision on a Colorado state library patron privacy statute, which is meant to protect the reading records of library “users,” and which the court mistakenly extended to include book challengers. In short, they ensured anonymity not only for those who are accessing library information, as the legislature likely intended, but also for those who are trying to dictate what viewpoints may be represented in public libraries.[14] The Colorado Supreme Court denied the petition for writ of certiorari on July 22, 2024, allowing the decision to stand.[15] Subsequently, the Colorado State Legislature passed legislation reversing the appellate court decision, but other states may soon confront this issue and reach an alternative outcome.[16] As such, this article argues for a broader, constitutional understanding of the public’s right to know who is petitioning the government to remove books from public libraries.

Part I of this note will provide a history of both public libraries and corresponding book challenges in the United States. Part II will discuss Brookhart v. Reaman, the anonymity case that made its way to the Colorado Court of Appeals, as well as a discussion of why the court erred in basing the decision on a narrow statutory interpretation, inappropriately ignoring legislative intent.[17] Part III offers a limited overview of the constitutional right to anonymity, and Part IV discusses the First Amendment case for upholding book challenger disclosure requirements. The conclusion reiterates the best way forward for states facing the question of book challenger anonymity.

As libraries continue to face escalating attacks on their collections, the need to hold book challengers accountable becomes increasingly critical. Granting book challengers the ability to hide behind anonymity will undermine communities’ abilities to collectively control what is on their library shelves and will empower censors to ramp up their efforts to silence marginalized voices.

II. Public Libraries and Censorship in the United States

Public libraries are among the most trusted and accessible community institutions in the United States. Their popularity reflects broader social values about education, egalitarianism, democracy, and access to information. Part A of this section provides a brief history of how American public libraries developed, the ideological and practical motivations behind their growth, and the reasons for their enduring popularity. Part B then turns to the related history of book challenges, examining who raises them, who they target, and how libraries respond.

a. The History of American Public Libraries

Public libraries have played an important role in America for over a century.[18] Public libraries are taxpayer funded institutions that offer access to a collection of resources, both physical and digital, for the purpose of “educating, informing, or entertaining a variety of audiences” and “stimulating individual learning and advancing society as a whole.”[19]

The earliest American libraries, outside of universities and colleges, were not “public” in the sense that they are today, but were usually collections sponsored by churches and social clubs.[20] These entities mostly excluded popular novels in favor of books that supported academic and spiritual development.[21] Fee-based circulating libraries were also available in some parts of the U.S., and typically included popular literature by commercial necessity.[22] Because books were prohibitively expensive at the time, commercial libraries gave families an affordable option for accessing popular literature.[23]

In the mid-19th century, public libraries began to spread rapidly across the United States.[24] These public libraries were, by-and-large, taxpayer funded institutions available to all community members free of charge.[25] The public library flourished, thanks in no small part to the sponsorship of wealthy businessman Andrew Carnegie.[26] Carnegie conceived of libraries as democratic institutions where anyone could access learning materials, once stating “there is not such a cradle of democracy upon the earth as the Free Public Library, this republic of letters, where neither rank, office, nor wealth receives the slightest consideration.”[27] His donations helped build libraries across the country, typically on the condition that local governments would agree to self-fund them going forward.[28] Those institutions remain embedded in American communities today.

Importantly, public libraries are only one type of library.[29] School libraries – those placed inside K-12 schools – serve students and staff.[30] Academic libraries serve those learning and working in higher education institutions.[31] There are also a variety of “special” libraries, such as libraries for people who are vision impaired, and government libraries, including law libraries that serve court systems and legislative bodies.[32] Public libraries, however, are the most accessible and visible to the widest range of people.[33] This note will focus exclusively on the question of anonymity for book challengers in public libraries.

In 2020, there were over 17,000 public libraries in the United States.[34] A 2015 Pew Research poll found that “46% of all Americans ages 16 and over say they visited a library or a bookmobile in-person in the prior year.”[35] (Bookmobiles are traveling extensions of public libraries.)[36] In that same Pew Research study, 78% of respondents expressed a belief that “libraries are effective at promoting literacy and a love of reading,” and 65% of respondents agreed “that closing their local public library would have a major impact on their community.”[37]

Though public libraries today engage in a number of activities — such as providing internet access, job search help, language classes, story time, and book clubs — book lending remains their core endeavor.[38] Americans check out an average of eight books, e-books, and audiobooks per year.[39] E-book and digital audiobook checkouts are now mainstays in public library lending, but print book circulation remains strong.[40] Despite the fact that readership in America has declined significantly over the past several decades,[41] libraries continue to enjoy popular support from their communities.[42]

Since the beginning of their development, librarians and the public have debated what types of books should and should not be included in public libraries.[43] The rationale behind the first public libraries was that reading moral and instructive books would be of great benefit to young people.[44] Many believed that mission left no place for novels, or at least not certain novels.[45] Others in the library community, however, believed that once young people got hooked on reading popular fiction, they would eventually develop an appetite for more “enriching” works, so it made sense to offer those popular books, too.[46] This theory largely failed, and most librarians and communities quickly learned that “however much those in charge . . . might wish to foster reading as a means of self-improvement, reading purely for pleasure was what a large proportion of the population wanted.”[47] Popular fiction is now a mainstay in public libraries, and most members of the American reading public expect to find a variety of popular works at their local libraries.[48] However, the prevalence of book challenges today shows that there is still widespread disagreement about which books should and shouldn’t be available.

Public librarians are typically responsible for deciding which books to include in the library.[49] This practice is known within librarianship as “collection development.”[50] Most public library collections are purchased with taxpayer funds, though some libraries also accept donations.[51] Because budgets and shelf space are limited, librarians may elect to purchase some titles at the expense of others.[52] They may also choose to remove works from circulation that are not often used or are in poor condition, a process known as “weeding.”[53] A significant amount of collection development now encompasses purchasing eBooks and digital audio books.[54]

Public libraries are most often governed by county and city governments and, while not common, some local governments exercise authority over collections decisions.[55] For example, one county in Florida was forced to abandon a plan to offer community access to the New York Times because County Commissioners refused to approve the expenditure, believing the New York Times to be “fake news.”[56] Most often, however, librarians decide what is and is not included. In this respect, the collections decisions of public librarians, as government actors, constitutes a form of government speech. The government has the First Amendment right to speak, and “when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”[57] Put another way, government speech, like that of librarian collections decisions, does not have to be viewpoint-neutral.[58]

Despite the government’s Constitutional right to make collection decisions as a form of speech, the role of librarian, community, and local government involvement in collection development is a point of contention for those people who want to ensure that certain books or types of books are not available in public libraries. Some community members believe they should have the right to override librarian decisions and remove books that they find objectionable, a process known as “challenging.”

b. Challenging, Banning, and Censoring Books

The American Library Association (ALA) defines a book challenge as “an attempt to remove or restrict materials, based upon the objections of a person or group.”[59] A book ban “is the removal of those materials.”[60] Often, but not always, challengers will request that books be removed from a children’s or teen’s section of the library rather than removed entirely.[61]

The ACLU defines censorship as “the suppression of words, images, or ideas that are ‘offensive,’” and explains that censorship “happens whenever some people succeed in imposing their personal political or moral values on others.”[62] PBS compiled a list of modern definitions of censorship, noting “contemporary usage offers no agreed-upon definition of the term or when to use it.”[63] Further, the U.S. Supreme Court has never adopted an operational definition of censorship.[64] Because there is no working legal definition, this article defines censorship as a government action and assumes that seeking to remove or restrict a public library book because it does not align with one person or group’s chosen values or beliefs meets generally accepted definitions of government censorship. This article also operates in accordance with Supreme Court precedent in understanding that content-based censorship by governments, including the local governments responsible for operating public libraries, merits strict scrutiny.[65] This means that government censorship will not be constitutionally permissible under the First Amendment absent a compelling government interest and a finding that satisfying that compelling interest is not possible without engaging in censorship.[66]

Despite cultural and legal backlash against censorship,[67] members of the public have been challenging the inclusion of certain library materials for as long as libraries have been around.[68] School libraries have historically seen the greatest share of book challenges, but public libraries are also common targets.[69] In the 20th century, frequently challenged books ranged from “classic” American literature titles like The Adventures of Huckleberry Finn and The Grapes of Wrath to works of contemporary young adult authors like Judy Blume and Katherine Paterson.[70] Typically, challengers targeted books because of their real or perceived sexual content, racial content, graphic violence, challenges to authority, offensive language, or a disrespect of certain political or religious values.[71]

Most contemporary challenged books are written by authors of color and members of the LGBTQ+ community.[72] Challengers regularly state a belief that books featuring LGBTQ+ characters and issues are “immoral” or otherwise “inappropriate” for young audiences, often implicating conservative Christian ideology and politics.[73] Some challengers believe that books discussing racism perpetuate “harmful” ideas about critical race theory.[74]

Moms for Liberty, a group of conservative parents, has attracted a great deal of media attention for their organized efforts to challenge library books.[75] As of November 2023, the website of one New York chapter focused on titles like This Book is Gay by Juno Dawson, Red, White & Royal Blue by Casey McQuiston, and Flamer by Mike Curato, highlighting as “problematic” any passages referencing masturbation, same-sex sexual conduct, and abortion.[76] Some groups and individuals have vocally targeted titles that discuss racism.[77] Historically accurate books about Ruby Bridges and Martin Luther King, Jr., for example, have faced challenges, with challengers citing their belief that books detailing true circumstances from the Civil Rights Movement are “attacks” on white people.[78]

Those advocating for intellectual freedom have long decried attempts to remove books from public libraries as undesirable censorship.[79] The Free Speech Center at Middle Tennessee State University states that “book banning is the most widespread form of censorship in the United States.”[80] People who oppose book challenges believe that such censorship “endanger[s] tolerance, free expression, and democracy” by preventing people from engaging in intellectual curiosity and finding perspectives they might not be exposed to in their own communities.[81] In Board of Education, Island Trees Union Free School District No. 26 v. Pico, a Supreme Court case concerning the removal of books from a public school library, the plurality opinion states, “Our Constitution does not permit the official suppression of ideas.”[82] The Court went on to specifically condemn viewpoint-based removal of books, writing that if the book challengers in that case “intended by their removal decision to deny respondents access to ideas with which [they] disagreed, and if this intent was the decisive factor . . . then petitioners have exercised their discretion in violation of the Constitution.”[83] The Pico case shows that members of the Court consider library book challenges a threat to the First Amendment.[84]

Public libraries sometimes, but not always, have formal processes in place for individuals or community members to challenge books, often referred to as “reconsideration.”[85] In Colorado, for example, the Denver Public Library allows individuals to submit a “Request for Reconsideration of Library Material” form.[86] The individual making the request is entitled to a response from the library, but not to automatically have the item removed or restricted.[87] The Pike’s Peak Library District, which serves Colorado Springs, lays out a detailed reconsideration procedure involving a three-librarian task force to review each formal reconsideration request.[88] At most libraries, librarians make the final decision about whether to remove a challenged book.[89] Libraries across the country have similar policies.[90]

III. Book Challengers and the Right to Anonymity in Colorado

When a person submits a reconsideration request to a public library, that library may require or suggest that the person include their name on the reconsideration form. However, the challenger may prefer to remain anonymous in the event their form is the subject of an open records act request. Part A of this section describes the case that brought the question of book challenger anonymity to the Colorado Court of Appeals. After providing background on the facts, as well as the basis of the courts’ opinions, Part B will explain the context that the Colorado Court of Appeals ignored when they rendered their decision.

a. Brookhart v. Reaman: Case Background

The American Library Association identified Colorado as one of eleven states that recorded more than one hundred challenged titles between January and August of 2023.[91] Noting that trend, Mark Reaman, editor of the local Crested Butte News, submitted a request to the Gunnison County Library under the Colorado Open Records Act (“CORA”), seeking all reconsideration forms filed with the library since the beginning of 2022.[92] The library’s custodian of records, Andrew Brookhart, sought clarification as to whether Colorado Revised Statute (CRS) §24-90-119, a state law governing library patron privacy, permitted him to release the forms without redacting the book challengers’ identifying information.[93] That statute states that “a publicly supported library shall not disclose any record or other information that identifies a person as having requested or obtained specific materials or service or as otherwise having used the library.”[94] It further provides that “any library official, employee, or volunteer who discloses information in violation of this section shall be punished by a fine of not more than three hundred dollars.”[95] A separate law, C.R.S. §24-72-204(3)(VII), “directs libraries to deny the right of inspection of” any “library records disclosing the identity for a user.”[96]

Reaman and the Crested Butte News argued that the records “are a matter of public policy, interest or concern” and that preserving a challenger’s anonymity “prevents transparency and accountability.”[97] Gunnison County’s reconsideration form did not require individuals to include their names and contact information but did make a space available to do so.[98]

The District Court judge, relying on state precedent,[99] weighed “the interest in disclosure and the interest in confidentiality” using a three-part analysis, asking 1) whether there is a legitimate expectation of privacy, 2) whether the disclosure is required to serve a compelling state interest, and 3) whether the disclosure is done in “the least intrusive manner.”[100] The court cited Tattered Cover Bookstore, Inc. v. City of Thornton, in which the Colorado Supreme Court held that a person’s reading history is not subject to state inspection because the First Amendment right to free speech protects such anonymous pursuit of information.[101] There, law enforcement officers were seeking a search warrant to access a customer’s purchase records from a bookstore, after finding two books about making drugs during a search of a suspect’s home.[102] In such a situation, the court held, the bookseller must be granted a hearing where the court will determine via a balancing test if the “need for the search warrant outweighs the harm to constitutional interests caused by its execution.”[103]

In this case, the District Court ruled that the request for reconsideration forms should be released under CORA, but that “name and any other identifying information shall be redacted, as being the least drastic alternative, and preserving the anonymity discussed in Tattered Cover.”[104] The Court interpreted the phrase “having used the library” in C.R.S. §24-90-119(1) to include not only “someone who reads material in the library, or, checks out material, but [also] any person ‘using’ library services.”[105] The conclusion, then, is that a book challenger is merely “using” library services and is therefore entitled to anonymity under the First Amendment and Tattered Cover.[106]

A division of the Colorado Court of Appeals upheld the District Court’s finding that it is illegal under Colorado law to disclose the identity of a public library book challenger.[107] The division agreed with the District Court’s interpretations of “user” in C.R.S. §24-90-119(1), concluding that releasing the identifying information would be contrary to the state statute enacted to protect library users. They also considered the meaning of the word “service” and held that a book challenger is accessing a library “service” that, like any other, entitles them to anonymity under Colorado law.[108] The court wrote that “although the parties challenge the societal benefit of removing books from a public library’s collections, the dictionary definition of ‘service’ is value neutral.”[109] Therefore, “our application of the governing statutes must be value neutral, as well.”[110] The Court of Appeals, determining that the plain language of the statute controlled, explicitly declined to consider the statute’s legislative history.[111]

An amicus brief from the Colorado Freedom of Information Caucus, a group that advocates for open access to government information, argued that the District Court’s decision ignored “the well-established precedent requiring that all such statutory exemptions be construed narrowly to maximize the amount of information available to the public.”[112] However, the Court rejected this perspective. The Court also rejected the plaintiff’s claim that under C.R.S. §24-90-119(2)(a) the records with identifying information should be released because they are “necessary for the reasonable operation of the library.”[113]

Reaman filed a petition for writ of certiorari to the Colorado Supreme Court on November 13, 2023. Like this article, the petition argues that the Court of Appeals ignored the clear legislative intent in enacting C.R.S. §24-90-119: “to safeguard the privacy of library patrons accessing books and other materials at libraries — not to shield the identities of persons seeking to have books removed from library shelves.”[114]

On July 22, 2024, the Colorado Supreme Court denied the cert petition, allowing the lower court’s decision to stand. Chief Justice Boatwright wrote a brief accompanying passage indicating that he would have granted cert to determine whether, among other issues, the Court of Appeals had “construed these statutes in a manner that engrafts an overly broad, impracticable, and absurd construction that the Colorado General Assembly could not have intended.”[115]

The Colorado legislature clarified their position when they passed the Standards for Decisions Regarding Library Resources.[116] This law, signed by the governor on May 31, 2024, addresses the issue of library book challenges more generally and clarifies a number of requirements for public libraries that receive reconsideration requests.[117] One provision states “A written request for reconsideration of a library resource is not a library user record as described in section 24-90-119 (1). A written request for reconsideration of a library resource is an open record under the ‘Colorado Open Records Act.’”[118] This language is a direct refutation of the court’s holding and ensures that the people of Colorado will be able to access the identity of a person challenging a library book if that person identifies themselves on the reconsideration request form.

b. What the Colorado Courts Ignored: The History and Purpose of C.R.S. §24-90-119

In their broad interpretations of “user” and “service,” the Colorado Court of Appeals purposefully ignored the circumstances under which the Colorado State Legislature passed C.R.S. § 24-90-119. The legislative environment leading to the law supports the inference that the legislature intended the law to protect people’s right to read anonymously but took no position on the right of people to remain anonymous when they are attempting to prevent reading. The enactment of the Standards for Decisions Regarding Library Resources by the Colorado Senate in 2024 reiterates that position.

Tattered Cover was decided in April 2002.[119] Less than one year later, in March 2003, C.R.S. § 24-90-119 was enacted.[120] That timing alone suggests a desire by the legislature to codify the court’s finding that reading and accessing information anonymously should be a protected First Amendment right. National events also likely swayed the legislature’s decision to protect the records of library readers. The Patriot Act, passed in 2001 following the 9/11 terrorist attacks, authorized the FBI to seize bookstore or library records, whether they could demonstrate probable cause for doing so or not.[121] [122] By 2003, backlash against the Patriot Act and its invasions of personal liberty had swelled.[123] In response,, Senator Bernie Sanders proposed the Freedom to Read Protection Act, which would have amended the Patriot Act to require that law enforcement officials go through a public process to obtain the right to access records revealing what a person has read.[124] That bill was introduced in March 2003, the same month that Colorado passed their own patron privacy law, and while it was never passed in Congress, its introduction illustrates the growing concern at the time over readers’ privacy.[125]

Forty-eight states have library patron privacy laws similar to Colorado’s, and the two states that don’t have such laws – Hawaii and Kentucky – have standing Attorney General opinions indicating support for patron privacy.[126] Colorado appears to be the first state to take up the particular question at issue, and because each privacy statute is unique, Colorado’s case will not necessarily be persuasive in other jurisdictions.[127]

In the District of Columbia, for example, a similar law specifically protects circulation records that “can be used to identify a library patron who has requested, used, or borrowed identified library materials from the public library and the specific material that patron has requested, used, or borrowed from the public library.”[128] This statutory language more specifically and explicitly limits the right of anonymity to people’s reading habits than Colorado’s statute does.[129] In Connecticut, on the other hand, the language is written to protect all “records maintained by libraries that can be used to identify any library user or link any user to a library transaction.”[130] Still another state, Georgia, has a law with an exceptionally narrow scope, protecting only “circulation and similar records of a library which identify the user of library materials.”[131]

In Hawaii, where there is no relevant statute, the state attorney general wrote that “an individual’s privacy interest in Library circulation records is not outweighed by the public interest in disclosure.”[132] That statement makes no mention of the records of a person using the library for non-borrowing services, and certainly no mention of the records of a person seeking to remove or restrict library materials.[133] The Kentucky State Attorney General wrote in their own opinion letter: “We think that the individual’s privacy right as to what he borrows from a public library (books, motion picture film, periodicals and any other matter) is overwhelming,” thus explicitly limiting their conclusions to book borrowers.[134]

Each state also has its own open records act, which could impact the anonymity analysis. A full account of all 50 states’ policies is beyond the scope of this article, but in general, despite subtle differences, all statutes of this nature protect readers, while none explicitly protect book challengers.[135]

The Colorado Court of Appeals relied solely on the statutory language of C.R.S. § 24-90-119.[136] However, had they placed the issue of patron privacy in context, especially with an understanding of the ALA’s approach to reader privacy (discussed in Section IV), they would have concluded that C.R.S. § 24-90-119 was written to protect readers, and was never intended to shield the identities of people actively engaging in censorship. Part III explores how the Supreme Court’s history of anonymity opinions also supports the idea that book challenger identities should or at least can be public.

IV. The Tenuous Legal Right to Anonymity

As explained above, the Colorado Court of Appeals decided the Reaman case as a matter of statutory interpretation, not as a constitutional issue, and the Colorado legislature responded in kind.[137] The First Amendment supports — or at least does not prohibit — the legislature’s decision. Further, the First Amendment logic of Tattered Cover does not govern here because the facts are distinguishable. This section will explain the Supreme Court’s most important decisions regarding the First Amendment’s protections for anonymity, and the next section will explain why book challenges are best treated, under the First Amendment, as a matter of petitioning rather than speech. Both approaches support Colorado’s law allowing disclosure of book challengers’ identities.

Supreme Court precedent makes clear that in some circumstances, Americans have a recognized legal right to remain anonymous, but the right is not absolute.[138] Courts have found that the right of the public to know who is engaging with speech and information sometimes outweighs the privacy interests of the speakers.[139] For example, organizations and associations may protect the identities of their members from state discovery when disclosure might plausibly lead to member harassment.[140] In Bates v. City of Little Rock, at the height of the Civil Rights Movement, the city of Little Rock demanded that the National Association for the Advancement of Colored People (NAACP) turn over a list of names of their members and contributors.[141] The NAACP refused because “public disclosure of the names of our members and contributors might lead to their harassment, economic reprisals, and even bodily harm.”[142] The city fined them for their refusal.[143] The Supreme Court held that the city’s law requiring disclosure was invalid under the First Amendment because “it sufficiently appears that compulsory disclosure of the membership lists . . . would work a significant interference with the freedom of association of their members.”[144] This finding was based on “substantial uncontroverted evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm.”[145] The Court reiterated this principle in a similar case regarding the NAACP’s presence in Alabama, writing “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”[146]

More recently, in Americans for Prosperity Foundation v. Bonta, the Supreme Court found that requiring even non-public disclosure violated the First Amendment’s implicit right of association.[147] A California law required that charitable organizations disclose the identities of their major donors to facilitate government review of fraud, but the state did not plan to disclose the list publicly.[148] The Court found that “while assurances of confidentiality may reduce the burden of disclosure to the State, they do not eliminate it,”[149] adding “the disclosure requirement ‘creates an unnecessary risk of chilling’ in violation of the First Amendment….indiscriminately sweeping up the information of every major donor with reason to remain anonymous.”[150]

The Supreme Court further upheld the importance of anonymity for individuals circulating literature in Talley v. California.[151] There, a Los Angeles municipal ordinance stated that anyone distributing a handbill must include their name and address on the literature.[152] Talley circulated unsigned handbills urging a boycott against merchants who discriminated against people of color.[153] Los Angeles convicted Talley, claiming the law was “aimed at providing a way to identify those responsible for fraud, false advertising and libel,” but the court was unpersuaded.[154] Noting that “anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind,” the Court found that “there can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression.”[155]

In McIntyre v. Ohio Elections Commission, the Court made a similar finding, again striking down a law requiring identifying information to be placed on publicly distributed literature.[156] In his dissent, Justice Scalia insisted that there is no recognized “generalized right of anonymity” in speech.[157] Instead he argued the Court’s tradition “recognized a right to an exemption from otherwise valid disclosure requirements on the part of someone who could show a ‘reasonable probability’ that the compelled disclosure would result in ‘threats, harassment, or reprisals from either Government officials or private parties.’”[158]

While the Supreme Court at least sometimes protects anonymity regarding group association, there are two important situations in which the Court has found that the public’s right to know outweighs the right to anonymity: signing a referendum and donating money to political candidates and causes. Both scenarios are distinguishable from the precedent above because they focus on interacting directly with political processes.

In 2010, the Court addressed anonymity for voter referendums in Doe v. Reed. Washington State, like many states, has a voter referendum procedure whereby voters can sign a petition to place a referendum on the ballot.[159] The procedure requires that petition signers include their names and addresses so that the government can verify that all signatures are lawful.[160] Washington’s Public Records Act allows individuals to request copies of referendum petitions and share that information publicly through open records requests.[161] Reed sought disclosure of a petition that invited signatures from residents who wanted to limit the extension of certain benefits to same-sex couples.[162] Some signers of the petition objected because disclosure might leave them vulnerable to harassment.[163] The Court upheld the disclosure, determining that while “petition signing remains expressive even when it has legal effect in the electoral process,” the electoral context is important because Washington has an “undoubtably important” interest in “preserving the integrity of the electoral process” and “promoting transparency and accountability in the electoral process,” which is “essential to the proper functioning of a democracy.”[164] The Court was not persuaded by the plaintiff’s claims that they might face harassment due to the controversial nature of the issue.[165] Because “only modest burdens attend the disclosure of a typical petition,” the Court held that disclosure would not violate the First Amendment.[166]

In Buckley v. American Constitutional Law Foundation, the Court again addressed anonymity in petitioning, upholding part of a Colorado law that required people who paid petition circulators to disclose their identities and the amount spent.[167] The Court viewed the disclosure “as a control or check on domination of the initiative process by affluent special interest groups.”[168] With disclosure requirements in place, “voters are informed of the source and amount of money spent by proponents to get a measure on the ballot,” a compelling enough reason to override the funders’ privacy interests.[169]

Perhaps the most famous and controversial decisions regarding anonymous speech relate to campaign finance. In Buckley v. Valeo, the Court upheld the parts of the Federal Election Campaign Act of 1971 that required public disclosure of contributions and expenditures supporting candidates.[170] This disclosure requirement, the Court said, served “the interest in alleviating the corrupting influence of large contributions.”[171] While “compelled disclosure can seriously infringe on privacy of association and belief guaranteed by the First Amendment,” such disclosure can be valid if it survives exacting scrutiny, meaning there is a “substantial relation between the governmental interest and the information required to be disclosed.”[172] The Court further stated “that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the ‘free functioning of our national institutions’ is involved.”[173]

In sum, the Court has recognized that anonymity is sometimes a right inherent to First Amendment exercise. However, at least in the context of political advocacy, it is not an absolute right. Where the state can assert a compelling interest, and where the disclosure requirement is narrowly tailored to serve that compelling interest, the state can mandate that people engaging in the political process in certain ways surrender their anonymity. Those seeking to evade disclosure may do so only if they can show that they are reasonably likely to suffer threats and harassment. Where individuals cannot meet that standard, disclosure best serves the public’s interest in transparency and accountability. Given the precedent, Colorado’s statute favoring disclosure of library reconsideration requests is constitutionally permissible and should be adopted by other state legislatures. Similarly, where such statutes are lacking, courts that confront similar issues should consider the constitutional case against anonymity for book challengers.

V. The First Amendment Case for Disclosure of Book Challengers

While the Colorado Court of Appeals focused on the issue of disclosure as a purely statutory issue, the Constitutional case for upholding — if not requiring — a disclosure of book challenger information is strong under both the Petition Clause (Part A) and the Free Speech Clause (Part B), as informed by the Court precedent on anonymity described in Section III. For these reasons, courts should uphold Colorado’s law against a First Amendment challenge.

a. Book Challenges as an Act of Petitioning — the Public’s Right to Transparent Government Outweighs the Petitioner’s Right to Anonymity

The act of challenging a book in a public library may be analyzed either as an act of speech or an act of petitioning.[174] This section explores the First Amendment right “to petition the government for redress of grievances” and concludes that book challenging is inherently an act of petitioning that disfavors anonymity in the face of public records requests.[175]

The U.S. Supreme Court has historically conflated the Petition and Speech Clauses of the First Amendment, finding little, if any, reason to distinguish petitioning from speech.[176] “In the contemporary United States, the Petition Clause has little practical legal effect,” explains one scholar, “and the Supreme Court has not attempted to delineate its doctrinal and jurisprudential contours independently of its cousins, the Free Speech and Assembly Clauses.”[177] While the Petition Clause does serve some independent purposes, particularly related to lobbying and the right to access federal courts, “beyond this, the Petition Clause has virtually no independent legal force or effect.”[178]

One consequence of the Court’s choice to ignore the Petition Clause as an independent entity is that there is little widespread agreement as to what petitioning is.[179] The modern meaning of the word “petition” is most popularly ascribed to the act of signing, circulating, or funding a petition — whether it be an official voter referendum petition or a grassroots petition. Some definitions of petitioning include communicating directly with a government representative.[180] What all definitions have in common is that “the Petition Clause stands for the proposition that government, and those who work for it, must be accessible and responsive to the people.”[181]

Though Courts have historically treated the Petition Clause in tandem with free speech, there are several reasons to see the two rights as distinct. First, most obviously, the founders felt the need to include it as a separate right. Had they seen the act of speaking as equivalent to the act of petitioning, the entire inclusion of the Petition Clause would have been superfluous.[182] In fact, “when James Madison introduced the Bill of Rights in the House of Representatives on Monday, June 8, 1789, the Speech and Press clauses were in a separate provision from the Assembly and Petition Clauses.”[183]

Second, while petitioning might always be a form of speech, all speech is not petitioning. In fact, the majority of expressive activity bears no direct relation to petitioning the government for redress of grievances. Even where the speaker is criticizing the government or advocating for a particular view, it does not necessarily follow that they are directly seeking government action. Therefore, a court’s finding about petitioning does not automatically apply to the entire arena of expressive activity. Put another way, courts can find that petitioning need not remain anonymous, while upholding the anonymity of other types of speech. As it stands, the Supreme Court’s history of upholding disclosure requirements most often centers on campaign donations, as in Buckley v. Valeo, and either circulating or signing a referendum petition, as in Doe v. Reed.[184] These directly involve seeking redress of grievances through tangible government actions that the speaker is trying to induce.[185]

In contrast, where the Court has struck down disclosure laws, the act in question was typically one that fell further from the small realm of expressive speech that constitutes “petitioning.” Circulating leaflets to other potential voters, as in Talley, is certainly politically expressive but the audience is voters and the public at large, rather than current or aspiring government officials.[186] In those cases where the speech at issue was not directly aimed at the government, the Court was more likely to uphold the speaker’s right to remain anonymous. Where the audience is the government, they are more likely to uphold disclosure requirements.

In Brookhart v. Reaman, the request for reconsideration forms were directed to government officials at the public library and directly sought change in government function.[187] Therefore, book challenges are best described as acts of petitioning rather than non-petitioning speech. The challenger speaks directly to a government employee through an official process, with the understanding that the request will reach an employee who has the power to decide whether to fulfill it.[188]

The case of Sund v. City of Wichita Falls illustrates how courts apply petitioning logic to library challenges.[189] Wichita Falls passed a resolution that allowed 300 library card holders the right to remove challenged books from the children’s section of the library if they signed a petition to that effect.[190] The resolution explicitly established “a [statutory] right of the public to petition regarding the location of children’s materials in the Wichita Falls Public Library.”[191] All petition-signers had to have a valid library card, which presumably can be traced back to their name and address, though the statute did not address whether signers could remain anonymous.[192] After the community gathered enough signatures to remove two children’s books about LGBTQ+ families, the Texas Northern District Court struck down the law as a “draconian procedure that permits 300 adults who have library cards — out of a total of over 100,000 residents in Wichita Falls — to censor any children’s books to which they object.”[193] The Sund court’s analysis supports the conclusion that challenging a book is an act of petitioning because it is an act that directly seeks government change.[194]

A book challenger who distributes anonymous flyers with a list of the books she objects to is not petitioning. She is exercising her right to speech. However, once she switches from seeking to influence private action to influencing government action, she has crossed into petitioning territory. She is seeking a “redress of grievances,” to borrow the language of the First Amendment.[195] Where a person is attempting to directly influence government actors, the public gains a specific interest in preventing fraud and corruption because the public deserves to know that government decisions are made on a legitimate basis.

Library book challengers seek to limit and control the viewpoints that community members can access. Where those challengers are successful, the consequences are significant. Young people questioning their sexual orientations may not be able to access books that help them better understand themselves. Whole chapters in U.S. history may be erased from library bookshelves. Women wanting to learn about the anti-abortion movement may not be able to access books about it. While it’s true that all this information is available, to some degree, on the internet, there is a reason that the publishing industry has survived the last three decades: books still matter to people. Readers still crave diverse memoirs, novels, and in-depth histories. We still need books, and we still need public libraries. Furthermore, book challenges still carry great symbolic effect. We pay attention when people try to remove books from libraries, because the content of those books says something about our cultural character.

It does not serve the best interests of the public to allow book challengers, in light of the significance of their actions, to remain anonymous. Community members have the right to know if book challengers are local politicians or candidates, for example, so they can consider their choices on the ballot. They have the right to know if one community member submits one hundred reconsideration requests, while nobody else in the community submits a single one, because that helps them gauge the actual level of engagement in the community around a certain topic. Put another way, while it may seem initially alarming if one hundred books about LGBTQ+ history are challenged at a single library, it is considerably less alarming if only one community member, rather than one hundred community members, engaged in such behavior. Furthermore, community members should have the right to verify that reconsideration requests are coming from within their community, so they can be on guard against outsized influence from far-flung groups like Moms for Liberty. Public libraries are meant to be centers for their own communities, and many public librarians build their collections with the needs of their specific community in mind. Community members in Gunnison, Colorado, may wish to exclude the opinions of a particularly motivated book challenger in Bangor, Maine, and it is their right to protect their own community integrity by doing so. Overall, the public’s right to know who controls their information is simply too important to surrender to the cloak of anonymity.

Professor Helen Norton suggests that in any analysis balancing disclosure with secrecy we should ask why speakers want to keep their anonymity, because some reasons are inherently more worthy of consideration than others.[196] Though the Gunnison challengers did not assert their reasons for seeking anonymity in detail, focusing instead on their alleged statutory right to such anonymity in the library context, there is an implicit fear among some supporters of anonymity that library challengers might face harassment for their requests. This is the reasoning that led the Court to err on the side of anonymity in Bates v. City of Little Rock.[197] However, Bates was decided at the height of the Civil Rights Movement, when there was a proven, highly significant threat that people’s lives could be in danger if their membership in the NAACP was disclosed. Plus, the Court in Doe v. Reed heard evidence that petitioners feared retaliation because they signed petitions seeking to overturn pro-LGBTQ+ laws.[198] There, the Supreme Court was unpersuaded that the threat of such retaliation — which, unlike in Bates, was speculative, rather than evidenced by the terrorism facing the black community in Arkansas — overruled the right of the public to know who was influencing the government.[199] Here, in Gunnison, while harassment of people who object to LGBTQ+ or anti-racist books in the library is not out of the realm of possibility, there is no evidence offered in the Court of Appeals decision to support its likelihood.[200] Therefore, absent such proof, the balance favors disclosure and the public’s right to know. Importantly, this is true not only under a Petition Clause analysis, but also under a Speech Clause analysis.

b. Book Challenges as an Act of Speech — the First Amendment Does Not Prohibit Disclosure Laws and Findings

As explained above, given their long history of ignoring the Petition Clause, Courts are unlikely to conduct an explicit Petition Clause analysis for the question of library book challenger anonymity. However, even under the Speech Clause and its incorporation of the Petition Clause, the public’s right to know book challenger’s identities outweighs that challenger’s right to anonymity. This Section explains how the purposes of the Free Speech clause and the strict scrutiny standard support a law requiring disclosure of library book challengers.

The First Amendment guarantees that the government may not enforce laws that unlawfully suppress freedom of speech.[201] This right protects a wide range of speech activities, from protesting the draft to posting content on social media that is critical of a cheerleading coach.[202] This provision of the Constitution has a rich history, case law, and tradition of scholarship.[203] The Court has also stated that this provision of the First Amendment protects a person’s right to access information.[204] Colorado’s Tattered Cover decision reinforced that the First Amendment also protects a person’s right to access information anonymously,[205] which likely drove the Colorado legislature to pass C.R.S. § 24-90-119 in the first place.[206]

However, in Reaman, the Colorado court’s choice to equate a book challenger with any other library “user” for the purposes of anonymous information seeking ignores the history of the First Amendment, the important principles that guide Tattered Cover, and the purpose of library patron privacy as articulated by the American Library Association’s privacy commitment.[207] All mean to protect information seekers. Submitting a request for reconsideration is, by definition, not an act of information seeking — it is, in fact, the opposite.

To overcome the First Amendment right to access information anonymously, the government’s need in obtaining identifying information must be compelling and there must be no reasonable alternative methods of meeting that need.[208] The Tattered Cover court wrote plainly that “the First Amendment embraces the individual’s right to purchase and read whatever books she wishes to, without fear that the government will take steps to discover which books she buys, reads, or intends to read.”[209] This right is essential, but it is not the right at stake in Brookhart.

Upholding a book challenger’s right to anonymity does not protect the public’s ability to challenge authority or participate in the marketplace of ideas, which are two of the most important values that drive courts to protect a reader’s anonymity. The only interest the challenger has is fear of public reprisal which, when not shown in evidence, is not sufficient to override the public’s right to know. This is especially true here, where the challenger is actively seeking to prevent other people from exercising their First Amendment right to access information. When a challenger seeks to have a book removed or restricted, they are doing the opposite of promoting the marketplace of ideas. [210]

The American Library Association, the country’s most important authority on public libraries, is a long-time advocate of the right of community members to access books and other library resources anonymously.[211] In fact, some scholars have looked to the public library’s long commitment to anonymity as a “place to find a model for federal laws.”[212] The ALA’s Code of Ethics states that confidentiality extends to “information sought or received and resources consulted, borrowed, acquired or transmitted, including, but not limited to, reference questions and interviews, circulation records, digital transactions and queries, as well as records regarding the use of library resources, services, programs, or facilities.”[213]

While privacy is an important component of the ALA’s Bill of Rights, most of the document expresses emphatic support for the free exchange of ideas.[214] Items #2-4 state the following:

“II. Libraries should provide materials and information presenting all points of view on current and historical issues. Materials should not be proscribed or removed because of partisan or doctrinal disapproval.

III. Libraries should challenge censorship in the fulfillment of their responsibility to provide information and enlightenment.

IV. Libraries should cooperate with all persons and groups concerned with resisting abridgment of free expression and free access to ideas.”[215]

It might seem counterintuitive, then, that the library, with its adamant history of protecting privacy, should not defend a book challenger’s right to anonymity. However, the value of anonymity in information seeking does not exist in a vacuum, but alongside the (at least) equally important value of providing open and free access to information. Where these values are threatened via a book challenge, librarians must engage in a balancing act. Here, the balance favors disclosure. Libraries should not be in the business of making it as comfortable as possible to challenge a book. They should, however, be transparent in sharing details of how they operate as collectors and institutions. Denying anonymity for book challengers while retaining it for book readers is not contradictory.

Under current law, Colorado’s Standards for Decisions Regarding Library Resources Act should pass the exacting scrutiny standard employed by the U.S. Supreme Court in other cases relating to anonymity.[216] The statute serves two potential government interests, countering and discouraging censorship, both of which are compelling.

First, there is a compelling interest in a citizen, especially a journalist, learning the identities of book challengers. Censorship is socially undesirable. It runs counter to the principles of the First Amendment and the purpose of a publicly funded library. Knowing the identities of book challengers allows the public to ensure that challengers are local members of the community, rather than representatives from large advocacy organizations. It also allows the public to determine whether one particularly censorious member of the community is having an outsized influence over the composition of the library collection or whether a political representative is involved.

Relatedly, a book challenger disclosure requirement might discourage censorship. When there is less censorship, the public benefits from access to a greater range of ideas, which is certainly a compelling government objective. The “chilling effect” that is a potential negative outcome when book readers lose anonymity becomes a positive when book banners lose the ability to remain anonymous.

VI. Conclusion

The Colorado State Legislature made the right decision in passing legislation to ensure that book challengers cannot hide behind the veil of anonymity. As explained above, their law should survive a First Amendment challenge as both an act of speech and an act of petitioning. Legislatures around the country can and should review their own library privacy laws to ensure that book challengers cannot claim anonymity in their own communities.

Protecting a person’s right to read anonymously remains a vitally important function of the First Amendment and equivalent rights in state constitutions. However, that right can be protected without sacrificing the people’s right to know who is attempting to control their access to stories, history, and ideas.

* AUTHOR FOOTNOTE

  1. American Library Association, Book Ban Data, https://www.ala.org/advocacy/bbooks/book-ban-data. ↑
  2. Id. ↑
  3. Id. ↑
  4. Elizabeth A. Harris & Alexandra Alter, Book Bans Are Rising Sharply in Public Libraries, N.Y. Times, Sep. 21, 2023, https://www.nytimes.com/2023/09/21/books/book-ban-rise-libraries.html. ↑
  5. Brookings Institute, Moms for Liberty: Where are they, and are they winning? https://www.brookings.edu/articles/moms-for-liberty-where-are-they-and-are-they-winning. ↑
  6. Bill Chappell, A Texas lawmaker is targeting 850 books that he says could make students feel uneasy, Oct. 28, 2021, https://www.npr.org/2021/10/28/1050013664/texas-lawmaker-matt-krause-launches-inquiry-into-850-books. ↑
  7. Matt Krause, List of Challenged Books, https://static.texastribune.org/media/files/94fee7ff93eff9609f141433e41f8ae1/krausebooklist.pdf. ↑
  8. American Library Association, Book Ban Data, https://www.ala.org/advocacy/bbooks/book-ban-data. ↑
  9. Susan L. Webb, Book Banning, Free Speech Center at Middle Tennessee State University, Aug. 8, 2023, https://firstamendment.mtsu.edu/article/book-banning. ↑
  10. U.S. Const. amend. I. ↑
  11. Webb, supra note 9. See Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982). ↑
  12. Brookhart v. Reaman, 2023 COA 93, 541 P.3d 624 (Oct. 5, 2023), cert. denied, No. 23SC823, 2024 WL 3526419 (Colo. July 22, 2024). ↑
  13. Id. ↑
  14. Id. ↑
  15. Denied Petitions for Writ of Ceriorari, No. 23SC823, 7 (Jul. 22, 2024). ↑
  16. Colo. S. B. 24-216, 2024 Leg., Reg. Sess. (Colo. 2024) https://leg.colorado.gov/bills/sb24-216. ↑
  17. Brookhart, 2023 COA 93 (2023). ↑
  18. A History of the Book in America: Volume 2: An Extensive Republic: Print, Culture, and Society in the New Nation, 1790-1840, at 43 (Robert A. Gross & Mary Kelley eds., 2007). ↑
  19. George Eberhart, The Librarian’s Book of Lists (2010). ↑
  20. Id. ↑
  21. Id. ↑
  22. Id. ↑
  23. Id. ↑
  24. Brady Abbot et al. A History of US Public Libraries, Digital Public Library of America (Sept. 2015) https://dp.la/exhibitions/history-us-public-libraries. ↑
  25. Id. ↑
  26. Vartan Gregorian, Remembering Andrew Carnegie’s Legacy, American Libraries (Sep. 30, 2019). https://americanlibrariesmagazine.org/2019/09/30/remembering-andrew-carnegies-legacy. ↑
  27. Id. ↑
  28. Id. ↑
  29. Types of Libraries, American Library Association https://www.ala.org/educationcareers/careers/librarycareerssite/typesoflibraries. ↑
  30. Id. ↑
  31. Id. ↑
  32. Id. ↑
  33. Accessibility in Libraries: A Landscape Review, American Library Association https://www.ala.org/tools/sites/ala.org.tools/files/content/220928-ppo-ltc-access-landscape-review.pdf. ↑
  34. IMLS Releases Annual Data on American Public Libraries, Institute of Museum and Library Services (July 21, 2022), https://www.imls.gov/news/imls-releases-2020-data-american-public-libraries. ↑
  35. John B. Horrigan, Libraries at the Crossroads, Pew Research Center (Sep. 15, 2015), https://www.pewresearch.org/internet/2015/09/15/libraries-at-the-crossroads-about-this-report. ↑
  36. Bookmobiles, American Library Association, https://libguides.ala.org/bookmobiles. ↑
  37. IMLS Releases Annual Data on American Public Libraries, supra note 34. ↑
  38. Id. ↑
  39. Quotable Facts About America’s Libraries, American Library Association (Jan. 2017) https://www.ala.org/aboutala/sites/ala.org.aboutala/files/content/quotable%20facts.2017.downloadable.pdf. ↑
  40. Daniel A. Gross, The Surprisingly Big Business of Library e-Books, The New Yorker (Sept. 2, 2021), https://www.newyorker.com/news/annals-of-communications/an-app-called-libby-and-the-surprisingly-big-business-of-library-e-books. ↑
  41. Jeffrey M. Jones, Americans Reading Fewer Books Than in the Past, Gallup (Jan. 10, 2022), https://news.gallup.com/poll/388541/americans-reading-fewer-books-past.aspx. ↑
  42. Horrigan, supra note 35. ↑
  43. Scott E. Casper et al., A History of the Book in America: Volume 3: The Industrial Book, 1840-1880, at 291-292 (2007). ↑
  44. Id. at 291. ↑
  45. Id. ↑
  46. Id. ↑
  47. Id. at 308-309. ↑
  48. Kelly Jensen, The Most Popular Books in US Public Libraries 2023, Book Riot (Dec. 21, 2023), https://bookriot.com/the-most-popular-books-in-us-public-libraries-2023. ↑
  49. Operation Policy and Procedures: Collection Development, Lower Columbia College Library Services https://lowercolumbia.edu/library/_assets/documents/collection-policy.pdf. ↑
  50. Id. ↑
  51. Where Does Public Library Funding Come From?, Every Library (June 28, 2023), https://action.everylibrary.org/where_does_public_library_funding_come_from#:~:text=Did%20you%20know%20that%20staff,renovations%20or%20one%2Dtime%20improvements. ↑
  52. Abby Preschel Kalan, The Practical Librarian’s Guide to Collection Development, American Libraries (May 20, 2014), https://americanlibrariesmagazine.org/2014/05/20/the-practical-librarians-guide-to-collection-development. ↑
  53. Id. ↑
  54. Maggie Fieldhouse & Audrey Marshall, Collection Development in the Digital Age (2011). ↑
  55. Public Library Revenue, Expenditures, and Funding Sources, American Academy of Arts & Sciences https://www.amacad.org/humanities-indicators/public-life/public-library-revenue-expenditures-and-funding-sources. ↑
  56. Antonia Noori Farzan, A library wanted a New York Times subscription. Officials refused, citing Trump and “Fake News,” The Washington Post (Nov. 5, 2019), https://www.washingtonpost.com/nation/2019/11/05/new-york-times-citrus-county-florida-library-subscription-rejected-fake-news. ↑
  57. Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 208 (2015). ↑
  58. Id. ↑
  59. , About Banned & Challenged Books, American Library Association, https://www.ala.org/advocacy/bbooks/aboutbannedbooks. ↑
  60. Id. ↑
  61. , Book Ban Data, American Library Association, https://www.ala.org/advocacy/bbooks/book-ban-data. ↑
  62. ACLU, What is Censorship? (Aug. 30, 2006), https://www.aclu.org/documents/what-censorship. ↑
  63. PBS, Definitions of Censorship, https://www.pbs.org/wgbh/cultureshock/whodecides/definitions.html. ↑
  64. Noori Farzan, supra note 56. ↑
  65. See Cohen v. California, 403 U.S. 15 (1971); Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011). ↑
  66. Congressional Research Service, Free Speech: When and Why Content-Based Laws are Presumptively Unconstitutional (Jan. 10, 2023), https://crsreports.congress.gov/product/pdf/IF/IF12308#:~:text=To%20determine%20whether%20a%20content,v. ↑
  67. Jennifer Elaine Steele, A History of Censorship in the United States, 5 Journal of Intellectual Freedom & Privacy 6 (Spring/Summer 2020), https://journals.ala.org/index.php/jifp/article/view/7208/10293. ↑
  68. Susan L. Webb, Book Banning, Free Speech Center at Middle Tennessee State University (Aug. 8, 2023), https://firstamendment.mtsu.edu/article/book-banning. ↑
  69. Id. ↑
  70. Banned & Challenged Classics, American Library Association https://www.ala.org/advocacy/bbooks/frequentlychallengedbooks/classics. ↑
  71. Webb, supra note 68. ↑
  72. Ishena Robinson, Anti-CRT Mania and Book Bans are the Latest Tactics to Halt Racial Justice, Legal Defense Fund, https://www.naacpldf.org/critical-race-theory-banned-books (last visited Apr. 16, 2025). ↑
  73. Id. ↑
  74. Id. ↑
  75. Elle Reeve & Samantha Guff, Children and Parents Begin Uphill Fightback Against Book Bans in Florida, CNN, (Oct. 6, 2023), https://www.cnn.com/2023/10/06/us/florida-banned-books/index.html#:~:text=But%20they%20are%20losing%20out,not%20be%20available%20to%20minors. ↑
  76. Moms for Liberty, Library 101 – OP, https://portal.momsforliberty.org/committees/library-101-op (last visited Apr. 16, 2025). ↑
  77. Robinson, supra note 72. ↑
  78. Id. ↑
  79. Webb, supra note 68. ↑
  80. Id. ↑
  81. Id. ↑
  82. Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 871 (1982). ↑
  83. Id. ↑
  84. Id. ↑
  85. Reconsideration, American Library Association https://www.ala.org/tools/challengesupport/selectionpolicytoolkit/reconsideration. ↑
  86. Denver Public Library, Collection Development Policy (April 2014), https://www.denverlibrary.org/sites/dplorg/files/Collection_Development_Policy_2014.pdf. ↑
  87. Id. ↑
  88. Pike’s Peak Library District, PPLD’s Reconsideration Request, https://ppld.org/reconsideration-process. ↑
  89. Reconsideration, supra note 85. ↑
  90. Id. ↑
  91. Book Ban Data, American Library Association, https://www.ala.org/advocacy/bbooks/book-ban-data. ↑
  92. Brookhart v. Reaman, 2023 COA 93, 541 P.3d 624 (Oct. 5, 2023), cert. denied, No. 23SC823, 2024 WL 3526419 (Colo. July 22, 2024). ↑
  93. Id. at ¶ 13. ↑
  94. C.R.S. §24-90-119 (2003). ↑
  95. Id. ↑
  96. Brookhart v. Reaman, 2022CV30017, 2 (May 16, 2022). https://coloradofoic.org/wp-content/uploads/2022/05/Order-1.pdf. ↑
  97. Id. at 1. ↑
  98. Brookhart v. Reaman, 2023 COA 93, ¶ 8. (Oct. 5, 2023). ↑
  99. See Martinelli v. District Court, 612 P.2d 1083 (1980). ↑
  100. Brookhart v. Reaman, 2022CV30017, 3 (May 16, 2022). ↑
  101. Id. at 3. ↑
  102. Id. ↑
  103. Id. at 4. ↑
  104. Id. ↑
  105. Id. ↑
  106. Id. ↑
  107. Brookhart v. Reaman, 2023 COA 93, ¶ 7 (Oct. 5, 2023), cert. denied, No. 23SC823, 2024 WL 3526419 (Colo. July 22, 2024). ↑
  108. Id. at ¶ 34. ↑
  109. Id. at ¶ 37. ↑
  110. Id. at ¶ 39. ↑
  111. Id. at ¶ 46. ↑
  112. Colorado Freedom of Information Coalition, About, https://coloradofoic.org/about/. Brief for the Colorado Freedom of Information Coalition as Amicus Curiae, Reaman v. Brookhart, 2023 COA 93 (2023), https://coloradofoic.org/wp-content/uploads/2022/11/CFOICAmicusBrief.pdf. ↑
  113. Id. ↑
  114. Brookhart v. Reaman, Petition for Writ of Certiorari, CO Supreme Court, 14, Nov. 13, 2023, file:///C:/Users/sarah/Desktop/Brookhart%20Reaman%20Appeal%20Brief.pdf. ↑
  115. Denied Petitions for Writ of Certiorari, No. 23SC823, 7 (Jul. 22, 2024). ↑
  116. Colo. S. B. 24-216, 2024 Leg., Reg. Sess. (Colo. 2024). ↑
  117. Id. ↑
  118. Id. ↑
  119. Tattered Cover v. City of Thornton, 44 P.3d 1044 (Colo. 2002). ↑
  120. C.R.S. §24-90-119 (2003). ↑
  121. Mehegan, D., Book Advocates Fight Patriot Act Snooping, Houston Chronicle (May 18, 2003) at 6. ↑
  122. Schroeder, H., Free Speech Needs Help, Capital Times (June. 9, 2003) at 8A. ↑
  123. Mehegan, D. Librarians, Booksellers Ask Patriot Act, Annison Star (May 17, 2003) at 1. ↑
  124. Id. ↑
  125. Id. ↑
  126. Klinefelter, A., Library Standards for Privacy: A Model for the Digital World?, 11 N.C. J.L. & Tech. 553, 557 ↑
  127. American Library Association, State Privacy Laws Regarding Privacy Records, https://www.ala.org/advocacy/privacy/statelaws ↑
  128. D.C. Code § 39-108 ↑
  129. Id. ↑
  130. Conn. Gen. Stat. § 11-25 ↑
  131. O.C.G.A. § 24-12-30 ↑
  132. Hugh R. Jones, Op. Ltr. 90-30 Public Access to Library Patron Circulation and Fine Records, https://oip.hawaii.gov/wp-content/uploads/1990/10/90-30.pdf ↑
  133. Id. ↑
  134. Steven L. Beshear & Carl Miller, Office of the Attorney General of the State of Kentucky, OAG 82-149, https://www.ala.org/advocacy/sites/ala.org.advocacy/files/content/privacyconfidentiality/statelibraryprivacy/kentucky_OAG_Opinions.pdf. ↑
  135. American Library Association, State Privacy Laws Regarding Privacy Records, https://www.ala.org/advocacy/privacy/statelaws. ↑
  136. Brookhart v. Reaman, 2023 COA 93, ¶ 46 (Oct. 5, 2023) 541 P.3d 624, cert. denied, No. 23SC823, 2024 WL 3526419 (Colo. July 22, 2024). ↑
  137. Id. ↑
  138. Jason A. Martin & Anthony L. Fargo, Anonymity as a Legal Right: Where and Why It Matters, 16 N.C. J.L. & Tech. 311, 328 (2015). ↑
  139. Id. ↑
  140. Bates v. City of Little Rock, 361 U.S. 516, 524 (1959). ↑
  141. Id. at 517. ↑
  142. Id. at 520. ↑
  143. Id. ↑
  144. Id. at 523 ↑
  145. Id. at 524. ↑
  146. NAACP v. Alabama, 377 U.S. 288, 307 (1964). ↑
  147. Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2389 (2021). ↑
  148. Id. at 2380. ↑
  149. Id. at 2388. ↑
  150. Id. ↑
  151. Talley v. California, 362 U.S. 60, 65 (1960) ↑
  152. Id. at 61. ↑
  153. Id. ↑
  154. Id. at 64. ↑
  155. Id. ↑
  156. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 357 (1994). ↑
  157. Id. at 379 (Scalia, J., dissenting). ↑
  158. Id. (Scalia, J., dissenting). ↑
  159. Doe v. Reed, 561 U.S. 186, 190 (2010). ↑
  160. Id. at 191. ↑
  161. Id. ↑
  162. Id. ↑
  163. Id. at 193. ↑
  164. Id. at 195, 197. ↑
  165. Id. at 200. ↑
  166. Id. at 201. ↑
  167. Buckley v. Am. Constitutional Law Found., 525 U.S. 182 , 205 (1998) ↑
  168. Id. at 202. ↑
  169. Id. at 203. ↑
  170. Buckley v. Valeo, 424 U.S. 1, 61 (1975) ↑
  171. Id. at 55. ↑
  172. Id. at 64. ↑
  173. Id. at 66. ↑
  174. U.S. Const. amend. I. ↑
  175. Id. ↑
  176. Ronald J. Krotoszynski, Jr., Reclaiming the Petition Clause: Seditious Libel, “Offensive” Protest, and the Right to Petition the Government for a Redress of Grievances (2012). ↑
  177. Id. at 10. ↑
  178. Id. ↑
  179. Id. at 6. ↑
  180. Id. at 17. ↑
  181. Id. at 154. ↑
  182. Id. at 14. ↑
  183. Id. at 6. ↑
  184. See discussion supra Part IV. ↑
  185. Doe v. Reed, 561 U.S. 186 (2010). ↑
  186. Talley v. California, 362 U.S. 60 (1960). ↑
  187. Brookhart v. Reaman, 2023 COA 93, ¶ 8. (Oct. 5, 2023). ↑
  188. Id. ↑
  189. Sund v. City of Wichita Falls, 121 F. Supp. 2d 530 (2000). ↑
  190. Id. at 533-534 ↑
  191. Id. ↑
  192. Id. ↑
  193. Id. at 531-532, 534. ↑
  194. Id. at 533. ↑
  195. U.S. Const. amend. I. ↑
  196. Helen Norton, Secrets, Lies, and Disclosure, 27 J. of Law and Pol. 641, 646 (2012). ↑
  197. Bates v. City of Little Rock, 361 U.S. 516, 524 (1959). ↑
  198. Doe v. Reed, 561 U.S. 186, 200 (2010). ↑
  199. Id. ↑
  200. Brookhart v. Reaman, 2023 COA 93 (Oct. 5, 2023). ↑
  201. U.S. Const. amend. I. ↑
  202. Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021); Cohen v. Cal., 403 U.S. 15 (1971). ↑
  203. See Lee C. Bollinger & Geoffrey R. Stone, The Free Speech Century (2018). ↑
  204. U.S. Const. amend. I. ↑
  205. Tattered Cover v. City of Thornton, 44 P.3d 1044 (Colo. 2002). ↑
  206. See discussion supra Part III. ↑
  207. American Library Association, Library Bill of Rights, https://www.ala.org/advocacy/intfreedom/librarybill. ↑
  208. Tattered Cover, 44 P.3d at 1047. ↑
  209. Id. at 1053. ↑
  210. Unite Against Book Bans, Home, https://uniteagainstbookbans.org. ↑
  211. American Library Association, Library Bill of Rights, https://www.ala.org/advocacy/intfreedom/librarybill. ↑
  212. Sarah Shik Lamdan, Protecting the Freedom of Information Act Requestor: Privacy for Information Seekers, 21 Kan. J.L. & Pub. Pol’y 221 (2012). ↑
  213. American Library Association, Professional Ethics, https://www.ala.org/tools/ethics. ↑
  214. American Library Association, Library Bill of Rights, https://www.ala.org/advocacy/intfreedom/librarybill. ↑
  215. Id. ↑
  216. See discussion supra Part IV. ↑