Judge James Ho's Concurrence in the Fifth Circuit Library Decision: Positive Rights vs. Negative Rights

An excerpt from Judge Ho's concurrence in the Little v. Llano County en banc decision (he also joined the majority opinion as to listener interests and the seven-judge decision as to library curation decisions being government speech):

The Constitution protects "the freedom of speech." That freedom ensures that citizens are free to speak—not that we may force others to respond. It's the First Amendment, not FOIA.

So "[t]here is … no basis for the claim that the First Amendment compels others—private persons or government—to supply information." The Supreme Court "has never intimated a First Amendment guarantee of a right of access to all sources of information within government control." "The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government."

Our Founders enacted a charter of negative liberties. "[L]iberty in the eighteenth century was thought of much more in relation to 'negative liberty'; that is, freedom from, not freedom to." …

The fundamental distinction between negative and positive rights is essential to a proper understanding of the First Amendment.

Consider how the law treats public museums. It's well understood that you have no First Amendment claim just because a public museum won't feature the art or exhibit you wish to view. That's because, as today's en banc majority opinion explains, when a government funds and operates a museum, it necessarily acts as a curator for the public's benefit—and there is no First Amendment claim when the government is curating, not regulating.

So a public museum "may decide to display busts of Union Army generals of the Civil War, or the curator may decide to exhibit only busts of Confederate generals. The First Amendment has nothing to do with such choices." PETA v. Gittens (D.C. Cir. 2005). See also, e.g., Pulphus v. Ayers (D.D.C. 2017) (rejecting First Amendment claim by an artist challenging the removal of his painting from a Congressional art competition); Raven v. Sajet (D.D.C. 2018) (rejecting First Amendment claim to require display of a portrait of the then-President-Elect at the National Portrait Gallery).

That should end this case, because I see no principled First Amendment distinction between public museums and public libraries.

And neither do Plaintiffs. During oral argument, counsel for Plaintiffs was given repeated opportunities to draw a distinction between public museums and public libraries for purposes of First Amendment analysis. They repeatedly declined to do so. They didn't, because they can't….

The dissent appears to accept that the freedom of speech embodies negative, not positive, rights. The dissent focuses instead on a different distinction. It theorizes that the First Amendment does not require a public library to buy certain books—but it does forbid a public library from removing them, having already bought them. As the dissent puts it, it's "not an affirmative right to demand access to particular materials," but rather "a negative right against government censorship." So "[t]he First Amendment does not require Llano County either to buy and shelve … or to keep [certain books]; but it does prohibit Llano County from removing [them]."

But I confess that I have trouble locating in the First Amendment a distinction between refusing to purchase certain books (which the dissent would allow) and removing them (which the dissent would condemn).

Consider how we would treat the proposed distinction in other constitutional contexts. Does the Fourteenth Amendment allow a government agency to refuse to hire people based on their race—just so long as they don't fire people based on their race? Does the Free Exercise Clause permit a public park to exclude all Christians from entry—it just can't kick them out once they've been let in? Obviously not. No one would draw those distinctions. And the same logic should apply here. If viewpoint discrimination is forbidden, then viewpoint discrimination is forbidden.

So it's not surprising that Plaintiffs appear to concede that they would forbid public libraries from refusing to purchase as well as remove certain books.

I also wonder about the workability of the proposed distinction. Imagine that someone donates their book collection to a local library upon their death. But it turns out that the collection contains some of the material at issue in this case. So the library declines to accept those particular items. Is that refusing to purchase (and therefore permitted)? Or is that removing (and therefore forbidden)? Suppose the entire book collection has already been boxed up, so the estate administrator tells the librarian to either take the entire collection or refuse it whole. So the librarian can't accept custody of certain books while declining others—it can only remove those books after accepting them. Does that make a difference? Why should it?

It seems more principled to me to conclude that the First Amendment permits all of this, because like public museums, public libraries have to make decisions about which materials to include in, and exclude from, their collections. I'm sure we could all find ways to quibble with how a particular library or museum curates their collections. But curators are not regulators. And I have difficulty determining which curating decisions are subject to scrutiny, and which are exempt, consistent with the text and original understanding of the First Amendment….

Plaintiffs have a First Amendment right to read books. They don't have a First Amendment right to force a public library to provide them….

Comments

[SRG2]

Goes to show that Ho' is not always wrong.

[Stephen Lathrop]

Ho is wrong in this instance. He argues that public expenditures support public museums and public libraries, so they should be governed alike. Ho does not show they function alike.

Also, public expenditures support the maintenance of the public square. That occasions notably greater expense for the state than either public museums, or public libraries.

Government has no proper power to single out particular expressive content, and ban it from the public square. If it did, and if Ho's argument were correct, then blue states would be empowered to ban books from public libraries, if those books advocate for government disfavored gun liberties. Decide this case the way Ho advocates, and some blue states will do that, for a reason anti-library advocates on this forum assert is proper—because majorities want that to happen.

Advocacy to expand protection against government interference is advocacy to expand and protect expressive liberty; advocacy to authorize Ho's kind of interference is advocacy to constrain and diminish expressive liberty. The former is better than the latter.

[Speaking for normal people]

Then you need to revise your view of Isidore of Seville school

ARGUMENT................................................................ 4
I. THE OKLAHOMA SUPREME COURT’S
MISGUIDED STATE-ACTION
ANALYSIS SWEEPS IN A LOT OF
PRIVATE CONDUCT....................................... 4
A. Private entities regularly help states
fulfill important onligations ........................ 6
B. A vast array of private conduct
receives government funding. ..................... 9
C. Labeling private conduct “public” does
not transform it into state action.............. 13
II. THE OKLAHOMA SUPREME COURT’S
RULING POSES SPECIAL THREATS
TO FAITH-BASED CHARITIES THAT
PROVIDE CRITICAL PUBLIC
SERVICES ...................................................... 14
III.THE OKLAHOMA SUPREME COURT’S
RULING UNDERMINES THIS COURT’S
RECENT JURISPRUDENCE ON THE
FREE EXERCISE CLAUSE........................... 19

[ReaderY]

What as you see it is the legally relevant difference between museums and libraries? Museums involve a curated collection of artifacts. Isn’t that what libraries are in essence? Why aren’t libraries simply a specialized kind of museum?

There are a number of differences that don’t strike me as legally relevant. For example, a museum could potentially let patrons borrow art objects to display them in their homes temporarily and it would still be a museum, while a library could choose to prohibit patrons from removing books from the premises and it would still be a library. Indeed many libraries have rare book and other special collections that can’t be checked out.

I don’t see why museums don’t also “support the public square.” And the expense of one kind of specialized collection versus another doesn’t strike me as legally relevant.

[Stephen Lathrop]

ReaderY — Ho's advocacy is against curation, and in favor of expertise-free majoritarian outcomes. My comment was an implied challenge to Ho, made with an eye to encourage readers to consider a more-accurate comparison instead.

You have done so. Like public library collections, we expect public museum collections to be usefully improved by expert curation. We do not expect them to be usefully improved by majoritarian decrees from the general public.

Please note, we need not argue these questions too closely. The choice is self-evident, and stark. This nation can call itself a defender of expressive liberty if it encourages alike majoritarian, minoritarian, and outright-peculiar expressions. Not otherwise.

To accomplish that under the aegis of majoritarian governments requires expert curation, trained to act against the grain of public preference. It takes planning and expertise to do that successfully within unavoidable fiscal limits. Expert curation lacking, the inevitable result will be purely majoritarian collections, and expressive liberty impoverished and constrained, state-by-state.

For those who advocate as Judge Ho does, there is no point to pretend the objective is anything except a notable reduction of expressive liberty. They intend state-by-state government-enforced bans on particular ideas, such as pro-abortion advocacy, pro-gay advocacy, pro disability advocacy, pro-diversity advocacy, and civil equality for blacks. Behind those, but inevitably also in store, will come demands in favor of various other flavors of political orthodoxy.

The library bans are merely part of that broader objective. It can already be seen in process, actively being pursued by other means within the Trump administration. It is right now targeting by lawless decrees, and by legal harassment, educational institutions public and private.

One final point, in response to those who insist library point-of-view discrimination does not implicate outright bans across society. For many books and periodicals, publishers gauge closely the potential for library sales. With a great many publications—especially those featuring high per-copy costs, esoteric contents, and limited general public sales expectations—the library market expectation becomes a make-or-break component of a decision to publish at all. Permit majoritarian bans at public libraries, and many, many books and periodicals will not get published. That result will not be distinguishable from banning those books and periodicals outright. Some specialized publishers will go out of business. The nation's university presses will be notably damaged, and become less prolific.

[wvattorney13]

"They intend state-by-state government-enforced bans on particular ideas, such as pro-abortion advocacy, pro-gay advocacy, pro disability advocacy, pro-diversity advocacy, and civil equality for blacks."

What state, pray tell is trying to forbid you from advocating for any of those things? You can be as pro abortion as you want. This is silly.

"Permit majoritarian bans at public libraries, and many, many books and periodicals will not get published. "

That's called the free market. You think we should force communities to buy publications that they don't want so that there is a market for them to get published. Let me know more of this bizarre idea.

[Stephen Lathrop]

wvattorney13 — The free market goes unmentioned in the U.S. Constitution, nor is it implied. On the contrary, the essence of American constitutionalism is concise, consisting of a power in the jointly sovereign American people to make and remake governments at pleasure, by any means they can manage, without constraint, even by their own previously ratified Constitution.

I leave you to work out for yourself the implications of that for your advocacy. But you will be mistaken if you suppose the free market in any way empowers government to bludgeon any individual citizens out of their Constitutionally protected expressive liberties.

[mike petrik]

Except the notion that public libraries must curate their collections to any particular person’s ideological satisfaction is not a constitutionally protected liberty, no matter how much you might perversely wish it to be.

[mike petrik]

Lathrop — Ho is right. The constitution contemplates an indirect democracy, not a technocracy. In other words, government by representatives of the majority, not by highly-credentialed experts. There are bill of rights curbs to be sure, but the 1A simply does not require public libraries to be public squares. Your tortuous interpretation is a function of your preference for authoritarian rule by technocrats. It is as dangerous as it is wrong.
Curation is inescapable. No library can have every book. You simply want the curation practiced by credentialed experts rather than the voters who fund the process. The 1A may not prohibit that, but it certainly does not require that.

[Factsarerelevant]

The thing that often makes me doubt the sincerity of those seeking to remove books is that they tend to lump in books which have no relation to their stated purpose. Here, as in many similar cases, the original claim of the proponents of removal was that they are targeting books which are offensive and/or harmful to young readers. If this is true, why do they seemingly also always target historical books that touch on/make reference to slavery, and especially those that are critical of it, and books, regardless of the subject matter, by black authors.
For instance, in this case, one of the books that was targeted for removal was a book that was examined the roots of KKK and covered the brutal tactics used by the organization. This book simply used historical accounts to examine the origin and tactics used by the KKK. As such, it's hard see how a book such as this is in any harmful or immoral. There have also been instances where books discussing the Holocaust were targeted for removal. Again, if your stated aim is to protect young readers, how is a book such as this judged to be "harmful".
The fact that books such as these have been commonly targeted for removal makes me highly suspicious of the true motivations of this book ban movement.

[I quit Reason in about 4 weeks]

Okay but going to motivation is against the Constitution. A thing is allowable or not , without your being able to look into a man's inner volition. If I am against abortion and you counter that "I don't accept that because you are a Catholic, so it is a religious objection" -- you are wrong, not me

[ReaderY]

Because their concept of what is harmful is different from yours. You may of course disagree with their view and you may think their focus ought to be broader. But there’s nothing hypocritical about having a different or even a narrower view than you do.

Differences in peoples’ values, like other differences in peoples’ premises, can rarely be addressed successfully by the use of logic.

[mike petrik]

Yes, and these questions can be resolved only through a political process relying on arguments on the merits grounded in prudence and reason, albeit imperfect, not a legal process relying on abstract principles tethered to the 1A only via rhetoric.

[ReaderY]

That said, does the book on the KKK you use as an example promote KKK values? Does it describe KKK people as heros that children should look up to?

There were and still are many books by KKK sympathetizers that do exactly this. But I doubt you’ll find them in children’s libraries the way you would have half a century or more ago. They’ve all been removed.

Consider, as example, the Ku Klux Klan trilogy by Thomas Dixon or the book The Klansmen: Guardians of Liberty by Alma White. Dixon’s books in particular have young heros and were written with appeal to youth in mind. But can you name a public children’s or school library that has any of these once-popular books? And are you objecting to their absence?

[wvattorney13]

Agreed. And if the Plaintiffs had won the case wouldn't every library in the country be required to carry these or similar books so as not to discriminate based on viewpoint? If they have anti-KKK material, they must have pro-KKK material, right?

Or is this limited only to the Overton's window of "proper" or "mainstream" political discourse? We could probably plainly keep out pedastry, bestiality, incest and those types of books, but what else? Who decides what is in that window?

Also, could a library opt out of a debate? Could they get away with not carrying pro-KKK material so long as they studiously keep out all anti-KKK material? Is a compendium of state laws, one of which forbids cross burning, considered anti-KKK material? Is a positive view of interracial marriage anti-KKK material?

The plaintiffs would have federal judges be library committees for every small town in the U.S.

[Stephen Lathrop]

ReaderY — Logic? Values? Premises? Harm? Hypocrisy? What have any of those got to do with a supposed government power to constrain expressive liberty, which is my subject.

[mike petrik]

Oh, no question the motivations are often disreputable and therefore disguised, but I just don’t see how they implicate the 1A. Both blues and reds will curate their libraries in ways that suppress the views they disfavor and frequently dress up their motivations with transparently foolish high-mindedness. The recourse is political leveled by 1A criticism and even ridicule. But expecting judges to make such decisions is both ridiculously unworkable and untethered to the 1A.

[mike petrik]

This is so obvious the contrary arguments are bewildering.

[Lee Moore]

To be fair the conflation of “positive liberty” with “ negative liberty” - ie badging the robbing of Peter to pay Paul as “liberty”, has been a core component of lefty sophistry for well over a century. Why do you think people who favor enormous government call themselves “liberals” ?

Liberty is good and popular so the lefties want to own it rhetorically, even though they ferociously object to it.

[Malika the Maiz]

Sophistry? Didn’t Mill eventually cross that line?

[Lee Moore]

In Mill's case, I think he ran into the problem of all philosophers who seek to expound a general theory. In the end there are holes, and the philosopher feels the need to plug them. And rather than abandon his beloved general theory, he plugs them with sophistry.

[Malika the Maiz]

Or maybe these questions are really tough and simplistic either or distinctions are bound to run into a black swan (or two or three…)?

https://plato.stanford.edu/entries/liberty-positive-negative/

[Speaking for normal people]

Plato would not agree and if you look at the utterly opposed modern takes on The Republic
John Wild (totally pro) and Karl Popper (totally con) you will see the foolishness of this view

Both do take an either/or. Don't confuse principles with application of principles (which I am sure you do)

[Speaking for normal people]

Mill's Problem
''the chief mark and element of insanity ... is reason used without root, reason in the void. The man who begins to think without the proper first principles goes mad .... "

[Dr. Ed 2]

Remember that another definition of the word "liberal" is generous, ample, and plentiful -- e.g. I tend to liberally apply brown sugar when baking a ham, usually putting an entire 2 lb bag on a 4 lb ham.

[Dr. Ed 2]

This is the opposite of the way that Judge Cyr ruled on 365 days back in 1982 --

https://law.justia.com/cases/federal/district-courts/FSupp/530/679/1369994/

https://www.edweek.org/education/federal-court-overturns-ban-of-365-days-in-maiine-school/1982/02

[Dr. Ed 2]

The book liberally used the word "Fire trUCK" liberally, and this was in the same general "Bible Belt" area as the Rev Dumphy.

https://www.nytimes.com/1985/07/25/us/baptist-pastor-s-actions-split-maine-community.html

[thesafesurfer]

What lucid and informative article.

[Kleppe]

This is so obviously correct it's bewildering it had to be written. And then I realize that supposedly educated people affirmativelt believe the opposite.

[Lee Moore]

“One has to belong to the intelligentsia to believe things like that - no ordinary man could be such a fool.”

[JonFrum]

Agreed. The proper response should have been to go to the city or town government over the head of the library director. If no satisfaction is found there, vote against the politicians involved. Or run against them. As much trouble as I have with some libraries today, this lawsuit was a non-starter to me. This is what local politics is for.

[Dr. Ed 2]

The question I have is what if the librarian said "No Jews" -- i.e. no books by Jewish authors. Wouldn't that raise a 14th Amendment issue that individual choices wouldn't?

[wvattorney13]

I think it probably would raise an Equal Protection argument, but it would not, IMHO, implicate any 1A right to receive information from Jewish authors or a 1A right of Jewish authors to be in the library.

[Speaking for normal people]

NO, attorney, it would start a huge lawyer-fest to define who is legally Jewish. Like 'who is Black' in Plessy v Ferguson.
Plessy was as white as snow

The 1896 Supreme Court Plessy Ruling created Segretation for 1/32nd African Decent
https://www.youtube.com/watch?v=1LO93u6byBI

[Speaking for normal people]

But that is a rebuttal of a present problem with a contrafactual, a hypothetical. Kagan and Sotomayor disgracefully did that in the case about parents absenting their kids from a a course with disgusting homosexual literature. K and S say "Yeah, parents are right" but then act like you "but what if they take their kids out of Chemistry or Algebra class"
Stand up for what is right and THEN do the legal techno bullshit.

[TwelveInchPianist]

Is anyone claiming that there is a positive right to receive information?

From what I can tell the argument is that using viewpoint based criteria to remove books violates listeners' negative rights. I don't by it, but that appears to be the argument.

[mike petrik]

The right to listen has some currency if we are talking about a law prohibiting a person from reading or listening to something, but there is no right to be provided the messenger or the medium.

[Malika the Maiz]

Don’t many state constitutions include a right to education? Maybe not the same, but cousins one could argue.

[mike petrik]

Yes indeed. While negative rights putatively preexist the state, which exists at least in part to secure them, positive rights are actually created by the state which must depend on resources and individuals to effectuate them. The first are unconditional within their definitional boundaries, and not dependent on the existence of the state. The second are necessarily conditional on the state having the resources and ability to provide the right.
The Framers generally focused on the negative rights but many state constitutions are more ambitious.

[Speaking for normal people]

There is more of a demand in the organic document setting up public education

"religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged".

[Speaking for normal people]

IF we go back to one of the organic documents

[Organic laws, also known as fundamental or foundational laws, are a set of laws that form the basis of a government]

"religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged".

Now there is no right that bypasses the original motivation. And almost all schools now just don't teach religion or morality with the rigor of say algebra or chemistry.

[wvattorney13]

I've always found the discussion between positive and negative rights to belong in a law school classroom because it doesn't have much utility in the real world. It is based on the location of focus of a particular person.

Is having my chosen book stocked in the library a positive right that I am asserting against the government? Or is the government censorship and removal of my chosen book from the library a negative right that I want protection against? Every negative can be framed as a positive and vice versa.

Then you have the different problem of improving technology. In 1982, if the local library didn't have the book, and the local bookstore did not have it, the chances were I could not get it at all without tremendous effort. In 2025, almost every book is three clicks away on Amazon. Should that inform whether I believe I am being "denied" the the right to view a book or a positive entitlement for it to be provided?

[Malika the Maiz]

I agree. Lots of things the government does involve “robbing Peter and Paul to pay Mary,” whether we call it rights or not.

[Lee Moore]

It's a philosophical point more than a legal point.

The things called "positive liberty" necessarily require that some liberty be subtracted from Peter, so that something (not liberty but power or material or some benefit) be added to Paul.

Negative liberty requires no subtraction from the equal liberty of everybody. Or if you prefer, negative liberty is that kind of liberty which everyone can hold equally.

Thus we can all, equally, have the liberty to try to become professional ballet dancers - in the sense that no one may prevent us from pursuing that goal, either on our own, or by finding voluntary helpers on that path. That's "negative liberty" - no force may be applied to stop us, or to stop others helping us. But it doesn't give everyone an equal chance. Just equal liberty.

But if Consuela is poor and cannot afford ballet lessons, while Doris is rich and can afford ballet lessons - what is to be done ? We can subtract some liberty from Doris to give Consuela a better opportunity, eg by taking some of Doris property (money) to pay for Consuela's lessons. (Though there are other ways.) This is positive "liberty" - and as you see it requires taking something from Doris to benefit Consuela. This confiscatory "positive liberty" is necessarily unequal.

The distinction - while it has practical effects - is therefore conceptual. If you can conceive of a way to help Consuela without confiscating any of Doris's liberty (including her property) - you're still in the negative liberty ballpark. One obvious way is to email Bill Gates and ask him to fund Consuela's lessons. If that results in Doris losing her slot in ballet school, because the school now prefers to teach Consuela, Doris is "harmed" in the sense that she loses out. But no one has interfered with her liberty. She always had the liberty to buy ballet lessons from the ballet school, if they would take her. And she still has that liberty. It's just that the ballet school no longer wishes to take her. Which is their - negative - liberty.

[Malika the Maiz]

Government is all about confiscation that helps some and not others (or helps some more than others). From the cop to the soldier to the highway worker to the postman to the recorder of deeds, they ain’t paid via voluntary bake sales.

[Lee Moore]

I agree that that part of government which requires tax money is involved in confiscation.

But writing laws that punish X for raping Y is not a confiscation. It's the government trying to protect Y's liberty. X doesn't have any liberty to rape Y, because that's an act which necessarily subtracts from Y's liberty.

Your point seems to be - the government necessarily subtracts from our liberty by levying taxes..so what ?

So - the government should do as little of it as is reasonably possible.

[Malika the Maiz]

“But writing laws that punish X for raping Y is not a confiscation”

Those laws don’t enforce themselves, you have to take money from people to pay the cop, judge, DA, warden, etc. and since some people have tiny chances of being raped and others much higher this is robbing Peter and John to pay Bob to protect Mary, no?

[Lee Moore]

You could.

But you could just declare X an outlaw, and leave the punishment to Y's brothers. Lots of legal systems have relied on private enforcement. Some legal systems have required litigants to finance court proceedings, so that that doesn't come out of the public purse.

[Malika the Maiz]

Y has no brothers.

Anyways, that’s miles away from the US.

[Lee Moore]

In these enlightened times, Y can deal with the matter herself.

Anyways, that’s miles away from the US.

Most philosophy is.

[Malika the Maiz]

I could have sworn this was about Ho’s argument of the Founders views of the constitution and negative vs positive rights?

[Malika the Maiz]

“In these enlightened times, Y can deal with the matter herself.”

Good luck with that! As Locke argued people prefer government, even though it is inherently based on giving up rights, over that kind of anarchy.

[Greg J]

Sadly, it's not that many miles away from the US of the Soros DAs

Eventually brothers are just going to start killing their sister's rapist. And virtually no jury will convict them

And if it keeps on going long enough, people will simply start shooting Soros DAs. And again virtually no jury will convict, because after all the DA didn't think "murder is bad" when it happened to us little people.

[Sarcastr0]

You should use present tense when you are on a flight of speculative fancy about the future.

[Riva]

Correction little Mali. Government is all about confiscation when pseudo Marxist democrats are in power. Or maybe that’s just plain Marxist. And that’s not really to help anyone, but just to enrich democrats and their supporters.

[Speaking for normal people]

Most libraries encourage suggestions for purchase from others.
And what librarian can buy with any sense in all categories of LOC subject listing. The real scandal is in universities and research libraries where so many liberal and crazy profs are the only ones who know the fields and they systematically exclude books

-- GENERAL WORKS - WP version - Word version
B -- PHILOSOPHY. PSYCHOLOGY. RELIGION - WP version - Word version
C -- AUXILIARY SCIENCES OF HISTORY - WP version - Word version
D -- WORLD HISTORY AND HISTORY OF EUROPE, ASIA, AFRICA, AUSTRALIA, NEW ZEALAND, ETC. - WP version - Word version
E -- HISTORY OF THE AMERICAS - WP version - Word version
F -- HISTORY OF THE AMERICAS - WP version - Word version
G -- GEOGRAPHY. ANTHROPOLOGY. RECREATION - WP version - Word version
H -- SOCIAL SCIENCES - WP version - Word version
J -- POLITICAL SCIENCE - WP version - Word version
K -- LAW - WP version - Word version
L -- EDUCATION - WP version - Word version
M -- MUSIC AND BOOKS ON MUSIC - WP version - Word version
N -- FINE ARTS - WP version - Word version
P -- LANGUAGE AND LITERATURE - WP version - Word version
Q -- SCIENCE - WP version - Word version
R -- MEDICINE - WP version - Word version
S -- AGRICULTURE - WP version - Word version
T -- TECHNOLOGY - WP version - Word version
U -- MILITARY SCIENCE - WP version - Word version
V -- NAVAL SCIENCE - WP version - Word version
Z -- BIBLIOGRAPHY. LIBRARY SCIENCE. INFORMATION RESOURCES (GENERAL) - WP version - Word version

[Dr. Ed 2]

Ummm, there was InterLibrary Loan back in 1982, I know because I used it. It was slow and a pain, but you could get books if someone had them.

It's part of why the USPS book rate is so cheap, lots of libraries mailed books back and forth to each other. I worked for the part of UMaine that mailed 16mm movie films to high schools and other venues, and they would mail them back.

The real issue was money -- no one could buy all the books in print so the libraries (with limited budgets) loaned to each other and more or less came out even in the deal.

[Speaking for normal people]

I still use it, a lot.
If the freedom folks want to be taken seriously they have to descend to Economics. Not all books are equal. The keepers are few and the ephemera is a tidal wave. YOu can't buy every book so you MUST exercise choice. Now some fools will always say your choice of X over Y was a banning of Y. But parents with children do this all the time, about recordings, movies, books, friends, even toys. Call it banning if you want. But you only say that because you don't see it except as some theoretical word problem

[Greg J]

"I've always found the discussion between positive and negative rights to belong in a law school classroom because it doesn't have much utility in the real world."

Sure it does.

If it boils down to "leave me alone", it's a negative right. If it boils down to "you must do this for me", it's not.

"You must buy, shelve, and support people checking out this book" is a "positive right" demand.

[Speaking for normal people]

NO, that is an Economics issue. You can't buy all books and every single choice to be X is a rejection of the millions of alternatives.

[Michael P]

Dr. Ed links above to a court decision that asserts such a right. It's at least a credible argument when the speaker (or other source of information) wishes to communicate the speech/information -- the First Amendment's protection of speech and the press would not mean much if one had to speak only in an empty room or to pulp paper after printing upon it. But that's still in the vein of a negative right: government may not interfere with, or single out, that transfer of information. Government should release information about its operation, but should not be compelled to communicate arbitrary messages by private parties (which would be a positive right).

[Dr. Ed 2]

The plaintiff was in an undergrad political science class with me -- I never really understood the decision and wondered if it was more political than anything else -- Judge Cyr was from Limestone (Loring AFB) and had gone to both college and law school out of state, and that part of Aroostook county, while Northern Maine, was a different part of Northern Maine.

Cyr was one of those too young to be in WWII and in college during Korea -- unlike most of his vintage, he was not a veteran.

And while the official issue was that one word, do not forget that Maine had been very much military through the late 60s with additional AFBs in Bangor (Dow), Houlton, Presque Isle, Navy in Brunswick. Cutler (sub communication), and Kittery (sub repair), etc.

A *lot* of the parents were Vietnam vets, and 365 Days was highly critical of the war.

What I don't understand is the two decisions appearing to be the exact opposite of each other -- or is that what "diversity amongst the circuits" means?

[Speaking for normal people]

No, it is that if the library is serving you , you aren't to nose into every other patron's reading habits. There is no right to purchase filthy perverted substandard crap just because, hey I like crap

[Dr. Ed 2]

That actually came up in the 1970s when the FBI wanted to know what students were reading. UMass wouldn't tell them, the librarian told me about this years later. Other libraries probably did.

What I never understood is if you didn't want anyone to know you read a book, why not simply read it in the library and never check it out? Just read it there and put it back.

[Greg J]

You "don't buy it" because it's a stupid argument.

The library must actively work to provide the book (if nothing else, they have to re-shelve it when it comes back in after being checked out, which requires action on their part). It's a "positive" (which is to say bullshit) "right".

[Harry S]

This is not some novel principle, that while the government is not required to do a host of actions, it must act constitutionally when it chooses to do so. Judge Ho is perennially wrong and usually ostentatiously so. I’ve never seen anyone audition for the role of most far right MAGA justice with more enthusiasm and verve.

[mike petrik]

Ho might be wrong sometimes, but he is not here. The government in power need not be content neutral in its governance. Reflecting the will of the voters is precisely why we have elections. Refusing to retain or supply someone’s preferred reading material is not a 1A violation. As much as you might wish to read NAMbLA’s 1A protected propaganda, no public library has a constitutional duty to acquire or retain it for you.

[Speaking for normal people]

Harry S, also known as "nobody", writes with no subtlety or sense.
"perennially wrong"
Judge Ho said in an interview published by REASON (see Harry S. doesn't even read, lazy bastard)

the overall message coming from the legal academy as well as the mainstream media is simply this: The judiciary is not to be trusted.

But that gets things entirely backwards. I think the real message we should draw is that the academy and the mainstream media are no longer to be trusted to talk about the judiciary.

======> Now if that is MAGA then most of the world is MAGA

[Malika the Maiz]

Libraries have meeting rooms the public uses. Can the city council say “only Democrat groups can use these rooms?” If not, how is it different to say “only books by Democrats will be on our shelves?”

[mike petrik]

I’m not sure whether the distinction is of constitutional moment, but there is a difference between an elected government using public resources for partisan political purposes versus it using them in ways that reflect the cultural and policy preferences of the voters. The latter is certainly not a 1A violation.

[Malika the Maiz]

There’s a similarity too.

[mike petrik]

Yes, but the right legal answer turns on the dissimilarity

[Malika the Maiz]

Distinguishing works both ways, no two things are 100% the same.

[mike petrik]

True, but your point escapes me.

[Malika the Maiz]

My point is they may have enough similarities to be treated similarly.

[mike petrik]

I see.
I don’t think so. There is a vital difference between a political party using public property, i.e., property it does not own, for its own partisan ends versus a government managing public property in order to achieve the policy ends it was elected to achieve. An example of the first would be removing from the library all newspaper articles critical of the mayor; an example of the second would be removing all articles critical of the death penalty. This distinction is hardly novel. For instance, 501(c)(3) organizations cannot advocate for an political party or candidate, but they are permitted to, within certain limitations, to advocate for or against policy positions, including legislation.

[Harry S]

So a public library can say, the only books we will allow the public to read on political subjects are those that follow the philosophies endorsed by James Ho? And that would be constitutional and not a violation of the First Amendment? That’s not possible. The government has to be neutral to that degree at least doesn’t it?

[Speaking for normal people]

3 stupid things in this post by the perennially stupid Harry S

1) And where would one get a list of the philosophies endorsed by James Ho let alone the books that follow them. I've read for decades and even the most careful pre-investigation doesn't reveal most author's religious, philosophical , or political leanings
DRESS LIGHTLY

2) And who could see a bunch of books on say constitutional matters and ever jump to a defensible conclusion "Aaah, these are obviously due to some James Ho sycophant" ?

3) Neutrality makes zero sense . and shows maybe a certain amorality to you

You squawk like an old lady about moral crises here and there but then talk about neutrality !!!! Neutrality on gay sex for kids, Abortion, Muslim rape and honor killings, Anti-semitism !!!
Shocking

"The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis." — Dante Alighieri

[Malika the Maiz]

“where would one get a list of the philosophies endorsed by James Ho”

Who could possibly say whether Uptom Sinclair was a socialist? Lol

[mike petrik]

No, the government need not be neutral at all on the content it chooses to provide. And yes, the board charged by voters with overseeing the library gets to oversee its content too, not some “wise judge” or “highly-perfumed librarian.” While such boards can and sometimes misbehave by making poor or even obnoxiously ridiculous judgments, such judgments are not of constitutional moment. The legal remedy for such misbehavior is political and the practical remedy is ridicule, both leavened by the 1A. But such misbehavior deprives no one of his 1A rights.

[Malika the Maiz]

As experience with those non-profits show that’s one fine line!

[Stephen Lathrop]

Petrik — Give some thought to the fact that local governments are legally creatures of their states. That makes you the guy arguing that blue states can legally prevent their public libraries from shelving any book which advocates gun liberty. I live in a blue state, and advocate for both gun liberty in some measure, and gun control in some measure. But I oppose any power for my state to ban from public library shelves books which advocate unfettered gun liberty.

Between the two of us, I am the better advocate to protect a right of free expression.

[mike petrik]

I’m not interested in battling for unconstitutional precepts. Yes, blue stares will do blue and red states will do red. That is government by the people, something our Founders rather cherished. Corrupting the 1A in order to ensure you get the free books you want is of no interest to me and is of no interest to the constitution. When you play the game of interpreting the constitution in order to achieve the results you think are optimal you are playing the Left’s favorite game. The game is just as corrupt when played by the Right.

[wvattorney13]

In your view, could a library choose not to stock either side of the gun debate? Do you subscribe to the refusal to purchase v. removing books distinction?

[Josh R]

No, because the government has made those rooms limited public forums. In contrast, the shelves of public libraries aren't public forums.

[Malika the Maiz]

Why?

[Josh R]

As stated in Part IV of the opinion (joined by seven of the judges):

Library shelves are not a community bulletin board: they are not "places" set aside "for public expression of particular kinds or by particular groups."

That statement is another way of saying the decision to put a book on the shelf is government speech.

[Sarcastr0]

That looks more like a analogizing to a public forum than government speech.

[Josh R]

Again from Part IV:

Another way of looking at the government speech issue is to ask whether a library, by selecting books, creates a public forum. In cases where the government displays third-party speech, the government speech and public forum doctrines are often two sides of the same coin. The government argues that it is speaking (and so can say what it wants), while plaintiffs counter that the government has created a public forum (where viewpoint discrimination is forbidden)

[Stephen Lathrop]

Nobody is arguing against a right to reiteration. Maybe someone should.

[Rossami]

As the article already says, it's the difference between a limited public forum and the government's own speech.

[Stephen Lathrop]

Rossami, you are a steadfast advocate for gun rights. I am having a hard time imagining that you support a right for blue states to ban from public library shelves all books which advocate for unfettered gun liberty.

A public library is inherently an expressive instrumentality of a state. That does implicate the question to what extent the state may regulate that expression. Advocacy that state expressive power extends to a veto power over disapproved private expression is a crabbed view of 1A expressive freedom. The opposite advocacy—that the state has no such power—is unambiguously the broader view of 1A expressive liberty. That remains as true in a public library as it is in the public square.

[mike petrik]

You are reasoning backwards. You don’t think that public libraries should “ban” books favoring gun rights, at least if they offer books opposing gun rights, so therefore such a thing must be unconstitutional. While I agree as a matter of policy, the question simply does not implicate the 1A. Just because a library offers books critical of sex with children does not mean it must offer books championing such perversions. The voters get to decide, not wise judges or librarians with multiple degrees.

[wvattorney13]

Also think of the enforcement problem. Who is going to decide if the materials stocked in the library are sufficiently "pro-gun"? Is a John Roberts view of gun rights good enough or must it be 2A absolutist material? Should a court appoint a special master and hire expert scholars to determine if the gun control debate is given proper balance in the library?

[mike petrik]

Agreed, the argument is not only constitutionally infirm it is ridiculously impractical. But the willingness of many to believe that “if only the experts were in charge” is as common as it is risible.

[Speaking for normal people]

But that always comes down to government deciding who is really a Democrat, just like Plessy v Ferguson, Plessy was 1/32 Black but was white as snow to the eye. But the law said "he is Black"
Lawyers with any conscience left no exactly the point I am making.

[MollyGodiva]

Legality aside, countries with book bans don't find themself on the good side of history. It is sad that MAGAs look at authoritarian regimes and say "Let' do what they do."

[Stupid Government Tricks]

It is even sadder than you can't see the problem is government itself, and were quite happy with corruption and censorship when Biden did it.

[MollyGodiva]

I was perfectly fine when Biden went to local libraries and removed books he did not like.

[mike petrik]

No, he just closed the libraries.

[Sarcastr0]

That happened under Trump and was not a federal push.

At this rate you’ll think Obama did 9-11.

[mike petrik]

Trump listened to Dem experts and Biden doubled down after we knew better. Be honest. You can do it!

[Sarcastr0]

Not a federal push, I said.

So you just made stuff up.

[mike petrik]

It was precisely a federal “push.” Choose your words more carefully.

[MollyGodiva]

I did support Biden when he shut down the Institute of Museum and Library Services.

[mike petrik]

Using lazy terms like “bans” does you no credit. Libraries are inevitably the result of curations, and such processes inevitably reflect the values of the curators. The only question is who is the ultimate curator: a wise judge, a highly credentialed librarian, or the taxpayers who choose to fund the collection for the benefit of their community. The constitutional answer is also the right answer.
Yes, libraries in blue areas curate in ways that favor blue conceits just as libraries in red areas curate in ways that favor red conceits, and both would probably benefit from more open-mindedness. But any patron deprivation is not of constitutional moment. The subordination of voters to judges or credentialed experts is not only dangerous, it is inimical to the way our constitution works.

[MollyGodiva]

These bans are not part of normal curating. The bans come because loudest members of the community don't like the contents. It is a book ban. We are seeing them all over the country, even at military academies.

[mike petrik]

Removing a book from a library is banning a book only in the most deliberately tendentious sense. Sometimes the removal is sensible, sometimes not. A book advocating sex with toddlers is protected from banning by the 1A. It is protected in a public library only by evil or crazy people.

[Speaking for normal people]

But it is NOT protected from banning by 1A, I can decide not to buy it and you cannot --- by that same Constitution --- assert you know WHY I did

[mike petrik]

What you decide to do is of no constitutional moment.

[mike petrik]

The post is that it cannot be banned in the ordinary sense of the word, but a public library can choose not to stock it for whatever reason it wishes.

[wvattorney13]

In what universe is it a ban? People who want the book can buy it. There is no prohibition on reading or possessing the book. The language is needlessly inflammatory and wrong.

[Malika the Maiz]

It’s banned from the library system. That universe. And for some that might be their only access.

[mike petrik]

So the public library has a duty to provide some pervert with a “how to have sex with a dead person” book? Or does the duty arise only if the library already purchased the book. If the latter, why? How would the absence of either of these “duties” abridge the pervert’s right to free speech. Please explain.

[Malika the Maiz]

We were talking here about whether the word banned could fit. And it’s entirely emotional to bring up a pervert (we have rights that apply to perverts and non-perverts alike).

[mike petrik]

Dismissing a question as emotional is not answering it.
And it is your insistence on using the word ban that is emotional.

[Malika the Maiz]

No, you bring “perverts” in to introduce an emotional response. Of course when it comes to perverts our law doesn’t respect their negative rights to perverted material (obscenity has long been an exception to free speech).

Nothing emotional about my argument that censorship of particular library materials can be called a ban, bans are often referred to in a context (that is banned in schools, this is banned in public buildings, etc).

[mike petrik]

Malika —
The example is a hypothetical intended to test your hypothesis. Your response is incorrect insomuch as my example involved no obscene material whatsoever but simply advocacy for a position on sexual ethics, and as such it is clearly protected by the 1A. Do you seriously believe it is not?
And your word “ban” is inapt insomuch as it misdescribes self-censorship. The public decides what its public library offers. It censors no one else and bans nothing.
So now answer my question.

[Speaking for normal people]

Yet you don't deny there are perverts , who do NOT have rights as perverts. ALL RIGHTS are based on our shared human nature

AN arsonist or homosexual (or homosexual arsonist , to please you ) has zero rights over any other human being

[JoeFromtheBronx]

What is the point of the "so"?

A children's library can "ban" obscenity. The comment didn't talk about obligations. It simply said this:

It’s banned from the library system. That universe. And for some that might be their only access.

Nothing about a library not being able to "ban" certain things.

[JoeFromtheBronx]

A library is a precious place for people to go to have free access to books and other resources.

Many people won't have the money and overall ability to get such things, especially given the breadth of access available at the library.

Life is easier with the Internet, but only to a certain degree. If something is banned at a library, it will significantly burden access.

[mike petrik]

Ridiculous. No library can make every book accessible to all its patrons. And no library, public or private, has such an obligation, constitutional or otherwise.

[JoeFromtheBronx]

Ridiculous. No library can make every book accessible to all its patrons. And no library, public or private, has such an obligation, constitutional or otherwise.

I didn't say a library can make "every" book accessible.

As with your "so" comment, you are not addressing what is actually being said very well.

[Stephen Lathrop]

petrik — So if, for instance, the state government of California decrees against books which mention gun rights, and demands every public library in the state keep their shelves clear of such books, nothing which offends the 1A has been done?

[mike petrik]

Lathrop — Yes, the government can determine what goes into its libraries. The 1A is not a guarantor of library neutrality. The edict you describe would be an offense against fairness, likely an offense against the ideal of a public library, and perhaps even an offense against some California law, but it would not be an offense against the 1A. Not every offensive act is an unconstitutional act. Your view would not only require the library acquire and retain works favoring pederasty and racial genocide if it contains works disfavoring such horrors, it would also do violence to what the 1A actually says and means.

[Joe_dallas]

there is no book ban

[Malika the Maiz]

There is.

[Joe_dallas]

no - there is no book ban
you are making S___ up

[wvattorney13]

So if I can't buy beer at McDonalds, it is a ban on beer and we are in prohibition times? It's a misleading and untrue argument. Just because I can't get something at a single place does not make it banned.

[David Nieporent]

I don't know what "banned from the library system" means. If I don't buy the latest Dan Brown book, it would be awfully weird to describe that as the book being "banned" from my bookcase.

[JoeFromtheBronx]

A person might not buy a book because their religious or moral beliefs prevent them from doing so. It is a sort of ban.

"Banned from the library system" can mean various things, including a clear ban -- certain books simply are not allowed, even if the library wants to purchase them.

There also might be an official government policy to "weed out" certain books. The books are required to be removed.

We are not just talking about people deciding what books to buy. Libraries are being told they can't buy or retain certain books. They are "banned" from stocking them. Some of the choices might be okay. Banning obscene works or whatever.

I'm speaking generally, not just the specific case here. M. can clarify exactly what they mean.

[Bored Lawyer]

"even if the library wants to purchase them"

The "library" does not want anything. The people who run it, collectively, decide what it should do. And they are answerable to the local government, who in turn are answerable to the electorate.

[Stephen Lathrop]

I like the notion to mobilize the electorate, to vote book-by-book which books become library contraband.

That would put the 1A issue in a context that I think even this conservative Supreme Court might quail to endorse.

[mike petrik]

Exactly. While the electorate will surely behave imperfectly, so will judges, librarians and experts. More importantly, the 1A simply does not police government speech.

[Speaking for normal people]

But at military academies the bans are to restore to earlier sanity.

IF words have meanings then you are saying you know why a professional librarian wrongfully picked book X over book Y

With unlimited money you might have a point but I go to the one county library and the books are a huge mush of trivial ephemeral crap --- I just now did a search at that library on the subject heading "Great Books of the Western World" ONE HIT
How to Think About the Great Ideas
From the Great Books of Western Civilization
by Adler, Mortimer Jerome

Yet 7 books by Mr Filth Armistead Maupin.

[Speaking for normal people]

ALmost every book not bought has a fan.
You are wrong again for 3 reasons.

1) Who is to decide 'normal curating' ? You. well there you go, you have an MLS degree ?

2) Illogical to say that rejection of a book can be only one thing. Armistead Maupin is a terrible writer, no one will know his name in 20 years. And he is a homosexuality promoter. Now to people like you his being homosexual outweighs his being a bad writer. At least admit it . What you really want is the old-fashioned trial by ordeal, where you torture someone to get at their real motive.

3) If we are seeing 'them' all over the country you are illlustrating that you only see not buying a book or getting rid of a book as a ban. But even in the 60s that went on a lot and nobody said what you say

[bernard11]

The only question is who is the ultimate curator: a wise judge, a highly credentialed librarian, or the taxpayers who choose to fund the collection for the benefit of their community. The constitutional answer is also the right answer.

OK, but let's be careful here. Doing what the taxpayers or voters want is not, in this case, the same as doing what the mayor or a majority of the city council wants.

The arguments suffer from one flaw - there is room for more than one book in the library. Imagine a town which is heavily Republican: 75-25, say, and so has a GOP mayor and a healthy GOP majority on the council.

If the library decides that its political books, broadly speaking, should only express conservative viewpoints, then it is not serving the community, no matter what the mayor says. There is plenty of room to make differently oriented works available, and it is the library's responsibility - not necessarily a legal one - to provide such books, precisely because having a cross-section of books available serves the community, and not doing so doesn't. On top of that, it would be foolish to think that the mayor's supporters uniformly agree with all his policies.

To support the community means having a reasonable cross-section of items available.

[Speaking for normal people]

IF you call them 'book bans" of course !! Every parent I know bans books for kids, bans TV, a bunch of things. Your problem is you shove the moral side of things out the door and just shriek "Freedom! Freedom!"
The library, the newspapers, the movies and esp pop music have all gone in the toilet in my lifetime and people like you on the sidelines shrieking "Freedom!! Freedom!!"

[Kleppe]

People peddling sexually explicit books to children don't find themselves on the right side of history, either.

[Malika the Maiz]

I dunno, they’ve been pushing Bibles on kids for a long time.

https://ffrf.org/other-2/x-rated/

[Speaking for normal people]

Aren't you the hateful pervert with no self-awareness

IN what possible sense can pushing explain
There's no exact number of Bibles printed worldwide, but estimates suggest over 5 billion copies have been printed since its first publication in all languages. Additionally, the Bible has been translated into over 2,000 different languages, with full Bibles available in 733 languages.

Listen to Christopher Hitchens you monstrously stupid clod

https://circeinstitute.org/blog/blog-christopher-hitchens-was-right-about-king-james-bible/

Christopher Hitchens asserts :
A culture that does not possess this common store of image and allegory will be a perilously thin one. To seek restlessly to update it or make it “relevant” is to miss the point, like yearning for a hip-hop Shakespeare. “Man is born unto trouble as the sparks fly upward,” says the Book of Job. Want to try to improve that for Twitter?

Regardless of the many other stabs and claims he makes in his essay, his point is rather hard to dismiss. If the most articulate and rhetorically gifted atheist of the 21st century says that the KJV is the finest work of literature “second to Shakespeare” ever produced in the English language, there’s something to it. Christian or not, it is indisputable that the King James Bible (or Authorized Version, if you prefer) is something which transcends religion to becoming a cultural masterpiece, a work of art so influential in the imagination of its people that it’s difficult to calculate.

[Malika the Maiz]

Is the 6th Amendment right to compel witnesses to testify in their favor a positive or negative right?

[Lee Moore]

Obviously a positive right for you, and equally obviously a subtraction from the (negative) liberty of the witness.

Is this hard ? Try the draft if you need a 4th grade intro.

[Malika the Maiz]

Well, the idea the Founders weren’t into positive rights seems done then.

[Speaking for normal people]

It is neither , it is natural law

The next clause prohibits any person from being compelled, in any criminal case, to be a witness against himself, or being deprived of life, liberty, or property, without due process of law. This also is but an affirmance of a common law privilege. But it is of inestimable value. It is well known, that in some countries, not only are criminals compelled to give evidence against themselves, but are subjected to the rack or torture in order to procure a confession of guilt. And what is worse, it has been (as if in mockery or scorn) attempted to excuse, or justify it, upon the score of mercy and humanity to the accused. It has been contrived, (it is pretended,) that innocence should manifest itself by a stout resistance, or guilt by a plain confession; as if a man's innocence were to be tried by the hardness of his constitution, and his guilt by the sensibility of his nerves. Cicero, many ages ago, though he lived in a state, wherein it was usual to put slaves to the torture, in order to furnish evidence, has denounced the absurdity and wickedness of the measure in terms of glowing eloquence, as striking, as they are brief. They are conceived in the spirit of Tacitus, and breathe all his pregnant and indignant sarcasm. Ulpian, also, at a still later period in Roman jurisprudence, stamped the practice with severe reproof.

[Bored Lawyer]

It's both. As part of the criminal procedure part of the Bill of Rights, it's a right not to be prosecuted by the Government without procedural protections. And it forces the Government to provide compulsory process for witnesses.

At one point, when states could only compel witnesses within their borders, if a witness was elsewhere, the defendant was out of luck unless he voluntarily agreed to testify. Then the states enacted a reciprocal law that allowed one state to compel a witness to testify in a criminal proceeding in an another state. And then SCOTUS said, since you have that power, you have to make it available to the defendant.

So it's a right against the Government in the context of a criminal trial.

[Occasional Visitor]

What strikes me most is how clearly Judge Ho explains these principles. Several comments point out how 'obvious' these concepts are, but to me, that only reinforces the point. Ho took a something that bewilders many, then distilled it down so simply and effectively that it seems a completely obvious principle. That takes a depth of skill and a deep understanding to achieve. Well done.

Thanks for sharing this opinion, Eugene. I wouldn't have seen it otherwise.

[wvattorney13]

I still can't wrap my head around the distinction between removal of a book and refusing to buy it in the first place.

It seems that if for the past 30 years the librarian has never bought any LGBTQ books, then the plaintiffs agree that is fine.

However, if 10 years ago there was one rogue liberal librarian who bought a bunch of them, now both libraries are differently situated. The first can continue to bar LGBTQ books while the second library MUST, as a matter of constitutional principle, keep stocking the LGBTQ books.

Maybe they could "die on the vine." The library does not have to buy new LGBTQ books to keep updated, but it must keep those 10 year old books on the shelf, presumably in perpetuity.

[Stupid Government Tricks]

The theory, as near as IANAL can explain it (but not subscribe to it), is that removing a book is like expurgating words or pictures in a book.

Suppose a library has Lady Chatterly's Lover, and a year later someone realizes what it says. They take their black felt pen and cover up the naughty bits. That is active censorship.

Suppose instead they remove the book. That too is active censorship.

Suppose the library in the next county over hears about that and does not buy the book. That's passive censorship, and it is not the same.

[Roger S]

It is the same. If a library is allowed to make decisions, then surely it is also allowed to correct mistakes.

[mike petrik]

Or learn from the mistakes of others.

[wvattorney13]

It would seem then that a library should be extremely cautious when purchasing a new book. They should carefully consider the fact that by purchasing this book they are forever relinquishing control over whether they can choose not to have the book in the future.

Although now, they can choose whether to stock the book, once purchased they have irrevocably committed itself to stocking this book, as a matter of the 1A no less, for as long as the book does not disintegrate.

The one time purchase acts as a one way ratchet to forever bind future decisionmakers. That makes no sense. Could an argument be made that putting a library to such a quandary would chill speech by making a library reluctant to purchase certain books?

[Speaking for normal people]

Any decent librarian has ways to ditch a book. To make room for others, to supplant by a better one, to get a book examining 'both sides'. Gay filth has no raison d'être whereas in serious literature like Aeschylus or Sophocles you can have mother-son affairs and no one blinks because there is a moral and spiritual truth being illustrated.
I think the decline in the education and culture of librarians explains a lot.

[Malika the Maiz]

“Gay filth has no raison d'être whereas in serious literature like Aeschylus or Sophocles you can have mother-son affairs and no one blinks because there is a moral and spiritual truth being illustrated.”

lol!

[Speaking for normal people]

You laugh to yourself, like a madman. Laugh on 🙂

[JoeFromtheBronx]

I don't think an (imperfect) analysis of what the "Our Founders" thought seals the deal. The overall text and principles of the First Amendment do not provide a clear "positive" vs "negative" rights dichotomy. It speaks of freedom of speech and so forth.

It is quite reasonable to argue that this will sometimes involve "positive" governmental action. We can apply that to the Constitution overall. This can be true even if it is largely left to legislative action. The Guarantee Clause comes to mind.

EV has talked about this issue, including here:

https://volokh.com/2013/05/07/positive-rights-the-constitution-and-conservatives-and-moderate-libertarians/

The Supreme Court recognized a "right to access" of trials, resting on various grounds (including the Ninth Amendment).

It rejected a broad right to access with strong dissents in various cases. I'm far from clear that we lack some right to access "a right of access to information generated or controlled by government."

The Constitution provides some easier examples. The Constitution (Art. 1, sec. 9) references a right to access public money expenditures. The House of Representatives is obligated to have a journal. It is assumed the public has access to Congress.

Judge Ho seems to reject the line drawn by the Pico plurality, which might be a correct expression of the law, but far from clear. Once a library exists, there might be constitutional rules in place on how it controls its volumes.

[The dissent argues even if you grant the premise, the Pico dissents did not go as far as the 5th Cir. goes here.]

I think we as a society expect a public library does not just pick books favored by one political party or religious group. We think freedom of speech provides certain overall rules. And, yes, many do expect a "right to receive information" from libraries.

Contra the majority, not everyone can simply "buy the book" or "order it online." Friends will not have most volumes in the library.

Libraries will still have broad discretion to regulate their volumes. Court second-guessing should be carefully done. Meanwhile, constitutional principles are also the responsibility of other branches of government.

[Speaking for normal people]

YOur view of the Founders doesn't make sense. Why ? Because you assume there is nothing behind it
But Gordon S. Wood and Forrest McDonald and esp Donald S Lutz show the BIble and classical roots of the whole thing

Donald Lutz surveyed the political literature of the American founding. He was looking to see who it was that Americans were citing in this political literature. He reports that the Bible was cited more frequently than any European writer or even any European school of thought, such as Enlightenment liberalism. The Bible, Lutz reported, accounted for approximately one-third of the citations in the literature he surveyed. The book of Deuteronomy alone was the most frequently cited work

the apostle Paul was mentioned about as frequently as Montesquieu and Blackstone, who would have been the two most-cited secular theorists.

Lincoln saw this with utter clarity

All the good the Saviour gave to the world was communicated through this book. But for it we could not know right from wrong. All things most desirable for man's welfare, here and hereafter, are to be found portrayed in it.
--September 7, 1864 Reply to Loyal Colored People of Baltimore upon Presentation of a Bible

I've read the court decisions of his time. Slavery and Bigamy, found in many religions, were ruled out by our Founding Principles.

[SRG2]

Slavery and Bigamy, found in many religions, were ruled out by our Founding Principles.

Flatly wrong. Slavery was not only not ruled out, it was specifically referenced - though not using the word "slave" - in the Constitution itself.

As for Lincoln's quote, well, people who believe in the "truth" of the Bible are inclined to give it a weight that others do not.

Yes, a fair number of the FFs were Christians, and some were deists, and a few were no doubt agnostic at best, though then it would have been regarded as politic not to reveal it.

But one always comes back to the key point, that the Constitution makes no reference to God or Christianity, rejects a national religion and any attempt to create one, and prevents religious preference for Federal office. That's pretty conclusive.

[Speaking for normal people]

You are just ignorant
Three references to God in the Declaration of Independence

All 50 state constitutions contain a reference to God or the divine, with most making multiple references. A 2017 analysis by the Pew Research Center found that nearly 200 times references to God or the divine appear in state constitutions.
https://www.pewresearch.org/short-reads/2017/08/17/god-or-the-divine-is-referenced-in-every-state-constitution/

If you knew how stupid you appear on here ....

[wvattorney13]

"We think freedom of speech provides certain overall rules. And, yes, many do expect a "right to receive information" from libraries.

Contra the majority, not everyone can simply "buy the book" or "order it online." Friends will not have most volumes in the library."

That would seem to imply that the Constitution requires every small community to have a library and to stock it will all varieties of books that one might want to read. The "duty to purchase" that even the Plaintiffs did not advocate.

[Davy C]

I think we as a society expect a public library does not just pick books favored by one political party or religious group. We think freedom of speech provides certain overall rules.

I would expect a public library to not just pick books favored by one political party, but *not* for First Amendment reasons. (Just picking books favored by a particular religious group might fall afoul of the Establishment Clause, though.) Not everything that's a bad idea is unconstitutional. Appointing an unqualified person as ambassador as a political reward is a bad idea, for example, but there's no First Amendment issue in doing so. Turning libraries into propaganda mills is also a bad idea, but the government is in fact allowed to put out propaganda. There's no particular reason why they can't build a propaganda center, stock it with some other material to get people in the door, and call it a library.

[Speaking for normal people]

But behind both are truth beauty and goodness. YOU are the one bringing in partisanship. So , take Plato's Republic
Defended by arch conservatives
JOHN WILD
D C Schindler

Attacked by Arch liberals
Karl Popper's "The Open Society and Its Enemies,"

But the book itself does not have those categories, you must impose them

[JoeFromtheBronx]

Appointing an ambassador isn't the matter at hand.

It is the regulation of books, which is more directly a 1A issue.

There are specialty libraries such as for the arts or Native American collections. This one does not appear to be of that character.

In the oral argument, the challengers acknowledge that if the government openly set out to open propaganda mill libraries, it could regulate the books to promote its message.

That isn't the point here. It's a normal library.

https://www.ifs.org/wp-content/uploads/2024/09/Little-v-Llano-County-Transcript.pdf

[Davy C]

BORDEN: The government could express its view in a library if it maintained editorial and content control over every single book, and it was adopting the viewpoint of those books, because that's what government speech is, is when you take control of the viewpoints. This idea of

JUDGE HO: Why does it have to adopt the viewpoint? Why can't the government say, you know what, I want you to have this museum where you can hear this range of viewpoints, some of which are contradictory, but we think this museum will teach you. I assume that'd be okay. You're both sides of this museum.

I am reminded of a book required for my college literature class, decades ago. It has various essays in it about different topics. But it has, for example, three essays expressing a pro-choice view and only one expressing a pro-life view. I think it is very possible to make a collection to express your opinion even without agreeing with everything in said collection. I am not sure why the government can't say something subtly.

[wvattorney13]

So this now gets even more pedantic. The government could do what the Plaintiffs disagree with so long as they insert a disclaimer that this library is a "specialty" library that does not promote the ideas with which it disagrees? Sort of a consumer protection law?

But this has to be displayed "openly"? A sign on the front door saying "We do not endorse LGBTQ propaganda" would suffice? Or must it be more demeaning to itself: "We are a propaganda mill for the right wing anti-homosexual movement"? Must the lettering be of a certain size?

And what does any of this have to do with the 1A?

[David Nieporent]

It is the regulation of books, which is more directly a 1A issue.

But it's not the regulation of books. The books in question can be bought, sold, traded, distributed, possessed, and read freely. Hell, you can even acquire copies of the books and carry them into the library and sit down and read them, if you want.

It's just a regulation — not even regulation, just internal rules — of the government.

[Abdul Abulbul Amir]

Is there a positive right that does not require the labor of someone else?

[Malika the Maiz]

State policing of negative rights well nigh inevitably involves the labor of someone else too (the people who enforce themselves trespass, contract, assault, etc., laws ain’t paid with proceeds from voluntary bake sales).

[Speaking for normal people]

Only in extermis, The Founders both Federalist and Anti-Federalists agreed that a stated enumeration of Rights serves most people to honor them. A paper barrier but that is enough for sensible moral people

In his Farewell Address of September 1796, Washington called religion, as the source of morality, "a necessary spring of popular government," while Adams claimed that statesmen "may plan and speculate for Liberty, but it is Religion and Morality alone, which can establish the Principles upon which Freedom can securely stand."

[Abdul Abulbul Amir]

Example?

[Speaking for normal people]

That is your responsibility, Abdul. Your question testifies it is an important question. Is it important enough for you to actually FIND OUT 🙂

[mike petrik]

Malika —
No, you misunderstand the nature of the negative rights, at least as the Framers understood them. The rights themselves preexist and transcend government, which in turn exists to secure or protect such rights. Labor by others is necessary to secure the right, but not for the right to exist. In contrast, positive rights are created by government and their very existence implicates required the labor of others.

[JoeFromtheBronx]

People might have the right to certain natural resources (such as Native Americans and fishing) that they could access themselves.

[Speaking for normal people]

but fish (like climate) obeys no territorial bounds so whatever right you have MUST imply control over others whose use of waters and fish MUST have an impact on your right to fish.

[Krayt]

I do wonder, though. This site has discussed many an issue where the government has a power, even a plenary power, but it's pointed out it cannot override other constitutional concerns in the Bill of Rights.

So...the removed material would seem to be held safe under the First Amendment. I.e. removing it because of political disagreement with content (as opposed to shelf space) might violate this principle?

I don't think it's a problem because it's government speaking, but why would this be wrong?

[Josh R]

I too am having trouble with the positive/negative rights reasoning in this case.

Assume for the moment that this is not government speech. As explained in part IV of the opinion (joined by 7 judges that held it was government speech), that would imply the shelves are limited public forums where viewpoint discrimination is not allowed. Unless I am missing something, that would also imply the positive-negative rights distinction does not apply. Thus, it would seem to me, the government speech issue ought to be determinative.

And yet, there were 3 judges that only endorsed the positive rights argument and the 7 dissenters conceded that acquiring and placing the books on the shelves were not required by the First Amendment (only removing them was). It seems that those 10 judges didn't view the government speech issue as determinative.

[Speaking for normal people]

YOu can remove something simply because it is controversial.
That implies no stated stance on the controversy. Parents do this all the time !!! If you two can't get along about that toy I AM TAKING IT AWAY

[Kleppe]

"Classical literature is indistinguishable from books modern day pederasts write targeting children. I am very intelligent."

[Speaking for normal people]

Kleppe, okay you think you are very intelligent. That is one person. Enjoy 🙂

[LexAquilia]

"Our Founders enacted a charter of negative liberties. "[L]iberty in the eighteenth century was thought of much more in relation to 'negative liberty'; that is, freedom from, not freedom to."

The fundamental distinction between negative and positive rights is essential to a proper understanding of the First Amendment."

I’m really struck by this part of the judge’s opinion, it embodies the heart of our Constitution and Bill of Rights. The focus on negative liberties, where freedom is about keeping the government at bay rather than expecting it to hand us something, feels so in tune with what the Founders wanted.

They were shaped by Enlightenment ideas and wary of power grabs, as James Madison wrote in Federalist No. 51:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

Judge Ho's understanding of the First Amendment as a shield for our speech and beliefs, not a lever for the state to control them, is just right. It reminds us that liberty shines when the government steps back, letting us speak freely. A society that abandons negative liberties risks losing its resilience. When people are shielded from disagreement or handed platforms without earning them, they grow brittle, less able to navigate a world of competing ideas.

Meanwhile, the supporters of positive liberties invite a future where speech is rationed, dissent is punished, and individual spirit is smothered under the weight of a meddling state. A future that's already starting to manifest.

[wvattorney13]

As I said earlier, the whole debate over positive v. negative liberties is a semantics game. One could argue that this case has to do with "preventing government from censoring my preferred material in the public library" and is therefore a negative liberty---having the government get out of the business of censorship and allowing library patrons to view the material they wish.

I know you, me, and Judge Ho frame it differently. But that is the problem. EVERY issue can be framed both ways making the positive v. negative liberty an exercise in word play and a secondary debate. We've seen it throughout this thread.

[mike petrik]

I don’t think so. The concept must be evaluated from the assumption of the creation by the people of a limited government, i.e., one that lacks the power to do certain things, things that are are retained by the people who created it. The creation by the government of a library expressing the views of the voters deprives no person of any right that preexisted the government’s creation.

[UreyP3]

Says it perfectly - "The Constitution protects "the freedom of speech." That freedom ensures that citizens are free to speak—not that we may force others to respond. It's the First Amendment, not FOIA."
Say whatever you want, but don't insist you can compel me to listen, or agree...

[ReaderY]

I think the key question here is what category to place libraries in. Universities get a measure of autonomy from state interference. Museums do not.

The question is, is a library like a university, or is it like a museum?

I agree with Judge Ho here that it is more like a musuem, since as I see it, it involves a curated collection of artifacts. But it is a debatable point.

Once we know which category it’s in, the outcome is clear enough. And most commenters instinctively place it as “obviously” in one category or another. But the fact that different readers instinctively place it as “obviously” in different categories serves to suggest that from a completely neutral point of view, the question may not be quite as obvious as it first appears.

[austinrussell2025]

Slam dunk. I like Judge Ho