The Volokh Conspiracy
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The Fifth Circuit on Library Selection and Removal Decisions and First Amendment Rights of Listeners
The primary argument supporting a claimed First Amendment prohibition on public libraries' excluding books based on viewpoint was the First Amendment right of listeners. The majority in today's Little v. Llano County en banc decision held that this right doesn't give people an entitlement to have the government provide the materials in the library:
We hold that plaintiffs cannot invoke the right to receive information to challenge the library's removal of the challenged books.
First, plaintiffs would stretch the right far beyond its roots. As discussed, the [Supreme Court's right-to-receive-information precedents] teach that people have some right to receive information from others without government interference.
It is one thing to tell the government it cannot stop you from receiving a book. The First Amendment protects your right to do that. It is another thing for you to tell the government which books it must keep in the library. The First Amendment does not give you the right to demand that.
Second, if people can challenge which books libraries remove, they can challenge which books libraries buy. "[A] library just as surely denies a patron's right to 'receive information' by not purchasing a book in the first place as it does by pulling an existing book off the shelves." For good reason, no one in this litigation has ever defended that position.
Suppose a patron complains that the library does not have a book she wants. The library refuses to buy it, so she sues. Her argument writes itself: "[I]f the First Amendment commands that certain books cannot be removed, does it not equally require that the same books be acquired?" She would be right. This means patrons could tell libraries not only which books to keep but also which to purchase. Could they also sue the county to increase its library fund?
In a footnote, plaintiffs try to distinguish book removals from purchases. They say libraries have "a wider variety of legitimate considerations" for not buying books, such as "cost," and they assert unbought books will "vastly outnumber" removed books.
So what? Plaintiffs can just as easily probe a library's "considerations" for not buying a book as for removing one. Did the library lack funds, or did the librarian dislike the book's views? That's what discovery is for. And it is no answer to say that a failure-to-buy case will be harder to prove than a removal case. Maybe, maybe not. The point is that, once courts arm plaintiffs with a right to contest book removals, there is no logical reason why they cannot contest purchases too.
Third, how would judges decide whether removing a book is verboten? What standard applies? The district court asked whether the library was "substantially motivated" to "deny library users access to ideas" by engaging in "viewpoint or content discrimination." The panel clarified that libraries could remove books that are "[in]accura[te]," "pervasively vulgar," or "educational[ly] [un]suitabl[e]." On en banc, plaintiffs argued the standard was "no viewpoint discrimination." Applying such tests to library book removals would tie courts in endless knots.
Consider one of the challenged books: It's Perfectly Normal, a book for "age 10 and up" that features cartoons of people having sex and masturbating. If the library removed the book because of the pictures, as plaintiffs claim, did it violate the First Amendment? Surely the library wanted to "deny access" to the book's "ideas." So, yes. And surely the library "discriminated" against the book's "content." So, yes again. But the library also deemed the book "educationally unsuitable" for 10-year-olds. So, no. And it likely found the book "vulgar," but perhaps not "pervasively." So, maybe. No surprise, then, that the panel majority split over whether removing It's Perfectly Normal was permitted.
Or consider a hypothetical that came up at oral argument. A library discovers on its shelves a racist book by a former Klansman. See, e.g., David Duke, Jewish Supremacism: My Awakening on the Jewish Question (2003). Can it be removed? If the library deems the book "inaccurate" or "educationally unsuitable," yes. But if the library dislikes its content or viewpoint, no. The problem is obvious: deeming a book "inaccurate" or "unsuitable" is often the same thing as disliking its "content" and "viewpoint." Judges might as well flip a coin.
It is worth noting plaintiffs' view on this question. Incredibly, they maintain the First Amendment forbids removing even racist books. They defended that position before the panel: a librarian, they insisted, cannot remove "a book by a former Grand Wizard of the Ku Klux Klan" if she dislikes its view that "black people are an inferior race." At en banc, they doubled down. Astonishing. Who knew that the First Amendment requires libraries to shelve the collected works of the Ku Klux Klan? {Notably, the dissent declines to say whether its own rule would forbid a library's removing a racist book. But the answer seems clear. If the First Amendment prohibits a public library from removing a book because of its "inappropriate, offensive, or … undesirable" content, then the library could not constitutionally remove from its shelves even the most noxious racist screed. That is reason enough to reject the dissent's proposed rule.}
That is, of course, utter nonsense. "[I]f a library had to keep just any book in circulation—no matter how out-of-date, inaccurate, biased, vulgar, lurid, or silly," then "[i]t would be a warehouse, not a library." That is confirmed, not only by common sense, but also by the practices of leading library associations.
For example, a Texas weeding manual instructs librarians to weed "books that contain stereotyping … or gender and racial biases," "unbalanced and inflammatory items [about immigration]," and "books that reflect outdated ideas about gender roles." Similarly, the American Library Association (ALA) advises librarians to remove "items reflecting stereotypes or outdated thinking; items that do not reflect diversity or inclusion; [and] items that promote cultural misrepresentation." The same handbook proclaims it is "basic collection maintenance" to remove racist books, such as "the Dr. Seuss books that are purposefully no longer published due to their racist content." {Surprisingly, the ALA joined an amici brief that contradicts its own weeding advice. See Brief for Amici Curiae Freedom to Read Found. (arguing that weeding is based on "viewpoint neutrality," is "not the targeted removal of disfavored or controversial books," and "should not be used as a deselection tool for controversial materials").}
Whatever else one might think of the advice in these guides, it is unmistakably viewpoint discrimination. And, by plaintiffs' account, all of it violates the First Amendment. That cannot be the law. By definition, libraries must have discretion to keep certain ideas—certain viewpoints—off the shelves. "The First Amendment does not force public libraries to have a Flat Earth Section."
Finally, by removing a book, the library does not prevent anyone from "receiving" the information in it. The library does not own every copy. You could buy the book online or from a bookstore. You could borrow it from a friend. You could look for it at another library.The only thing disappointed patrons are kept from "receiving" is a book of their choice at taxpayer expense. That is not a right guaranteed by the First Amendment.
The majority also had this to say about a claimed viewpoint-neutrality requirement:
Racism is a viewpoint. So is sexism. So are "quackeries like phrenology, spontaneous generation, tobacco-smoke enemas, Holocaust denial, [and] the theory that the Apollo 11 moon landing was faked." If a librarian finds such dreck on the shelves, does the First Amendment bar him from removing it?
The dissent held that listeners' rights did indeed prohibit viewpoint-based book removals:
[T]he right asserted by Plaintiffs here … is not an affirmative right to demand access to particular materials. Rather, consistent with the First Amendment's text and longstanding Supreme Court doctrine, Plaintiffs assert a negative right against government censorship that is targeted at denying them access to disfavored, even outcast, information and ideas.
The First Amendment does not require Llano County either to buy and shelve They Called Themselves the K.K.K., or to keep They Called Themselves the K.K.K. in its collection in perpetuity; but it does prohibit Llano County from removing They Called Themselves the K.K.K., or books with similar ideas and information, because it seeks to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." …
As a public library, rather than a school library, the Llano County library system serves patrons of all ages. Today, a majority of our court sanctions government censorship in every section of every public library in our circuit. As counsel for Defendants acknowledged in oral argument, there is nothing to stop government officials from removing from a public library every book referencing women's suffrage, our country's civil rights triumphs, the benefits of firearms ownership, the dangers of communism, or, indeed, the protections of the First Amendment….
The majority—apparently "amuse[d]" by expressions of concern regarding government censorship—disparages such concerns as "over- caffeinated" because, if a library patron cannot find a particular book in their local public library, they can simply buy it.
This response is both disturbingly flippant and legally unsound.
First, as should be obvious, libraries provide critical access to books and other materials for many Americans who cannot afford to buy every book that draws their interest, and recent history demonstrates that public libraries easily become the sites of frightful government censorship.
More significantly, the flippancy mischaracterizes the text and promise of the First Amendment. The First Amendment question presented by Plaintiffs' allegations … is not whether a library has an affirmative obligation to add a particular book to its collection whenever a patron wants it. Plaintiffs "have not sought to compel [Defendants] to add to the [public] library shelves any books that [patrons] desire to read." That is a red herring dragged throughout the majority opinion.
{Regardless, book acquisitions demand different considerations than book removals. As Justice Blackmun remarked in Pico:
[T]here is a profound practical and evidentiary distinction between the two actions: "removal, more than failure to acquire, is likely to suggest that an impermissible political motivation may be present. There are many reasons why a book is not acquired, the most obvious being limited resources, but there are few legitimate reasons why a book, once acquired, should be removed from a library not filled to capacity."
Justice Souter offered similar sentiments in another case: "Quite simply, we can smell a rat … when a library removes books from its shelves for reasons having nothing to do with wear and tear, obsolescence, or lack of demand…. The difference between choices to keep out and choices to throw out is [] enormous, a perception that underlay the good sense of the plurality's conclusion in [Pico]." And the two situations are distinct: book removal necessarily follows book acquisition, such that any book that is removed has passed the library's initial purchase assessment and expenditure.}
The relevant question is a more sobering one, implicating the very text of the First Amendment's protection against the abridgment of free speech: whether government officials may restrict—abridge—the spectrum of ideas available to the public by culling books from public library shelves, simply because those officials find the books' ideas inappropriate, offensive, or otherwise undesirable. The answer is: "No." The government may not order books removed from public libraries out of hostility to disfavored ideas and information….
Public libraries importantly serve patrons of all ages, and they have broad latitude to provide safe spaces for parents to encourage a love of learning in their children, while respecting each parent's prerogative to guide their own child's public library reading and, at the same time, without encroaching on every other patron's First Amendment rights. To repeat what is fundamental, Director Milum confirmed that "no parent has the authority in a library system to control what somebody else's children read."
Indeed, public libraries of course are free to organize their books in a manner that ensures patrons are directed to age-appropriate materials. Many, if not all, public libraries already do this by maintaining distinct sections for children and for young adults, while the remainder of the library is geared toward adults. Furthermore, the New Orleans Public Library, for example, provides parents and guardians with additional oversight by allowing them to adjust check-out permissions for their children. Parents can and should review what their children read and make decisions regarding what public library materials are appropriate for their children.
But that is each parent's prerogative for their own children. These decisions cannot be dictated by government officials, any more than they can be dictated by other parents, based on their own distaste for ideas they deem "inappropriate." Certainly, government officials cannot constitutionally dictate what ideas are "inappropriate" or "offensive" for adult library patrons. Yet this is precisely the government censorship that our court approves today.
