Short Circuit: A Roundup of Recent Federal Court Decisions

Frothy fonts, unprofessional death threats, and books about butts and farts.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Bound By Oath podcast: the story of Berman v. Parker. In which the Supreme Court, in 1954, abandoned previous constitutional limits on the gov't's power to take property from Person A to give it to Person B, greenlighting the era of urban renewal. Which was a bad era.

New at Fox News: Ever since Berman, cities have been able to take "blighted" neighborhoods, bulldoze them, and give them to private developers. But Brentwood, Mo. officials are threatening to take property that is not remotely blighted. Does "blighted" mean blighted, or does it instead mean "coveted by the gov't"?

1. Green card holders from Jamaica and the Dominican Republic are convicted of crimes in 2000 and 2012, respectively. In 2019 and 2020, ICE arrests them both and they are held for months without bond while removal proceedings move forward. Both sue, alleging that their detention violates due process. Second Circuit: Correct. We won't draw a bright line on when it has to happen, but at some point, the gov't has to give noncitizen detainees a bond hearing.
2. Diddy (f/k/a Puff Daddy and P. Diddy) has, uh, seen a lot of legal action lately. He's succeeded in at least one, where the Third Circuit (unpublished) rejected a pro se case seeking $45 mil in damages and contending that Diddy's "newfound status as a sexual predator" has made him a public nuisance (by way of billboards featuring him), led to tortious interference (by enabling him to conduct business in places of public accommodation), and created products liability (by allowing him to represent various companies at department stores).
3. Army officer driving through Windsor, Va., is pulled over because his new vehicle's temporary tag was obscured in a tinted rear window. Somehow, this encounter quickly escalates into two officers yelling at him with guns drawn, repeatedly pepper-spraying him, and dragging him from his car. He sues for violations of the Fourth Amendment. Fourth Circuit: The officers mostly get qualified immunity, except for one claim because one of the officers clearly went too far with death threats. Dissent: Those threats were "unprofessional," to be sure, but they didn't prolong the stop so he should be immune for that, too.
4. Back in the old days, Louis XIV would say "L'État, c'est moi." Apparently, they also say that around the South Carolina Department of Parks, Recreation and Tourism. After South Carolina's attorney general had the "State of South Carolina" join an ongoing antitrust suit against Google, Google sought discovery from the Parks & Rec department. But someone there probably not named Ron Swanson said the department had sovereign immunity. Google: Uh, the State waived sovereign immunity when it intervened in the case. Parks & Rec: That was just the attorney general, and he doesn't speak for us. Fourth Circuit: Yes, he does.
5. Texans complain to Llano County public library about children's books about "butts and farts," leading to their removal from shelves. Further complaints prompt the removal of books about sexuality, gender, and racism. Patrons of the library sue, alleging the removal of the books violates the First Amendment, and seek a preliminary injunction. Fifth Circuit: Granted; "a book may not be removed for the sole—or a substantial—reason that the decisionmaker does not wish patrons to be able to access the book's viewpoint or message." Concurrence: Agreed, except the "butt and fart" books don't have a message. Dissent: Curation decisions are gov't speech, and the disagreement between the majority and concurrence shows how unworkable this ruling is.
6. Today's edition of endless immunity-related interlocutory appeals brings us to Quitman, Tex., where a police captain was fired in 2017 for submitting an affidavit in his friend's criminal case supporting a change of venue because of a corrupt relationship among the sheriff, district attorney, and presiding judge. 2019: Fired captain sues for First Amendment retaliation. Fifth Circuit (2022, on motion to dismiss): No qualified immunity. Fifth Circuit (2024, on motion for summary judgment): Still no qualified immunity, please have a trial now. Also, no absolute immunity for the prosecutor for threatening to use his discretion to suppress free speech.
7. Allegation: National medical specialty certifiers coordinated with the Biden administration to censor and chill the speech of physicians who spoke critically of positions taken by Dr. Anthony Fauci, lockdowns, mask mandates, Covid vaccination, and abortion, including by threatening to strip certifications from otherwise qualified physicians who expressed these views. Fifth Circuit: And the district court was a bit too hasty in dismissing First Amendment and antitrust challenges to those alleged practices.
8. Allegation: In 2014, Beavercreek, Ohio officer is summoned to a Walmart by a (false, now-recanted) report of an active shooter; he shoots the suspect dead on sight. Yikes! The man had picked up an unpackaged, unloaded pellet gun (that looked like an AR-15) off a shelf and continued to shop. He was not threatening, and the gun was pointed at the ground when the officer shot him. Sixth Circuit: It's too soon to appeal dismissal of one claim against Walmart; back down for trial on the other claims. (Claims against the officer, chief, and city were settled in 2020.)
9. Does the Second Amendment protect the right to build a thousand-yard commercial shooting range? No, say two of the three opinions in this Sixth Circuit case, from which your summarist learned that Revolutionary War-era sharpshooters were recorded hitting targets up to 900 (but never a thousand!) yards away.
10. According to a reputable source, the Nazi Party developed a frothy disdain for the fonts of twentieth-century type-designer Lucian Bernhard—based on the (incorrect) assumption that he was Jewish. The Seventh Circuit doesn't like Herr Bernhard's fonts either (or Bernhard Modern, at least), though for less Nazi-y reasons: The font simply strains the judicial eyeballs. Quaere whether the court would be better served by simply amending its circuit rules to formally classify permitted or disfavored fonts. Though have a care, CA7: Don't follow in the footsteps of the Northern District of Georgia, whose local rules voice a strident preference for the tropically nonexistent "Book Antigua." (Shout-out to IJ's in-house proofer for catching that one.) And while we're on the subject, allow us to propose a friendly amendment to the circuit's Requirements and Suggestions for Typography in Briefs and Other Papers: Word on the street is that the font of choice for the U.S. Solicitor General's Office is not Century, but a variant of Century Expanded.
11. In Illinois, a state where cannabis is legal, does the smell of unburnt cannabis alone justify a warrantless automobile search? The Seventh Circuit says yes because the smell might indicate an unlawful use, i.e., transporting cannabis in a non-odor-proof container, a misdemeanor under Illinois law. (In an amicus brief, IJ urged the court to hold that cannabis smell alone cannot justify a search given other innocent, plausible explanations for the smell.)
12. Pre-trial detainees who were held in St. Louis's notorious (and now closed) Medium Security Institution file class action claiming they were detained in conditions that "equaled or exceeded 88 degrees." They move for class status. District court: Ouch! Sounds bad, classes certified. Eighth Circuit: You gotta say more than the class is everyone who suffered "putrid physical conditions." The city loses on a bunch of other procedural issues, though, because we're not gonna do its "work for it by developing the argument[s] and putting flesh on [their] bones." Case remanded.
13. Mom sees ad for a toy on Facebook and orders it for her toddler. But it's a sad day at their house when a different toy arrives. She tries to get a refund but it turns out it's a scam and the vendor is in China. She and another scammee sue Facebook under a number of claims. Facebook: Section 230! Ninth Circuit: 230 does not apply to the contract claims as Facebook's promise to moderate scammy ads is separate from its status as a publisher. But for the tort stuff the claims rely on a duty to moderate third-party speech, which is what 230 is all about. Concurrence: This 230 stuff is getting out of hand.
14. Less sophisticated commentators may focus on the substance of the Ninth Circuit's (2-1) holding that it likely violates the Sixth Amendment for Oregon to let indigent pre-trial detainees languish in jail, awaiting trials that can't be held until a defense lawyer is appointed, which may not happen for months. But we know what our readership demands—Younger abstention. And you will positively lose your monocles over the Younger analysis here, which holds that even if Younger's elements are met, "extraordinary circumstances" counsel against abstention.
15. Prosecutor in plea negotiations: We agree to recommend a sentence at the bottom of the guideline range. Prosecutor to district court: We recommend a sentence at the bottom of the guideline range for this top-of-the-food-chain drug dealer who is worse than a murderer. District court: Top of the guideline range it is. Ninth Circuit (en banc): The gov't breached the agreement, but it wasn't an obvious breach, so we affirm.
16. Dissenting judge: I'm trying to explain why the majority of this Eleventh Circuit panel is wrong to conclude that this plaintiff has standing to challenge a venture capital contest that is only open to Black women. Can you think of a sports analogy that will really resonate with the American legal community, particularly in Alabama, Georgia, and Florida? Clerk: What about football? Dissenting judge: By crumpets! Footie is perfect!
17. Miami-Dade officer: I'm entitled to qualified immunity because no published federal appellate opinion warned me it would be unconstitutional to shoot a barking dog, twice, after my colleague had already tasered it into submission. Eleventh Circuit: Some things in life, my guy, we expect you to just know. Case undismissed!
18. Man gets in a shootout with Atlanta-area officers. After he collapses, they detonate a flashbang to see if he reacts; he doesn't, but the officers allegedly continue to shoot him anyway. An autopsy finds 43 bullets and bullet fragments in his body. Excessive force? Eleventh Circuit: Well, the Supreme Court has recognized excessive-force claims against federal officers. But these officers were part of a joint state-federal task force that included U.S. Marshals, and SCOTUS has never said anything about that. Fortunately, there are a few federal agencies his mom (the plaintiff) could have asked to look into this, so it's not like there aren't any remedies.
19. In 2021, FBI agents lied to a judge, got permission to raid safe-deposit boxes owned by people suspected of no crime, and then sent hundreds of forfeiture notices never saying what the box owners did wrong. Then they lost the contents of many of the boxes, including retirees' entire life savings. But don't take our word for it. Head over to The Los Angeles Times and see the FBI agents admit as much under oath. And then click here to learn more.

And speaking of shady, did Pasadena, Tex.'s counsel lie to a judge? Last year, the city reneged on a settlement agreement to allow our client to open his auto-repair shop and resolve his challenge to the city's irrational parking requirements. And in April, the city's lawyer told a judge that the city council had approved his legal strategy (of pursuing an interlocutory review to further delay resolution of the case). But now The Texan reports that city council members say they approved no such thing. Wild. Click here to learn more about the case.

Comments

[David Nieporent]

Some people read the comments!

Last week someone requested that the cases be numbered, and… voila!

[bernard11]

9. You're welcome, David.

The plaintiffs’ argument looks odd to me. Is the implication that there exists a 2A right to build a gun range wherever you like?

And the discussion of the history shows why that whole approach is silly.

Assume that the distance issue was the only one in question. What difference would it make that colonial era riflemen could only shoot 900 yards (though I don’t believe that, except to the extent that if you shoot a lot you’ll eventually hit the target.)?

Whether being able to shoot 1000 yards accurately is a skill you can cultivate depends on what modern weapons are available, not what was available in 1790.

[Krayt]

Please, un-number them. I prefer bullet points.

[loki13]

"Dissenting judge: I'm trying to explain why the majority of this Eleventh Circuit panel is wrong to conclude that this plaintiff has standing to challenge a venture capital contest that is only open to Black women. Can you think of a sports analogy that will really resonate with the American legal community, particularly in Alabama, Georgia, and Florida? Clerk: What about football? Dissenting judge: By crumpets! Footie is perfect!"

We talked about this one earlier. I think that Rosenbaum (the dissenting judge) is correct on standing.

And yes, the soccer analogy is painful. The only explanation I could come up with is that she is based in South Florida, so Messi?

[Alan Vanneman]

Re the Revolutionary "sharp shooter" case, when I was in the army they told us the effective range of any rifle is 460 yards, because at that distance the aiming blade of a rifle appears to the individual holding the rifle to be the same size as a man. In rifle practice, under optimal conditions, I could never hit a target 350 yards away. Unless those minute men were using scopes--and I doubt that they were--hitting individual targets at a 1000 yards, particularly using muzzle loaders, is preposterous. In the Franco-Prussian War, the new guns, with rifled barrels, could shoot a 1,000 yards (or meters). Maybe, standing on a straight road, knowing a long column of soldiers were marching towards you, you could "aim" your rifle at a 45 degree angle, and hit somebody, but that is luck, and not sharp shooting. I believe a bullet fired at 45 degrees from an M-14 would travel 1750 yards.

[Noscitur a sociis]

A rifleman using the technologically superior Baker rifle was considered a virtuoso for killing two French officers at around 600 yards at the Battle of Corunna in 1809, so I agree that 900-yard aimed shots in the Revolution seem doubtful. The only cited episodes in this case that strike me as at all reliable claim 300 yard distances.

[Kazinski]

5. I've been arguing this for a while, at least it made a dissent:
"Curation decisions are gov't speech, and the disagreement between the majority and concurrence shows how unworkable this ruling is."

[bernard11]

I don’t get what this is supposed to mean.

I suppose “Curation decisions are gov’t speech” in the sense that the librarian is a government employee. But so what? Does that mean the Mayor should tell the librarian what books to stock, and which ones to pull?

No. Absolutely not. These are professional decisions, not political ones. There’s plenty of room the library for all sorts of books, expressing all sorts of points of view. Letting one political faction take control and exclude books it doesn’t like is not democratic but authoritarian – an arbitrary exercise of power.

[ducksalad (5/30 bad, really!)]

You do realize that putting librarians at the peak of the First Amendment pyramid is somewhat arbitrary. Even if you decide to do that, which librarian?

Suppose the dispute is between the chief librarian and the assistant librarian for the science section. When it gets to court, which one will you label the “professional” and which one is the “political faction”.

I hope you’re too principled to want to know first which librarian is the one whose science you agree with. So how would you resolve it? Imagine that you have to resolve it without knowing the content of the books in question.

And removals is the easier part, since the absolutist position is to just not remove any books. But what about the acquisition end? It’s simply not possible to acquire every book anyone might want to look at.

[Malika the Maiz]

I don't think it's putting librarians at the peak of the First Amendment pyramid as much as it's an argument that professionally made decisions can be presumed to be more defensible from a viewpoint or content discrimination position. Sort of like saying what's taught in a university science class should be presumed best decided by professional science educators.

[ducksalad (5/30 bad, really!)]

Sort of like saying what’s taught in a university science class should be presumed best decided by professional science educators.

Since you brought it up, I'm a university engineering professor, and one problem we're facing is how to deal with colleagues that are either technically incompetent or severely underteaching, and defend themselves by saying they have academic freedom to decide what and how much to teach. We're trying to upgrade the syllabus content on one course to meet accreditation standards, and a professor is saying he has final say over course content and refusing to play.

That's why the "professionalism" argument doesn't solve it - professionals often disagree.

[Malika the Maiz]

Do you think you should solve it by asking the local public what they think is the best thing to teach here?

[Malika the Maiz]

Or, how about this, if the local community thinks engineering idea X is good while the national community thinks it is faulty, should local pols prohibit the teaching of X is faulty?

And I'm not even sure that's the best analogy, because libraries, unlike universities, can so much easily serve a wide diversity of interests. The idea they can and should only ossify majority views in the area is distressing to say the least, like a reverse Caroline Products reasoning.

[Harvey Mosley]

If the local public is a major source of funding, yes.

[Sarcastr0]

Ah yes, Lysenkoism.

[TwelveInchPianist]

But without the totalitarian government, suppression of dissent, and murder.

You know, Democracy.

[Harvey Mosley]

That's a new word for me. Thank you.
I'm not sure how executing and imprisoning scientists equates to the local public decided how local funds should be used. But hey, you do you, okay?

[ducksalad (5/30 bad, really!)]

What I really think is that the population funding the university, through the process of elections, should elect officials that do in fact have ultimate authority to make the professor teach the assigned material.

Wise voters and wise officials, if such exist, would almost always refrain from micromanaging unless things got out of hand. Because that would defeat the purpose of hiring professionals in the first place. But I don’t think a professor who is too lazy to teach any material should be able to wave the First Amendment and screw both the students and the taxpayers. IMO free speech has nothing to do with it, it’s all a question of how to best manage professionals.

Just a like my physician. I realize the best course is almost always to listen to him, but I insist on an ultimate and unappealable authority to “fire” him for any reason or no reason.

[tkamenick]

Letting professionals do it is one argument. Letting elected representatives who are directly accountable to the populace do it is another argument. You'd think that would be a policy decision made by the populace. Letting judges decide who gets to decide is another argument. This shouldn't be a constitutional question. Government employees don't have 1A rights to decide how to do their jobs, and the populace doesn't have 1A rights to get free access to books they want.

[Sarcastr0]

If the government in the form of a popularly decided policy or an individual is making a viewpoint-discriminatory decision, that has 1A implications.

How is that not a constitutional question?

[TwelveInchPianist]

It’s not a constitutional question because the government is entitled to advance its viewpoint, and decline to advance other viewpoints.

Viewpoint will always be an issue in library curation. A book might be unpopular because its viewpoint is unpopular. But people don’t have a first amendment right to have the library stock unpopular books.

[bernard11]

You do realize that putting librarians at the peak of the First Amendment pyramid is somewhat arbitrary.

Well, someone is going to be at the peak, right?

I hope you’re too principled to want to know first which librarian is the one whose science you agree with. So how would you resolve it? Imagine that you have to resolve it without knowing the content of the books in question.

I'm not a scientist, so I don't think, as a rule, whether I agree or not matters (except for obvious BS like creationism or flat-earth stuff.)

But will give you a couple of answers. First, we could ask some actual scientists what they think. There may be no actual controversy. Now, if it turns out that there is one, what is the problem? Include books representative of various sides.

There is room for more than one book. Failure to understand this is the flaw in most of the "let the voters decide" arguments. You can in fact, represent multiple points of view.

Of course the space is not unlimited, so you do have to pick and choose, but what you don't have to do is declare one side the winner and exclude what it doesn't like.

The job is tricky, I admit. You do need to exclude the BS, and having done that, decide, what is the best set of material remaining on the topic, recognizing that there will be legitimate differences.

Is the librarian perfect? Of course not. And yes, there are bad professionals, but there are excellent ones as well. But a good librarian is going to do a much better job - across the board - than the politicians.

The community will be better served.

[Kazinski]

I'm at the peak of the first amendment pyramid.

But for government speech the person or persons at the peak of the pyramid are the elected officials that are given the authority to spend the money funding the speech. The city council funds the library, but the mayor hires the librarian and administers the funds.

It certainly possible for a city or county to have an elected librarian like many have an elected City Attorney. Counties often have 5 or 6 directly elected officials like Sherriff, DA, Auditor, Clerk Recorder, Assessor. Add a county Librarian to that, and you're good. Or have the city council confirm the librarian and confirm their independence by statute.

[bernard11]

But for government speech the person or persons at the peak of the pyramid are the elected officials that are given the authority to spend the money funding the speech. The city council funds the library, but the mayor hires the librarian and administers the funds.

Sort of a broad assertion. Unfortunately that is in general a terrible policy, because these are not decisions that should be made politically, to appease the loudest screamers in the community. That's exactly what happened here.

[TwelveInchPianist]

"Sort of a broad assertion. Unfortunately that is in general a terrible policy, because these are not decisions that should be made politically,"

But there may be specific instances where it's good policy. If an elementary school librarian is stocking Hustler magazine on school shelves, if might be perfectly appropriate to overrule her. And depending what books were removed, that could very well be similar to what happened here.

[Nige]

Why not deal with the actual books?

[TwelveInchPianist]

Why are you afraid of applying your principles to my hypothetical?

[Nige]

You only engage in abstracts and hypotheticals because you do not oppose religious extremists removing lgtbq books from public libraries and schools.

[bernard11]

Why are you afraid of applying your principles to my hypothetical?

I'm not "afraid" of anything, except getting involved with a nonsensical argument. Your hypothetical is irrelevant.

No system is perfect, and pointing out a possible imperfection doesn't get us anywhere.

[TwelveInchPianist]

"You only engage in abstracts and hypotheticals because you do not oppose religious extremists removing lgtbq books from public libraries and schools."

It depends on the book. Why should I oppose religious extremists removing a book (lgbtq or otherwise) from a public library that I don't think should be there in the first place?

Would you oppose a religious extremist who was attempting to remove the lgbtq equivilent of Hustler magazine from an elementary school library?

As they say, the first amendment doesn't just apply to the speech you agree with, it applies to the speech you hate.

And so far, you've been willing to apply your first amendment defense to books that you probably think should be in the library, but you appear to be unwilling to defend the standard when it applies it books you disagree with.

[TwelveInchPianist]

"I’m not “afraid” of anything, except getting involved with a nonsensical argument. Your hypothetical is irrelevant."

It's not irrelevant. As I said above, I haven't seen anybody willing to apply the first amendment argument to books that are clearly inappropriate for a school library.

[Nige]

‘Would you oppose a religious extremist who was attempting to remove the lgbtq equivilent of Hustler magazine from an elementary school library?’

Why indulge their puritanical fantasies?

'but you appear to be unwilling to defend the standard when it applies it books you disagree with.'

You haven't identified 'books I disagree with.' Real books in real libraries, at any rate.

[TwelveInchPianist]

"You haven’t identified ‘books I disagree with.’ Real books in real libraries, at any rate."

Perhaps there are no real books in real libraries that you would remove.

But there are books that other people would remove, and you want to deny those people the right to use their political voice to get those books removed.

And you are being very cagey about what you would do if you found yourself in a situation where there were books that you thought should be removed.

[Nige]

‘and you want to deny those people the right to use their political voice to get those books removed. ‘

No, I don’t want them to get a free pass to strip libraries of books that offend their religious sensibilities.

‘And you are being very cagey about what you would do if you found yourself in a situation where there were books that you thought should be removed.’

I’m trying to imagine real-world books in libraries I’d like to see removed, and I can’t come up with any. No doubt there are plenty of hypotheticals, like, what if there was an actual lump of shit shaped like a book in the library, would you want that removed? But in practice?

[bernard11]

there may be specific instances where it’s good policy.

So what? That's no argument at all.

I propose policy A, on grounds that will work well in general. It's no counterargument to say, "But here is a case where it will work out badly," so we should adopt B instead, even though there is every reason to think B will usually be worse than A.

This is not geometry. A counterexample doesn't disprove things.

[TwelveInchPianist]

"I propose policy A, on grounds that will work well in general. It’s no counterargument to say, “But here is a case where it will work out badly,” so we should adopt B instead,"

You misunderstand. You propose policy A, on grounds that will work well in general. So we adopt policy A, and I don't feel it's working in our situation, so I propose policy B. That's a perfectly valid argument.

It's perfectly reasonable for voters to think that librarians will do a better job than them, and leave stocking library shelves to librarian's discretion.

But you're arguing that voters should be prevented from intervening even if they don't think the librarians are doing a terrible job.

Hence my Hustler hypo. You might argue, and I might agree, that leaving stocking library shelves to librarians is generally a better policy. But if Hustler magazine starts to turn up on school library shelves, I might be inclined to think that librarians should have less discretion.

[Nige]

'But you’re arguing that voters should be prevented from intervening even if they don’t think the librarians are doing a terrible job.'

What are you arguing, that any such instances are the equivalent of Hustler in a childrens' section?

[TwelveInchPianist]

I'm arguing that almost all voters would stop supporting the librarian's ability to curate books if the librarian chose to stock Hustler in the children's section.

But voters can differ about what is the equivalent of Hustler in the children's section. And in a Democracy, we decide these issues by voting.

[Nige]

Sometimes you try to force the decision by generating a satanic-panic hysteria over books with lgtbq themes being equivalent to Hustler.

[ducksalad (5/30 bad, really!)]

Thanks for the thoughtful response.

If resources permit, the practice I'd like to see is a divided acquisition budget, with perhaps the local librarian, a visiting librarian, and some kind of patron's panel all getting to pick some books. On removals, the default should be don't but if they have to it's strictly on something like the last time the book was taken off the shelf by a patron.

But those are policy preferences. Like Kazinski I'm not totally convinced that the government selecting books for its own libraries is a First Amendment issue. Whether librarians or teachers need protection from the government, or they are themselves the government we need protection from, depends on where you're standing.

[Malika the Maiz]

"Whether librarians or teachers need protection from the government, or they are themselves the government we need protection from, depends on where you’re standing."

Well said. Very thoughtful. My reply is this is why it would be good to have a rule that both the mayor and librarian must adhere to that protects accessibility to diverse viewpoints and content. Libraries should not become the equivalent of government propaganda dissemination centers.

[tkamenick]

But a lot of people think that the books being pushed to be removed these days ARE government propaganda for one side of a societal debate, so they would agree with you.

[Sarcastr0]

Goodnight Moon?

What’s propaganda and what’s not, especially when one part has embraced distrusting all institutions, seems something the political branches are not equipped to address, at least not on their own.

[TwelveInchPianist]

How is the judicial branch equipped to decide what’s propaganda and what’s not?

[MatthewSlyfield]

"On removals, the default should be don’t but if they have to..."
Since space in the library is necessarily finite, they will always have to. If for no other reason than they have to make room to stock new books.

[Nige]

I’m not sure what that’s supposed to acheive. Librarians are already and always have been answerable for the books they stock. What’s happening here is a minority of religious cranks pushing satanic-panic style hysteria in order to remove books featuring lgtbq themes or characters and pretty much anything that qualifies as ‘diverse.’ The obvious answer is just to tell them to fuck off, not to pander or appease them by creating a political/religious vetting system.

[David Nieporent]

I’m not a scientist, so I don’t think, as a rule, whether I agree or not matters (except for obvious BS like creationism or flat-earth stuff.)

The problem with this analogy is that selecting books isn't science. It's just personal preferences all the way down.

[bernard11]

David,

I was responding to DuckSalad's comment above:

<iSuppose the dispute is between the chief librarian and the assistant librarian for the science section. When it gets to court, which one will you label the “professional” and which one is the “political faction”.

I hope you’re too principled to want to know first which librarian is the one whose science you agree with. So how would you resolve it? Imagine that you have to resolve it without knowing the content of the books in question.

[Kazinski]

Why wouldn't the mayor have the right to tell a librarian, who answers to him (in some jurisdictions) buy this book, don't buy that book?

Same as the Mayor has the right to tell the maintenance.supervisor "fill the potholes on Main Street, leave the ones on Oak St.'

Or even 'close the lane on the bridge' during rush hour?

[bernard11]

Why wouldn’t the mayor have the right to tell a librarian, who answers to him (in some jurisdictions) buy this book, don’t buy that book?

Same as the Mayor has the right to tell the maintenance.supervisor “fill the potholes on Main Street, leave the ones on Oak St.’

Because filling potholes does not implicate the First Amendment?

The Mayor (in this case the head of the County's Commissioner Court) is not a tyrant, no matter how extensive his powers over potholes and bridges.

[TwelveInchPianist]

OK, and why is it tyranny for the mayor to tell the librarian, buy this book, don't buy this book (with public funds, of course). If anything, taxing the public to buy books it has no say in choosing and might disagree with is closer to tyranny that the mayor telling the librarian what books to buy.

This is just more of the Orwellian "democracy is tyranny" stuff.

[Nige]

But who's unhappy and complaining that the mayor isn't vetting the library books for them? What books are they objecting to and why? Whose interests are being served by the Mayor imposing potical and religious constraints on the books that a library can stock?

The public, by the way, has every say in the books the librarians choose. They can request any book they want, either to be purchased for the library or via inter-library loan.

[TwelveInchPianist]

“ But who’s unhappy and complaining that the mayor isn’t vetting the library books for them? What books are they objecting to and why? Whose interests are being served by the Mayor imposing potical and religious constraints on the books that a library can stock?”

The voters. So what?

[Nige]

Even I would hesitate to brand all the voters as would-be book banners. I expect the opposite is the case.

[TwelveInchPianist]

You really don't get how voting works?

[Nige]

On the contrary, I get that people don't vote for individual books in libraries.

[bernard11]

taxing the public to buy books it has no say in choosing and might disagree with is closer to tyranny that the mayor telling the librarian what books to buy.

This is another example of the "one book" fallacy.

It is precisely letting the mayor choose that denies the public a voice, especially that part that holds minority views of some subject. Where are their choices? What if they want their children to be able to read books others want banned? The public is not monolithic in its choices., and there is no need to satisfy only one part of it.

By all means let the public have a voice, including those members who disagree with the mayor. Fortunately, libraries can hold a lot of books, reflecting a variety of views.

The problem with your argument is that the mayor is much more likely to make a biased selection than the librarian. And before someone jumps in to tell me I'm wrong, let me say, for the umpteenth time, that of course librarians won't have perfect judgment, but they will do better that the polticians, who by definition hold one-sided views.

Stop arguing that librarians aren't perfect. It's not part of my argument, which is that politicians are inherently going to be much more biased, more subject to pressure from activists.

[TwelveInchPianist]

"Stop arguing that librarians aren’t perfect. It’s not part of my argument, which is that politicians are inherently going to be much more biased, more subject to pressure from activists."

And you are perfectly entitled to believe that. But your claim that the first amendment protected the rights of the librarians from the voters is unsupported by the text of the amendment and unsupported by the principles of individual liberty.

And as I've said before, the argument that limitations on the power of government against individuals protect the actions of unelected officials from accountability to elected officials is downright Orwellian.

[TwelveInchPianist]

And in your view, does the first amendment prevent a town from deciding to have elected librarians? Are they required to hold office during good behavior?

[Harvey Mosley]

I think the biggest flaw in your argument is that you equate with not buying books for the library and removing books from the library with banning books. If anyone has said that they are against the rights of parents to buy whatever books they want for their child, I will join you in condemning them. I haven't seen that happen though.

[bernard11]

taxing the public to buy books it has no say in choosing and might disagree with is closer to tyranny that the mayor telling the librarian what books to buy.

One more time:

The "public" is not a monolith. There is room for lots of books in the library.

You keep talking about taxpayers, but what about the taxpayers who would like to see some of those banned books in the library? Or do you propose to give them a tax break to compensate?

Your idea seems to be that since 51% (or 60%) of the voters elected the mayor they get to throw out any books they don't like - because that's what's happening here. I say that's horseshit and all the ill-thought-out rhetoric about the voters is nonsense.

[TwelveInchPianist]

"Your idea seems to be that since 51% (or 60%) of the voters elected the mayor they get to throw out any books they don’t like – because that’s what’s happening here."

That's how government speech works. Voters get to decide what messages they want the government to promote, and which messages they don't want to promote.

[Nige]

The mayor can fill in a request form like anyone else. Micromanaging the books in a library, what's the point?

[Kazinski]

The point is that if the mayor is making the wrong decisions the voters can vote them out.

You want an unelected librarian to make these decisions that do affect the public, completely unanswerable to the public.

But if that's how you want it start your non-profit library and insulate the decisions from public officials.

But there shouldn't be a lot of controversy over the principle that those who make the decisions on how public money is spent should be answerable to the public.

[Nige]

Well, that is certainly part of the point. You do get that people arguing against this stupidity is as valid as the religious freaks demanding it?

[ducksalad (5/30 bad, really!)]

The guidelines in the main opinion seem deliberately engineered to create more confusion and lawsuits.

It seems to hinge on whether the decision was based on a desire to prevent patrons from accessing the content (invalid), versus a belief that the material is misleading (valid).

Good luck to a judge trying to separate those two motives in the librarian’s state of mind. Probably even the librarian doesn’t know.

[Malika the Maiz]

Most libraries have meeting space where groups give presentations or view films. Should the library (via city council vote) be able to say "No Libertarian Presentations of Films?"

[ducksalad (5/30 bad, really!)]

The court went on at some length to explain that selection of books is not a public forum, unlike the public meeting space.

This is something the SC will eventually need to clarify. On the acquisition side, it is inevitable that the library is going to pick some books and not pick others and will base the decision at least partially on content.

Once acquired, the argument seems to be that the book has some kind of right to stay on the shelf unless objective criteria are met. But then the librarian professional associations went and included "misleading" as a supposedly objective criteria.

[Malika the Maiz]

I'm happy to be corrected, but "some length" seemed to be a paragraph or two to me. And it seemed to simply say "precedent says..." and then go on to distinguish between an author suing to have their book put in the collection and the right of a patron to have access to the information.

I agree the "misleading" thing sounds goofy to me.

[ducksalad (5/30 bad, really!)]

I think as free speech supporters we instinctively want to side with whoever wants there to be more books, rather than fewer books.

I'd be fine with telling the library to keep anything unless it's literally rotted into unreadable compost, or perhaps if it hasn't been taken off the shelf in 25 years.

But the conflicts on the acquistion side are much harder to resolve. I'm not comfortable with saying an MLS degree and employment as a government librarian confers "final say" rights on First Amendment related issues. Librarians can be just as censorious as city councils, school boards, and activist parents.

[bernard11]

I’m not comfortable with saying an MLS degree and employment as a government librarian confers “final say” rights on First Amendment related issues. Librarians can be just as censorious as city councils, school boards, and activist parents.

Who then? Your second sentence is true, but so what? I doubt they are, in general, as censorious as those other groups.

What I suspect is that the most censorious group is the parents, but they typically exert a lot of pressure on boards and councils, so that censoriousness gets passed through. That's what happened here, after all. Three Mrs. Grundy types harassed the muicipal government into removing some books they didn't like.

And a poor librarian will make poor choices, but not necessarily out of political or religious bias, which is where the action is for the others - just look at the list on p.4. no race, no sex, etc. regardless. (And what the hell is wrong with some butt and fart jokes for little kids? They enjoy them, and outgrow them pretty quickly.)

[Malika the Maiz]

Why go there? How about a rule that whoever decides, mayor or librarian, it cannot be based on viewpoint?

[ducksalad (5/30 bad, really!)]

OK, that is a reasonable policy I’d support. Whether the Constitution requires it is questionable.

I’d want some limits on how it’s enforced, e.g. the threshold for allowing a lawsuit. It’s going to be tougher than, say, parade permits where the city can avoid accusations of viewpoint discrimination by just systematically placing identical conditions on each applicant. The library will be doing the picking, rather than approving applications.

Who knows how many books worth of money got wasted on the lawsuit we’re talking about; we wouldn’t want it to become routine.

I’d say it either needs to be either blatantly admitted, like the people that took over that library board, or some solid evidence of an ongoing pattern. A lawsuit over one book for which you personally think the librarian had secret improper motives should not be allowed.

[bernard11]

Of course, Malika.

But I'd add that there need to be mechanisms short of lawsuits to address that issue.

[TwelveInchPianist]

"Why go there? How about a rule that whoever decides, mayor or librarian, it cannot be based on viewpoint?"

So librarians should be required to stock science books that promote flat earth theory? Or health books published by tobacco companies that claim smoking is healthy?

[Nige]

Exactly. The expertise of the librarian is in their judgement and discrimination in choosing which books to stock.

[MatthewSlyfield]

"I’d be fine with telling the library to keep anything unless it’s literally rotted into unreadable compost, or perhaps if it hasn’t been taken off the shelf in 25 years."

The problem with this approach is that the library has a finite amount of space in which to stock books. I doubt it would take anywhere near 25 years for a library to reach the point where they can't purchase new books because they are out of space.

[tkamenick]

I'm a free speech supporter but I don't see free speech issues here. The populace has no free SPEECH rights to get free access to any particular book. We aren't actually talking about banning books (i.e., prohibiting sale, purchase, possession, etc.) here, despite the new-speak attempts to convince us otherwise.

[bernard11]

We aren’t actually talking about banning books (i.e., prohibiting sale, purchase, possession, etc.) here, despite the new-speak attempts to convince us otherwise.

No, we're not, but we are talking about banning books from the public library, which is a free facility, paid for by all the taxpayers, not just the ones who voted for the mayor.

So you get access to your books for free, at government expense, while I have to go buy mine. That's not nothing.

You get to decide not only what your kids can read (for free), but what mine can read for free. Again, not nothing.

[TwelveInchPianist]

That's true for any government provided books. And you still haven't made the case for why the constitution requires that unelected get to decide what books the government gets to pay for, and what books individuals get to pay for.

[SRG2]

the disagreement between the majority and concurrence shows how unworkable this ruling is

That could be applied to every majority v concurrence decision on almost anything.

The dissent appears to be arguing thar the fact that there's disagreement about the reason for a decision means that the dissent is right.

[Noscitur a sociis]

Does that mean the Mayor should tell the librarian what books to stock, and which ones to pull?

Which government official "should" decide is a policy decision. What it means is that a library patron doesn't have an enforceable right to have the government make a different decision.

[bernard11]

i>Which government official “should” decide is a policy decision.

Yes, but. I think having the Mayor decide is a terrible policy, and Hizzoner is restricted by the First Amendment in any event (as I presume the librarian would be).

[David Nieporent]

Hizzoner is restricted by the First Amendment in any event

Not if picking library books is government speech, he isn't.

[bernard11]

All the worse for the argument that he should pick, then.

[bacchys]

The court in the Crawford III killing opinion gets the facts wrong. The police didn't call for him to drop the weapon. They fired within a second or two of seeing him.

They also might have mentioned carrying a long gun wasn't illegal in Beavercreek, OH at the time.

[Sarcastr0]

The increasing rejection of institutions on the right has them thinking absolute power in elected officials is the only legitimate policymaking structure.

[ducksalad (5/30 bad, really!)]

Perhaps you’ve heard the phrase “elections have consequences”, and recall who popularized it.

Are you talking about the library? In that case, I don’t see a whole lot of absolute power going on. A library director took an unofficial order from a county judge and a suggestion from a county commissioner, she says she wouldn’t have done it without them asking but nowhere claims they made it a condition of employment implicitly or explicitly. Then a library board weighed in. Then a citizen’s group and their lawyers. Then a district judge issued some rulings – which is first time anyone really said you must obey me and that’s an order- and then a circuit court got involved.

Seems to me a lot of players – maybe even too many – were involved and checking and balancing each other. Every single participant mentioned, at some point in the process, was able to push things in their favored direction. It was, in fact, the opposite of a single despot wielding absolute power.

[bernard11]

an unofficial order from a county judge

What made it “unofficial?” and as for the county judge in question:

The library is under the general supervision of the County’s Commissioners Court, which is led by Judge Ron Cunningham.

It was, in fact, the opposite of a single despot wielding absolute power.

Well, a group of despots, then. And a lot of the defenders here seem to not care if it were a single despot. But we have read the case differently:

Because of the complaints, Cunningham told Milum to remove the books from the shelves. Commissioner Jerry Don Moss also requested that Milum remove the books, telling her that the next step would be going to court, which would lead to bad publicity, and advising her to “pick her battles.” She followed those instructions and removed the “butt and fart” books from both the library shelves and the catalog….

A few months later, in response to further complaints, Cunningham directed Milum to immediately pull all books from the shelves that “depict any type of sexual activity or questionable nudity.” That direction came via a forwarded email that Cunningham had received from a constituent named Bonnie Wallace. Wallace had sent Cunningham a list of books in the Llano County library system that appeared on Texas Representative Matt Krause’s list of objectionable material, referring to the books as “pornographic filth.” After receiving that list (“the Wallace list”) from Cunningham, Milum pulled the books from the shelves, allegedly to “weed” them based on the traditional MUSTIE factors. Milum testified that she would not have pulled the books had it not been for her receipt of the Wallace list. In fact, she had pulled no other books for review during that time period. By the end of 2021, seventeen books—all on the Wallace List—had been removed from the Llano County library system entirely.

Emphasis added.

So maybe no explicit threat of firing, but definitely explicit orders from her superior, Cunningham.

[TwelveInchPianist]

"The increasing rejection of institutions on the right has them thinking absolute power in elected officials is the only legitimate policymaking structure."

Terrible strawman. No one is advocating for absolute power in elected officials. People are against absolute autonomy for unelected officials.

Another Orwellian claim that voters trying to control the government is totalitarian.

[Nige]

A religious crank minority trying to control the government.

[TwelveInchPianist]

Trying to control the government! By voting! In a democracy! Can you imagine?

[Nige]

What, does that make their aims any less ugly, or is opposing such aims not also democracy? Or are these things only supposed to go one way?

[TwelveInchPianist]

Huh? You are free to vote against allowing religious cranks to control what's in the library.

[Nige]

Wow, thank you for permission to oppose religious book-banning freaks. Do you think pretending to be on the sidelines sufficenlty disguises your tacit support for them?

[TwelveInchPianist]

You don't have my permission to oppose them, but guess what? You can do it anyway!

[Nige]

I would have thought that opting out of opposing them is what would need apologies and justifications, y'know, so it's not seen as tacit support.

[Ken Arromdee]

>In Illinois, a state where cannabis is legal, does the smell of unburnt cannabis alone justify a warrantless automobile search? The Seventh Circuit says yes because the smell might indicate an unlawful use, i.e., transporting cannabis in a non-odor-proof container, a misdemeanor under Illinois law.

It's illegal to steal a cheeseburger. Would smelling a cheeseburger be probable cause for a search because the cheeseburger could hhave been stolen?

[Noscitur a sociis]

According to the opinion, it’s illegal to transport marijuana in a vehicle except in sealed container that captures the odor. So why wouldn’t smelling marijuana from suggest that that law is being violated?

[David Nieporent]

Of course, a better question is why we would believe any cop who claimed to smell marijuana…

[TwelveInchPianist]

"a book may not be removed for the sole—or a substantial—reason that the decisionmaker does not wish patrons to be able to access the book's viewpoint or message."

No removing books because the author made a mistake and published incorrect information? That seems a stretch.

[Nige]

Is 'incorrect information' the same as a 'viewpoint or message?' Or have the two just become synonymous on the right?

Most, but far from all, library books are stocked because they are popular, by popular authors or just turning up on the bestseller lists. They're the books most people want to read. Some of the nonsense in the non-fiction section is astonishing. Angels, homeopathy, the one about how if you want something hard enough it'll just turn up. Now there's information so bad and wrong it's dangerous, like labelling dangerous mushrooms as safe and encouraging the creation of cleaning chemicals using mixtures that create deadly gasses, so librarians on the whole will probably not stock AI generated books.

Librarians are hired to *be discriminating* while at the same time knowing which books people want to read. It's ther job.

[TwelveInchPianist]

“ Is ‘incorrect information’ the same as a ‘viewpoint or message?’ Or have the two just become synonymous on the right?”

An incorrect message is still a message is still a message, and whether or not a message is correct is a viewpoint. I get that the left likes to tell themselves that they’re not censoring viewpoints or messages, but misinformation.

[Nige]

That's a yes.

[TwelveInchPianist]

Sigh. "Incorrect information" is a subset of "viewpoint or message". Not all viewpoints and messages are incorrect.

Most of yours are though.

[Nige]

Good God, no it isn't, there's just a lot of overlap, or in the case of Trumpism, a perfect circle.

[tkamenick]

4 - I had something similar come up in a case awhile ago. Sued state government official. Said official removed the case to federal court and then tried to claim immunity from being sued in federal court. Judge was not amused.

8 - They want Walmart to lock up toy guns...

10 - I have no idea what "tropically nonexistent" means or what they're really trying to say and the links aren't helpful. Help?

[David Nieporent]

Well, Antigua is in the tropics, so I'm guessing there's some sort of attempted pun there, but I'm not getting it either.

[Noscitur a sociis]

The actual typeface is Book Antiqua. Book Antigua is both nonexistent (because that’s not the right name) and tropical (because Antigua is a tropical island).

[David Nieporent]

Ah. Thanks. Not a font nerd, so I overlooked that one. (If I were a font nerd, I'd have used "typeface" rather than "font.")

[John F. Carr]

In the Texas case in the afterword, does it matter if the lawyer lied to the judge?

11. In the Illinois case, it seems local politicians learned from Massachusetts. When Massachusetts decriminalized marijuana the state Supreme Court ruled that odor was no longer cause for a search. Not if the police officer testifies to a strong odor of marijuana, not if the police officer testifies to an odor of unburnt marijuana, and not if the police officer testifies to an odor of burnt marijuana. So if Illinois politicians wanted police to keep up their search rate they needed to make the odor of marijuana itself a crime.