Intellectual Freedom

Constitutional principles related to intellectual freedom that affect libraries


First Amendment of the United States Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


Constitutional law principles libraries work under:

  1. 1st Amendment rights include access to information: Board of Education v. Pico, 457 U.S. 853 (1982)
  2. The value of the work must be considered as a whole, not just focus on the most worrying parts: Miller v. California, 413 U.S. 15 (1973)
  3. Courts have laid out standards for censoring in any public forum, including a public library (“a limited or designated public forum”). See, e.g. Sund v. City of Wichita Falls, Tex.,121 F. Supp. 2d 530, 547 (N.D. Tex. 2000).
    1. Removal based on viewpoint is strictly prohibited.
    2. If removal is based on content (i.e. removing all graphic novels, or all books with magic), governmental entity (such as a Library Board) must establish that the removal of material meets strict scrutiny.
      1. Strict scrutiny test: (1) compelling interest; (2) narrowly tailored to achieve compelling interest; and (3) no less restrictive alternative.
  4. Children also have 1st Amendment rights: Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
  5. Suitability for minors must be judged according to appropriateness for the oldest minors (17 year olds) not younger ages: American Booksellers Assn. v. Virginia, 882 F.2d 125, 127 (4th Cir. 1989), cert. denied, 494 U.S. 1056 (1990) and American Booksellers v. Webb, 919 F.2d 1493, 1504-05 (11th Cir.), cert. denied, 494 U.S. 1056 (1990).


Board of Education v. Pico, 457 U.S. 853 (1982): “[i]f petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioner’s decision, then petitioners have exercised their discretion in violation of the Constitution.” Id. At 871


Obscenity is defined in the “Miller test”: Miller v. California, 413 U.S. 15 (1973)

Test: (1) that the average person, applying “contemporary community standards” would find the work, as a whole, appeals to the “prurient interest,” (2) that the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) that the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Miller v. California, 413 U.S. 15 (1973)(emphasis added).


Harmful to Minors is defined: Ginsberg v. New York, 390 U.S. 629 (1968), and also see citations in point 3) above.

The test parallels the Miller test, but the considerations are in the context of offensiveness and serious value for minors. Ginsberg v. New York, 390 U.S. 629 (1968).  Determination must be made in the context of whether the material would be harmful to the oldest of minors.  Material cannot be deemed harmful to minors if it would be constitutionally protected for a seventeen-year-old even if one might conclude that it was “harmful” for a five-year old. 


The above citations and explanations of court cases are intended for informational purposes and are not to be taken as legal advice by any person, for any purpose. 


Though not laws, the Library Bill of Rights expresses the principles of intellectual freedom as applied at public libraries and by professional librarians. These were first drafted in 1939, as the world faced the threat of fascism from the Axis powers, and have had minor edits since.

I. Books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves. Materials should not be excluded because of the origin, background, or views of those contributing to their creation.

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.

V. A person’s right to use a library should not be denied or abridged because of origin, age, background, or views.

VI. Libraries which make exhibit spaces and meeting rooms available to the public they serve should make such facilities available on an equitable basis, regardless of the beliefs or affiliations of individuals or groups requesting their use.

VII. All people, regardless of origin, age, background, or views, possess a right to privacy and confidentiality in their library use. Libraries should advocate for, educate about, and protect people’s privacy, safeguarding all library use data, including personally identifiable information.