Last Thursday, a divided panel of the Fifth Circuit ruled (in Little v. Llano County) that plaintiffs who challenged the removal of seventeen books from a county library were entitled to a preliminary injunction requiring the library to return eight of the seventeen books to its shelves. The panel majority also enjoined the library from removing any books in the future without first providing plaintiffs “documentation of (a) the individual who decided to remove or conceal the books, and (b) the reason or reasons for that removal or concealment.”
Judge Jacques Wiener wrote the lead opinion. He would have required the library to return all seventeen books to its shelves. Judge Leslie Southwick concurred in part. Judge Stuart Kyle Duncan vigorously dissented from what he condemned as a “journey into jurisprudential inanity.”
The nine books on which Wiener and Southwick differed included these seven books that the panel referred to as “butt and fart” books:
My Butt is So Noisy!
I Broke My Butt!
I Need a New Butt!
Larry the Farting Leprechaun
Gary the Goose and His Gas on the Loose
Freddie the Farting Snowman
Harvey the Heart Has Too Many Farts
A threshold issue that divides the majority and the dissent is whether the Fifth Circuit’s 1995 opinion in Campbell v. St. Tammany Parish School Board—written, as it happens, by Judge Wiener—should be read to extend from school libraries to public libraries or whether such an extension is foreclosed by the Supreme Court’s 2003 ruling in United States v. American Library Ass’n (ALA). I have not examined that question with any care and therefore will refrain from opining on whether or not circuit precedent required the majority’s ruling.
But on the premise that the majority’s ruling is required by circuit precedent, the ruling screams for en banc overruling. The rule that the majority propounds is that a library patron’s First Amendment rights are violated when a librarian removes a book “with the substantial motivation to prevent access to particular points of view.” At the same time, the majority says that a librarian may remove a book based on a belief that it is “pervasively vulgar” or “on grounds of educational suitability” or out of concerns over “accuracy of the content.”
In his lengthy and entertaining dissent, Judge Duncan argues that the majority’s rules are a “disaster” without “any basis in law or common sense” and that “applying them will be a nightmare.” He points out that the members of the majority can’t even agree how their rules apply to more than half the books in this case. An excerpt (many citations omitted):
The rules themselves are facially absurd: by the majority’s own admission, a librarian can remove The Autobiography of David Duke only if it has a “poor circulation history.” Moreover, the rules will be a nightmare to apply. In this very case, the two judges in the majority cannot even agree on how they apply to crude children’s books like I Broke My Butt!. So, we can look forward to years of litigation testing whether a librarian’s “substantial motivation” for removing Gary the Goose and His Gas on the Loose was her “desire to deny access to certain ideas” (unconstitutional) or rather the belief that the book was “vulgar” or “educationally unsuitable” (constitutional).
What a train wreck. It has never been the law that the Free Speech Clause bars a public library from selecting or removing books based on content or viewpoint. To the contrary, “[a] library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material.” ALA (plurality). Plainly, that involves choosing some books, and rejecting others, because of what they say or how they say it. If a library could not do that, it would be a warehouse, not a library.
Imagine if a library had to feature books of all viewpoints. Alongside history books, it would have to shelve conspiracy theories. Alongside medical books, it would have to shelve quackeries. Alongside books on Jewish history, it would have to shelve books denying the Holocaust. How preposterous. A public librarian can, without transgressing the Free Speech Clause, reject such books—precisely because she rejects their viewpoint. Just so, if a librarian finds such books on the shelves, she can remove them.
There is a simple answer to the question posed by this case: A public library’s choice of some books for its collection, and its rejection of others, is government speech…. This conclusion is supported by a long line of Supreme Court precedent, as well as authority from our sister circuits. It means the Free Speech Clause does not constrain a public library’s collection decisions….
In other words, the Constitution does not deputize federal judges as the Library Police.