Friday, August 28, 2009

Censored Librarian Fights Back; Defamation Suit by Scott Savage--Maybe the ALA Should Be Sued Too

The American Library Association [ALA] opposes censorship, right? That's why it created "National Hogwash Week," a.k.a. "Banned Books Week," right? False. The ALA refused to come to the aid of a censored librarian. Why? He sought to balance a reading list for college freshmen with conservative choices. See "Persecuted Librarian Censored Again," by Scott Savage, WorldNetDaily, 9 May 2006.

Now, years later, Scott Savage is suing for defamation, and I'll venture to say the need for this suit is possibly a direct result of the ALA's failure to help Scott Savage in the first place. I urge Mr. Savage to consider if there may be any legal remedy against the ALA for damages resulting from its failure to support his efforts to provide a balanced reading list to incoming Ohio State University-Mansfield freshmen. Had Scott Savage recommended inappropriate material for children, the ALA would have snapped to attention. As Mr. Savage said, "Memo to J. Krug: four weeks of heavy media and Internet exposure, and you haven't called – is this a 'Day of Silence' protest on your part?"

So much for the ALA's touted devotion to "intellectual freedom."

For details on the defamation suit, see "Ex-Librarian Refiles Suit Over Reading List Dispute," by Linda Martz, Mansfield News Journal, 28 August 2009.

Hat tip to LISNews for making me aware of this matter.



  1. This comment has been removed by the author.

  2. I didn't phrase my question well in my previous comment.

    #1: How do you think the ALA was responsible for supporting the aggrieved librarian? If I understand the news articles you cite, the reading list challenged by the librarian was a product of the university, not of the library. I don't see any ALA purview.

    #2: Given that the present suit is about allegedly defamatory remarks by faculty members, how do you think this suit could be extended to included the ALA?

  3. Non-Censor, thanks for commenting.

    The removal of your first comment leads me to believe you are finally starting to address the message instead of the messenger. Good. Now we can talk.

    #1: The issue here is not my thoughts but those of Scott Savage. To that end, I linked to his own description of how the ALA let him down. He knows the issue best. Please reread what he said. The ALA apparently spiked his free speech, among other things.

    #2: I am not certain what theory of liability could be used, if at all, but I phrased my suggestion broadly: "I urge Mr. Savage to consider if there may be any legal remedy against the ALA...." If.

    And there may be damages. Consider, for example, if the ALA had acted consistently to protect intellectual freedom. It may have supported Scott Savage in his effort to provide balance on the reading list. The ALA's support may have seriously undercut the alleged defamatory claims made that are the subject of this current and past legal actions. In other words, Scott Savage has had to expend considerable time and money to defend himself in a case where, had the ALA supported intellectual freedom, the college may have dropped its claims against him long ago. Damages, then, could be measured by legal fees expended by himself and his attorneys that may not have been needed but for the ALA's failure to act or to follow through on its agreed action.

    That's just one possible theory of liability. There may be others.

    Non-Censor, thanks again for asking substantive questions about the issues raised.

  4. Just read through Savage's note again. I realize their might be more to this than he's telling, but I still don't see why he (or you) would expect the ALA to step into that particular fracas. It's about books, and indirectly about a librarian, but it's not about a library or library policies. Perhaps there was some communication from the ALA that he's not telling us about.

    Even if the ALA could have prevented some damages to him, it would only be liable if it had caused those damages directly or had a legal obligation to intervene, neither of which is in evidence.

  5. It's true I can think of no legal obligation either. But that's why I said "if." But the lawyers answer is always, "it depends." So it is always possible. Legal discovery is designed to uncover relevant information. The ALA has been sued before, and it will again. It is possible the Scott Savage case may be next, though I can think of stronger cases, like damages for the various children raped or molested in libraries nationwide, which libraries have refused to use legal means to protect children solely as a result of ALA diktat.

  6. Well...that's an interesting point, too. Given that the ALA is a voluntary and advisory organization only, with no regulatory authority over anybody or anything, HOW would the ALA have any responsibility for a crime committed by a member of the public while inside a library? And where were the parents or other supervising adults while these alleged crimes against children were taking place?

  7. There is one legal case where the ALA was sued along those lines and won. But that was before the US v. ALA decision. Now you have libraries were the citizens want to use legal filters, the libraries refuse as a direct result of ALA diktat, children get molested or rape, then the library finally decides to use the filters as a result of the crime. The use of filters AFTER the crime may be an implicit admission the library was wrong in the first place. That is the type of lawsuit I expect to be a winner for the child and a loser for the ALA. Example.

  8. The ALA's policy is an objection to filtering only of constitutionally protected speech, which does NOT include materials that meet the legal definitions of child pornography or obscenity. How does such a policy contribute to crimes against children?

    And each library makes it's own choice about implementing filters. There is no "diktat" from the ALA, only suggestions, and those suggestions don't require any library to make illegal materials available to library patrons.

    The story you cite is indeed a sad one, and I have no doubt that such crimes occur, in libraries and elsewhere. But the perpetrator in this case was a known sex offender with prior convictions, and the failure to constrain his anti-social behavior may lie elsewhere.

    Also, it was not clear from your example how the child came to be in the same place with the perpetrator. Where was her parent or guardian? I'm not saying they did something wrong, but I am saying that the details are not clear.

  9. It took a bit to dig this up, since the ALA web pages are unergoing a lot of rearranging right now. At any rate, from the ALA's Guidelines and Considerations for Developing a Public Library Internet Use Policy

    Consistent with these policies, which collectively embody the library profession’s understanding
    of First Amendment constraints on library Internet use, the Intellectual Freedom Committee
    offers guidelines to public libraries, as follows:
    · Adopt a comprehensive, written Internet use policy that, among other things should:
    · set forth reasonable time, place, and manner restrictions;
    · expressly prohibit any use of library equipment to access material that is obscene,
    child pornography, or “harmful to minors” (consistent with any applicable state or
    local law);

    Post notices at all Internet-access computers that use of library equipment to access the
    illegal materials specified in the Internet use policy is prohibited.

  10. "The ALA's policy is an objection to filtering only of constitutionally protected speech...."

    No. It opposes all filtering for any reason. Yes, it admits what US v. ALA says is legal, but it opposes filtering nevertheless. I have never seen the ALA support filtering. Show me a single case. I have seen the ALA say and do anything to oppose filtering and to lead local libraries to also oppose filtering.

    "And each library makes it's own choice about implementing filters."

    No. Theoretically, yes, but in actually practice, yes and no. All one needs to see to prove the ALA is guiding the choice is to see library policy after library policy being a substantially similar cut out of boiler plate language by the ALA. Further, let a library choose to filter and the ALA almost without fail gets directly involved in that community in an attempt to turn the tide against filtering.

    "But the perpetrator in this case was a known sex offender with prior convictions, and the failure to constrain his anti-social behavior may lie elsewhere."

    Well, that's why a legal case is best to decide this one. In reality, the library had direct knowledge of the offender before the offense in question. The man was banned from another town library in the same system. The man even appeared on television, on Fox News, showing how easy it was to get pron in the very library system. Really, I can see no way the library could escape being found to have previous knowledge of his proclivities.

    "Also, it was not clear from your example how the child came to be in the same place with the perpetrator. Where was her parent or guardian?"

    An immigrant grandmother from China who spoke no English took 3 grandchildren to the public library while the parents worked to make a living. Ages 2, 3, and 8. The 8 year old had to go to the bathroom. The Grandmother stayed with the 2 and the 3 year old. The 8 year old was attacked in the bathroom and left for dead stuffed behind the toilet.

    I know filtering opponents always blame the parents, or say the library is not at fault because the parents must watch the children. Doing so in this case may be cruel and unusual, although normal for such opponents. Simply put, it is impossible for a parent to watch every single child every single minute. You'll understand this when you have kids. And it is unreasonable to pass off blame to the parents precisely because of this impossibility. But, that's why a law suit is needed to test that very theory.

    Regarding the ALA-suggested Internet Use Policy you raised, Non-Censor, that is the leading alternative the ALA uses to argue against filters. The policy should suffice, according to the ALA. Don't use filters, instead, write a policy.

    In truth, I have documented reported case after case after case where such policies are in place but have absolutely no effect. None. Why? Criminals do not follow the policies. They don't even follow the laws of the land, why would they care one whit what a local public library policy says. Sure, you and I follow the policy, but you and I are not criminals.

    Policies fail to stop crime. Filters, however, if managed and used effectively and in accordance with CIPA guidance, have a high success rate. I see very few, and I mean over the years very few articles about child molestations and rapes in libraries having all computers filtered.

  11. I have no doubt that the ALA is guiding. Guiding is not the same as a "diktat."

    How would filters be more effective than policies if an adult has the right to unblock a computer, as the CIPA regs and the US v. ALA decision require? Filters, like policies, only work for those who agree to be bound by them.

    It would appear to me that a policy actually gives a library much broader enforcement authority than a filter. If one patron is making another uncomfortable, the library has the right to disconnect or expel the offending patron, if library policy is clear enough.

    As to the idea that pornography causes criminal behavior ---- I don't feel up to that debate. I know it's controversial, but won't pretend to know enough to argue about it.

    And no, I wouldn't blame the parent, just the real criminal, who probably should have been in jail long before he committed this crime.

  12. It's late and I need to sleep. I see I missed a point in your comment above.

    Even if the library knew that one patron/visitor was a known sex offender, how and why does the library become responsible or liable for his behavior?

    Again, the details of this particular case are fuzzy. If, prior to the attack, the offender was engaging in public behavior that was hazardous, disruptive, or illegal, the police should have been called. That might have prevented the attack, so failure to call the police might create some kind of liability (but those kinds of "failure to intervene" cases don't often get very far).

    But if the offender wasn't disturbing the peace prior to the attack, I don't see it.

    Analogy: If Mr. X walks over to the nearest shopping mall and shoots somebody at random, is the mall responsible? Probably not, unless they were seriously negligent in overlooking obvious warnings of impending trouble.

  13. You can say all that but the facts speak for themselves--libraries with acceptable use policies suffer crime after crime while those with effective filters rarely suffer the crimes about which we have been talking.

    Further, unblock requests are not without limit. For example, unblock requests for plain old anything will not be honored by a CIPA-compliant library. The law provides that the library "may disable the technology protection measure concerned, during use by an adult, to enable access for bona fide research or other lawful purpose."

    The policy sounds broader, as you say, in theory. In practice, it's useless except as a CYA means for the library. Besides, filters alone are not as effective as filters used as a part of an overall strategy, including acceptable use policies.

    Your computer is not protected by only antivirus software. It also must have spyware protection, the latest operating systems updates, the latest software updates, etc. And you need to agree not to practice unsafe surfing habits. Same thing in libraries. Security is like a layered onion. Filters have proven to be the strongest layer, but you still need the whole onion.

    I'm not getting into the pron-causes-criminal debate thing either, but I am entitled to watch the news stories. I see crime after crime in libraries with policies but no filters. Rarely do I see such crimes in a filtered library.

    Yes, the criminal is to blame, and that's why they go to jail, but the ALA may in fact and in law have culpability for creating something similar to what's called an "attractive nuisance." A court may ultimately decide that.

  14. #1. In your observation of the relationship between crime and filters in libraries, have you controlled for other factors, such as big-city v. rural library, etc.?

    #2. Most libraries have a policy requiring adult supervision of young children. That makes it unlikely that the Attractive Nuisance idea can apply -- if the kid's mother brings him to the abandoned car and he gets hurt, there still might be grounds for damages, but probably not under the Attractive Nuisance principle.

  15. After thinking a bit, I came up with one POSSIBLE angle of liability for the library in this assault case. This branch was in a sketchy part of town, to the extent that they had a security guard and the bathroom was usually kept locked. It was not clear how the perpetrator got into the same bathroom with the child, but ***IF*** the library ignored a problem --- such as a broken door lock --- the library could have some liability.

    This wouldn't require the application of any special or unusual legal principles. It would be a case of basic, simple, and general negligence.

  16. I have to say, your assertion that libraries are hotbeds of crime are just patently false.

    Fact is, far more children are raped and molested in churches than in libraries.

  17. "You can say all that but the facts speak for themselves--libraries with acceptable use policies suffer crime after crime while those with effective filters rarely suffer the crimes about which we have been talking."

    Could you provide the citation from which you got this information?


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