The Supreme Court Hasn't Resolved Whether Libraries May Remove Books Based on Viewpoint

The Fifth Circuit decision holding that libraries may remove books based on the books' viewpoint may lead some to ask: Hasn't the Court resolved this before, in Bd. of Ed. v. Pico (1982)?

[1.] It turns out that it hasn't. Four Justices (led by Justice Brennan) took the view that "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books." Four other Justices (led by Chief Justice Burger) expressly rejected this view (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans). And the swing vote, Justice White, expressly refused to opine on this issue:

The plurality … issue[s] a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point….

[This case] poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here.

Justice White concurred with Justice Brennan's opinion solely as to the propriety of remanding for a trial on whether the school board removed the books based on viewpoint or instead based on their being "in essence, vulgar" (which even the challengers "implicitly conceded" would be a permissible basis for removing the books, at least if they "were pervasively vulgar"). But he disagreed with Justice Brennan on the consequence of any such finding:

• Justice Brennan's view was that, if there was a finding that the removals were based on viewpoint, that would mean the removals violated the First Amendment.
• Justice White's view as that, if there was such a finding, "there will be time enough to address the First Amendment issues that may then be presented" (which echoes his conclusion that he saw "no necessity for" resolving those questions in his opinion).

So, as a Fifth Circuit en banc held in 1982, "the Supreme Court [in Pico] decided neither the extent nor, indeed, the existence vel non [i.e., existence or not], of First Amendment implications in a school book removal case.").

[2.] The dissent in today's Fifth Circuit en banc Little v. Llano County decision disagrees, treating "the Supreme Court's judgment in Pico" as forbidding such viewpoint-based removals. But on this, I think the dissent erred.

The dissent reasoned that Justice White did provide a fifth vote in favor of presumptively forbidding viewpoint-based removals:

But the majority is wrong to suggest that Justice White's opinion "said nothing about the First Amendment." On the contrary, Justice White's opinion confirms the same conclusion about the threshold First Amendment inquiry as the Pico plurality, whose judgment Justice White joined: that determining a state's motivation is necessarily anterior to assessing whether a book removal violates the First Amendment. Pico (White, J., concurring in the judgment) (expressing a preference for "findings of fact and conclusions of law … made by the District Court" on the "unresolved factual issue" of "the reason or reasons underlying the school board's removal of the books" prior to conclusively deciding the First Amendment issues).

Unlike the plurality, Justice White chose not to expound on what motivation would withstand First Amendment scrutiny until after the district court had conducted this fact-intensive motivation analysis at trial. But he agreed with the plurality, affirming the Second Circuit, that the motivation inquiry presented an issue of fact that was material to the constitutional analysis, precluding summary judgment. That is the common denominator between the plurality opinion and Justice White's concurrence and, therefore, it is Pico's binding precedent.

I don't think this correctly analyzes Justice White's concurrence. Justice White stressed that there was an "unresolved factual issue" in the findings below as to "the reason or reasons underlying the school board's removal of the books." If the reason was that the books were seen as "vulgar" and thus not age-appropriate because of their vulgarity, then the issue would go away, and avoid the need for the Court to consider the matter. He then faulted the plurality for offering a First Amendment analysis:

The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case. If, for example, the District Court concludes after a trial that the books were removed for their vulgarity, there may be no appeal. In any event, if there is an appeal, if there is dissatisfaction with the subsequent Court of Appeals' judgment, and if certiorari is sought and granted, there will be time enough to address the First Amendment issues that may then be presented.

That's a decision not to decide the First Amendment question, but rather to let the case develop further to possibly make it unnecessary for the Supreme Court to render a decision, and in any event to make the case more concrete if the Court did have to render a decision. He then adds:

I thus prefer the course taken by the Court in [a 1948 case] involving overtime compensation under the Fair Labor Standards Act. Summary judgment had been granted by the District Court and affirmed by the Court of Appeals. This Court reversed, holding that summary judgment was improvidently granted, and remanded for trial so that a proper record could be made. The Court expressly abjured issuing its advice on the legal issues involved. Writing for the Court, Justice Jackson stated:

"We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts. While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.

"Without intimating any conclusion on the merits, we vacate the judgments below and remand the case to the District Court for reconsideration and amplification of the record in the light of this opinion and of present contentions."

Seems pretty clear that Justice White's vote here, too, is to "expressly abjure[] issuing its advice on the legal issues involved," to "withhold decision of the ultimate questions," and to not "intimat[e] any conclusion on the merits." Justice White then goes on:

We took a similar course in a [1967 case]. There we overturned a summary judgment since it was necessary to resolve a factual dispute about collaboration between one of the respondents and a state legislative committee. We remanded, saying: "In the absence of the factual refinement which can occur only as a result of trial, we need not and, indeed, could not express judgment as to the legal consequences of such collaboration, if it occurred." …

[W]e [should] take a similar course … in this [case], which poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here. I therefore concur in the judgment of affirmance.

Again, it seems clear that Justice White's vote in Pico was "not [to] decide" these "difficult First Amendment issues." It follows that the Little dissent erred in ascribing to Justice White a decision he didn't make.

The dissent also makes another argument about Pico:

Finally, even if we were to follow the majority's approach and ignore the substance of Justice White's concurring opinion (which we plainly should not), a majority of the Supreme Court in Pico firmly rejected the abnegation of the First Amendment that our court adopts today. Four concurring Justices [led by Justice Brennan] made explicit that a library's "discretion may not be exercised in a narrowly partisan or political manner" because "[o]ur Constitution does not permit the official suppression of ideas." Crucially, three dissenting Justices—led by then-Justice Rehnquist, who was joined by Chief Justice Burger and Justice Powell—"cheerfully concede[d]" the same. And, as noted, Justice Blackmun took pains to highlight Justice Rehnquist's "cheerful[] conce[ssion]." Our court today not only reaches a result directly contrary to Pico, but also casts aside the reasoning of a supermajority of the Court in the process.

But this, I think, misreads Justice Rehnquist's dissent. Here's the passage from Justice Brennan's opinion to which Justice Rehnquist was responding:

Petitioners rightly possess significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner. If a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students …. The same conclusion would surely apply if an all-white school board, motivated by racial animus, decided to remove all books authored by blacks or advocating racial equality and integration. Our Constitution does not permit the official suppression of ideas.

Justice Rehnquist's response was:

I can cheerfully concede all of this, but as in so many other cases the extreme examples are seldom the ones that arise in the real world of constitutional litigation. In this case the facts taken most favorably to [the challengers] suggest that nothing of this sort happened. The nine books removed undoubtedly did contain "ideas," but … it is apparent that eight of them contained demonstrable amounts of vulgarity and profanity, and the ninth contained nothing that could be considered partisan or political. As already demonstrated, respondents admitted as much. Petitioners did not, for the reasons stated hereafter, run afoul of the First and Fourteenth Amendments by removing these particular books from the library in the manner in which they did. I would save for another day—feeling quite confident that that day will not arrive—the extreme examples posed in Justice Brennan's opinion.

Justice Rehnquist does seem to be endorsing a view that outright partisan discrimination (against, say, pro-Republican or pro-Democrat books) or actions "motivated by racial animus" may be unconstitutional, perhaps because of principles related to the Equal Protection Clause or to equal treatment of political parties (see pp. 191-92 of Will Baude's and my Compelled Subsidies and the First Amendment article for more on that). But Justice Rehnquist is "cheerfully conced[ing]" Justice Brennan's bottom line analysis only as to such "extreme examples," which he thinks are far removed from the facts of the actual case in Pico (and of normal library book removal decisions).

Justice Rehnquist is not endorsing any broader prohibition on viewpoint discrimination—and we know that because elsewhere in his opinion, he made clear that he thinks school authorities are indeed free to reject books based on the views they express (e.g., when the books "were anti-American" or "were offensive to racial, religious or ethnic groups"). Indeed, Justice Rehnquist's opinion expressly rejected any First Amendment "right to receive information" in a school library, which is the premise of Justice Brennan's opinion (and of the Little dissent): "The right described by Justice Brennan has never been recognized in the decisions of this Court and is not supported by their rationale."

[4.] To be sure, the First Amendment analysis may well be different for non-school public libraries than for public school libraries. One could argue, for instance, that school libraries' collections are indeed supplements to the school curriculum, which is government speech, but that in non-school public libraries such a curriculum focus is absent. But there too the Court hasn't resolved the issue. (The Court's one non-school library case, U.S. v. American Library Ass'n, Inc. (2003), didn't yield a majority opinion on the subject, either, and focused on details that keep the opinions from being directly applicable to most current removal questions.) My point here is simply that there is no Supreme Court precedent binding lower courts on these questions.