FAQ: First Amendment, Free Expression and ABA's Ends Policies, determined by the ABA Board of Directors

Q: What change related to freedom of expression and the First Amendment did the Board make to ABA’s Ends Policies?

A: The Board recently changed the Ends Policies from:

Legal and regulatory policies reflect the interests of independent bookstores in such areas as antitrust action, small business assistance, and the First Amendment right to disseminate information as it relates to the bookselling industry.

to

Core members have the resources in support of their right to freedom of expression.

and

Legal and regulatory policies reflect the interests of independent bookstores in such areas as antitrust action and small business assistance. 

Q: Does the ABA still support Free Expression?

A: Yes. Please reference ABA’s work on BookWeb.

Q: Why did the ABA Board specifically change the Ends Policies related to freedom of expression?

A: Over the past ten years, the ABA Board has changed the language related to freedom of expression in the Ends Policies several times. These changes were made to clarify expectations for ABA staff about the desired outcome for the organization’s work and to update the desired outcomes in light of the changing needs of members.

The ABA Board changed the Ends Policies related to freedom of expression in October to prioritize ABA’s freedom of expression resources for members, offer more clarity to advocating for freedom of expression issues directly related to the interests of independent bookstores, and to ensure that ABA’s freedom of expression work didn’t create a potential conflict with ABA’s commitment to antiracism and equity, one of the primary Ends Policies.

Q: Why does the ABA Board change the Ends Policies at all?

A: Per the ABA’s Governance Policy the ABA Board reviews the Ends Policies regularly. The goal is to ensure that the Ends Policies — the desired outcomes of ABA’s work — are kept current and timely, reflect the needs of the members, and prepare stores for the future. The Ends Policies have been regularly changed and the recent history of those changes related to freedom of expression can be found on Bookweb.

Q: Why can’t you put “First Amendment” back into the Ends?

A: Our discussions around the First Amendment collided with our stated goal of being antiracist and equitable. The reason for this is that, mechanically, if the First Amendment retained its place and we followed it absolutely as its advocates within the membership would like us to, the ABA would not be positioned to condemn racist, anti-semitic, homophobic, and transphobic speech (and books), but might actually be compelled to support it. We believe forcing our BIPOC, transgender, and/or LGBTQIA2S+ booksellers to witness their trade association debate dehumanizing decisions such as these is unacceptable.

ABA is not a government entity; we are free to condemn hate speech as a matter of organizational policy. Having the First Amendment in our organizational language kept us in a circular, unproductive debate about whether that was true. Taking it out allowed us to move forward with our work as a board and clarified our mandate in support of free expression to our CEO, whose responsibility is to interpret the Ends to the ABA staff and membership.

Q: Does the First Amendment protect Hate Speech?

A: Yes, per the Supreme Court’s decision in Snyder v. Phelps.

Hate speech is only illegal when it directly incites imminent criminal activity or consists of specific threats of violence targeted against a person or group.

Q: What are Ends Policies?

A: ABA is governed by Carver Governance Policy. Carver Governance is structured so that the Board states the desired goals or outcomes for the association’s work, or the Ends Policies, then the CEO determines how to meet those goals and the ABA team achieves those goals.

Q: Where can I find the ABA’s Ends Policies?

A: ABA Ends Policies are posted on BookWeb.

Q: Who will decide what hate speech is?

A: ABA’s new Ends Policies allow ABA to support free expression when it doesn’t violate the Fourteenth Amendment. If there is a question beyond that about what hate speech is, ABA will use the UN’s definition: “...any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.”

Key Takeaways

• ABA supports the First and the Fourteenth Amendment, that guarantees equal protection under the law, working together.

• ABA doesn’t support speech that is racist, anti-semetic, transphobic, homophobic, i.e. violates equal protection under the law or discrimination based on identity. ABA doesn’t want to be compelled to protect hate speech nor do we want to participate in it.

• ABA provides resources to bookstores in support of their right to freedom of expression and to help them in the fight against book banning in their communities.

• ABA continues to support freedom of expression issues and join others in the fight against the current wave of book banning.

• ABA believes that bookstores have the right to curate their book selection as they see fit. ABA will continue to support bookstores with the resources to fight book banning battles in their communities.

• The current Ends Policies make all of the above goals possible.