I’ve been rereading the Weld v. Ottawa Public Library Ontario Superior Court decision, as well as Allana Mayer’s post about it and the more I think about it, the more I think this decision completely undermines the legal justification of TPL’s and VPL’s decisions rent space to transphobic speakers in the face of community opposition. The libraries can and will continue to stand by their interpretation of professional ethics, but considering so much weight has been put on the legal requirement for them to rent space to absolutely anyone (even when their own policy countermands this), it’s important to spell out the consequences of this decision.

I’ve written elsewhere about the pernicious privileging of “exchange” as the primary, if not the only, recognized social relation, a consequence of the development of capitalism Marx and Engels recognized as far back as 1847. In effect, Weld v. OPL uses the primacy of exchange to undercut any presumption that room rentals have a public character. The libraries that try to use exchange as plank in their defense of intellectual freedom are, in effect, hoist with their own petard.

Weld v. OPL was a request on the part of Madeline Weld and Valerie Thomas for judicial review of OPL’s decision to revoke a room rental for the screening of a white nationalist film based on its contents. Weld and Thomas claimed that the termination of the rental a) was procedurally unfair and b) violated their Charter right to freedom of expression. It should be noted that OPL cited their room booking policy in their decision to terminate the agreement, a policy that is very similar to the one Toronto Public Library adopted after the Kulaszka memorial.

The court not only denied Weld and Thomas’ claims, it denied that there were even grounds for a judicial review. In other words, the court denied that there was even a role for it to play in adjudicating OPL’s application of policy, because the library was not acting publicly in this case. The most significant part here, for me, is around this question of exchange. The court found that an exchange is, by definition, a private transaction, not a public one, and that a private act of exchange need not (indeed cannot) be a matter of public scrutiny. Obviously, this changes depending on whether the exchange contravenes the criminal code (i.e. fraud) but in general the law leaves exchange as a private transaction. Needless to say this conforms to the liberal and neoliberal conceptions of exchange, contract, and individualism, and so is very definitely open to critique, but under the current regime, we can state that the opinion of the law is that exchange is a private matter.

The reliance on the First Amendment (in the US) and the Charter (in Canada) presupposes that a public library only acts, and always acts, in a public sense, or as a government institution. What this decision tells us is that, in Canada anyway, public libraries can and do act as private parties to an exchange or contract. The reliance on the Charter as a defense of public library actions then becomes much less clear cut. In this case, the court found that the Charter rights were not violated (see the paragraph on censorship below).

As a private matter, room rentals, then, do not - and cannot - fall under the purview of the Public Libraries Act. The Public Libraries Act determines what library activities must be (and remain) public, and that those activities must be provided free of charge, i.e. they cannot be exchange relationships. In Confronting the Democratic Discourse I argue that restricting public library services to taxpayers in fact makes public library services exchanges, but this is not how library services are generally understood. In the case of room rentals, then, the library is not acting as “Public Library” but as the private owner of space for rent. To bring professional ethics to bear on (basically) one’s activities as landlord is perverse, but it also exposes a sharp contradiction in how libraries see their role under capitalism. Discursively, they want to remain “arsenals of democratic culture”, but in reality, they want to participate in the private and undemocratic economy of rent.

This contradiction, I think, lies at the heart of the confusion public libraries have, not only around their values, but around their responses to community pressure. They can’t openly avow that their room rentals are private exchanges with the library as landlord, and so they continue to rely on the discourse of IF, professional ethics, and democracy. And they (as we now know) rely on the institutional authority of, for example, the Ryerson Centre for Free Expression which, after the release of documents this week under the Freedom of Information Act, we know is just shilling for its friends. The democratic importance of intellectual freedom is reduced to an underhanded defense of the public library as landlord.

Finally, as Allana pointed out, the denial of a room rental (I’m going to stop using “room booking” or “hosting” for any transaction of this kind) cannot be censorship. Despite the libertarian lineage of censorship adopted by the ALA, the Office of Intellectual Freedom and (it seems) Canadian libraries, not everything is censorship. As many critics of IF absolutism ¹ have pointed out, it can’t be censorship if the information remains freely and widely available. One of the cornerstones of libertarian definitions of censorship in, for example, the ALA’s Intellectual Freedom Manual, seems to be the power of the library to affect information dissemination or access. However, as the Ontario court found, in the case of a movie screening (and, by extension, a talk given by someone with a website and podcast),

The Ottawa Public Library has no power or authority over the applicants. They are free to seek out another venue for screening the movie. In fact, the applicant, Valerie Thomas, was able to see the movie in another location in another city.

Since denial of a room rental did not prevent Thomas from gaining access to the information, it was not censorship, and it did not contravene the Charter.

Obviously, libraries need to be careful about the ways in which information access can and is restricted (for example, we must continue to address issues of digital divide), but this is not an all or nothing question. Indeed, part of the problem with IF discourse in librarianship is that so much of it is black and white, leaving no room for the kind of nuance many critics of absolutist IF bring to the discussion. As long as those critics are routinely ignored and dismissed out of hand, the kind of uncritical use of professional ethics to justify harmful activities and private exchange will continue to devalue the profession.

I should make it clear that nothing I’ve written here should be read as approval or justification of a system of private property. What I want to point out is that even within the terms of capitalist law and the institution of private property, the public libraries’ insistence that they are legally required to rent space to anyone is completely unfounded.