The Fifth Circuit on Library Selection and Removal Decisions and First Amendment Rights of Listeners

The primary argument supporting a claimed First Amendment prohibition on public libraries’ excluding books based on viewpoint was the First Amendment right of listeners. The majority in today’s Little v. Llano County en banc decision held that this right doesn’t give people an entitlement to have the government provide the materials in the library:

We hold that plaintiffs cannot invoke the right to receive information to challenge the library’s removal of the challenged books.

First, plaintiffs would stretch the right far beyond its roots. As discussed, the [Supreme Court’s right-to-receive-information precedents] teach that people have some right to receive information from others without government interference.

It is one thing to tell the government it cannot stop you from receiving a book. The First Amendment protects your right to do that. It is another thing for you to tell the government which books it must keep in the library. The First Amendment does not give you the right to demand that.

Second, if people can challenge which books libraries remove, they can challenge which books libraries buy. “[A] library just as surely denies a patron’s right to ‘receive information’ by not purchasing a book in the first place as it does by pulling an existing book off the shelves.” For good reason, no one in this litigation has ever defended that position.

Suppose a patron complains that the library does not have a book she wants. The library refuses to buy it, so she sues. Her argument writes itself: “[I]f the First Amendment commands that certain books cannot be removed, does it not equally require that the same books be acquired?” She would be right. This means patrons could tell libraries not only which books to keep but also which to purchase. Could they also sue the county to increase its library fund?

In a footnote, plaintiffs try to distinguish book removals from purchases. They say libraries have “a wider variety of legitimate considerations” for not buying books, such as “cost,” and they assert unbought books will “vastly outnumber” removed books.

So what? Plaintiffs can just as easily probe a library’s “considerations” for not buying a book as for removing one. Did the library lack funds, or did the librarian dislike the book’s views? That’s what discovery is for. And it is no answer to say that a failure-to-buy case will be harder to prove than a removal case. Maybe, maybe not. The point is that, once courts arm plaintiffs with a right to contest book removals, there is no logical reason why they cannot contest purchases too.

Third, how would judges decide whether removing a book is verboten? What standard applies? The district court asked whether the library was “substantially motivated” to “deny library users access to ideas” by engaging in “viewpoint or content discrimination.” The panel clarified that libraries could remove books that are “[in]accura[te],” “pervasively vulgar,” or “educational[ly] [un]suitabl[e].” On en banc, plaintiffs argued the standard was “no viewpoint discrimination.” Applying such tests to library book removals would tie courts in endless knots.

Consider one of the challenged books: It’s Perfectly Normal, a book for “age 10 and up” that features cartoons of people having sex and masturbating. If the library removed the book because of the pictures, as plaintiffs claim, did it violate the First Amendment? Surely the library wanted to “deny access” to the book’s “ideas.” So, yes. And surely the library “discriminated” against the book’s “content.” So, yes again. But the library also deemed the book “educationally unsuitable” for 10-year-olds. So, no. And it likely found the book “vulgar,” but perhaps not “pervasively.” So, maybe. No surprise,

Read More

Article from Reason.com

Reason Magazine

The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.