Professional Reading: Libraries, the Right to Read, and a First Amendment Theory for an Unaccompanied Right to Receive Information

Oklahoma City University Law Prof Marc Blitz has written Constitutional Safeguards for Silent Experiments in Living: Libraries, the Right to Read, and a First Amendment Theory for an Unaccompanied Right to Receive Information. All librarians should check out this article, available at SSRN (above link) and published at 74 University of Missouri-Kansas City Law Review 799 (2006).

Abstract: The philosopher John Stuart Mill wrote that dissenting or unconventional ideas do most good when they are set forth publicly, in full view of the people (and authorities) likely to find them strange or offensive. Heavy social pressure on non-conformists is harmful, Mill said, because it induces men to disguise [unconventional opinions] or to abstain from any active effort for their diffusion. While bold and unusual thoughts may continue to smoulder in the narrow circles, freedom of expression cannot serve its central purposes, thought Mill, unless it allows new ideas to blaze out far and wide . . . lighting up the general affairs of mankind. This emphasis on public discussion now has a prominent place in First Amendment theory. The Supreme Court's decision in New York Times v. Sullivan, for example, identified the key purpose of First Amendment protection as creating a shelter for uninhibited, robust, and wide-open debate. Another landmark case, Hague v. CIO, similarly suggested that parks and streets have special First Amendment status because they have long been centers of communicating thoughts between citizens, and discussing public questions.

This article suggests that Mill - and those who echo him in First Amendment jurisprudence - have overlooked the extent to which silent intellectual exploration can provide a needed - alternative to public debate or questioning in many circumstances where such publicity would be damaging or disruptive for individuals or their communities. To remedy this oversight, I propose a rethinking of John Stuart Mill's argument regarding liberty of action. Mill's ambitious prescription for liberty was that we needed to clear away heavy and pervasive social pressures toward conformity, leaving individuals free to conduct daring experiments in living, experiments that might reveal either the best path for society or the best path for their personal lives. But such pressures toward conformity arise not only from "social tyranny" (as Mill mistakenly believed) but also from professional, religious, or social commitments that cannot simply be cleared away - because they are part and parcel of the fabric of everyday life.

The answer to this difficulty, I suggest, is that where actual experiments in living aren't practical, society might preserve a chance to conduct thought experiments that have many of the same benefits (and even additional benefits, since there are some experiments possible in one's imagination - or in the pages of a book - that are not possible anywhere else). Physical and electronic libraries provide both raw material, and shelter, for such silent experiments in living. And the First Amendment right to receive information, I argue, should be understood to provide legal insulation for libraries, especially against legislatures (federal, state, or local) that wish to exercise control over the intellectual exploration that libraries make possible.

Within the context of First Amendment theory, this account of the right to receive understands this right as creating an enclave within an enclave. When this right is invoked to protect libraries and other centers of intellectual exploration, it reproduces - within the category of protected First Amendment activities - the line that is often drawn by scholars to mark out the boundaries of this category in the first place. If, as many scholars have argued, the realm of speech deserves special treatment largely because it is a place where individuals might conduct experiments in living (and social policy) too dangerous to be left unregulated in the realm of action, the realm of silent intellectual exploration deserves to be singled out as well also because it provides individuals with a realm - within the larger realm of First Amendment activity - where they might conduct thought experiments which, for one reason or another, are too disruptive or harmful, for them or their communities, to be conducted publicly in the realm of their everyday communications.

Hat tip to Lee Peoples. [JH]