Fifth Circuit: Fuck It, The Censors Can Control Public Libraries
That summation greatly oversimplifies things, but if all you’re going to read is a headline, it will have to do.
We’ll dig in deeper into the Fifth Circuit’s second attempt to handle content moderation vis-a-vis public libraries, but first, we’ll take a look back to what happened last year.
In middle of book ban bills hitting multiple state legislatures — several of which created new civil avenues for private citizens to demand book removals and/or sue public libraries/librarians directly for being offended by books they found on library shelves, the Fifth Circuit handled a challenge brought by the ACLU after a few local right wingers tried to get a bunch of books removed from a Llano County public library.
These were the books that were removed by the library, working from a list provided by allegedly aggrieved county resident Bonnie Wallace and seconded by state rep Matt Krause and his own list of “objectionable material,” which included several more titles referred to by Krause as “pornographic filth.”
Seven “butt and fart” books, with titles like I Broke My Butt! and Larry the Farting Leprechaun;
Four young adult books touching on sexuality and homosexuality, such as Gabi, a Girl in Pieces;
Being Jazz: My Life as a (Transgender) Teen and Freakboy, both centering on gender identity and dysphoria;
Caste and They Called Themselves the K.K.K., two books about the history of racism in the United States;
Well-known picture book, In the Night Kitchen by Maurice Sendak, which contains cartoon drawings of a naked child; and
It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health.
Pretty much everyone acting to get these books removed worked for some branch of the local government, ranging from two county judges, to the state rep, to the library board the local government handpicked to replace the less-than-obsequious board it disbanded after it refused to let Bonnie Wallace run the library.
While some of the Fifth Circuit judges recognized that declaring library content curation “government speech” meant prematurely terminating legitimate First Amendment challenges, the court ultimately decided libraries should be allowed to handle their own content moderation. After all, to do otherwise would mean being forced to carry racist tomes and bigoted creative works. If that meant citizens could cleanse libraries of content they personally don’t like, it was just acceptable collateral damage for refusing to protect the First Amendment right to access content, even if others think you shouldn’t have access to it.
Roughly a month later, the Fifth Circuit said it would take another look at this case, having apparently realized it had enabled censorship while claiming to be protecting librarians’ rights to curate content of the libraries they oversee.
It shouldn’t have bothered. Its first decision was a mess, but at least it held back from actively blessing proxy censorship of protected First Amendment expression by authors and content creators. This review goes further, giving the government free rein to censor content it doesn’t like under the guise of “curation.”
The latest ruling [PDF], which sets precedent for the entire Fifth Circuit and its grouping of overwhelmingly right wing states, says there’s simply no way to solve this problem in a way that makes everyone — including fans of civil liberties — happy. So, if anyone is going to suffer, it’s going to be the citizens, rather than the government.
[P]laintiffs cannot invoke a right to receive information to challenge a library’s removal of books. Yes, Supreme Court precedent sometimes protects one’s right to receive someone else’s speech. But plaintiffs would transform that precedent into a brave new right to receive information from the government in the form of taxpayer-funded library books. The First Amendment acknowledges no such right.
That is a relief, because trying to apply it would be a nightmare. How would judges decide when removing a book is forbidden? No one in this case—not plaintiffs, nor the district court, nor the panel—can agree on a standard. May a library remove a book because it dislikes its ideas? Because it finds the book vulgar? Sexist? Inaccurate? Outdated? Poorly written? Heaven knows. The panel majority itself disagreed over whether half of the 17 books could be removed. For their part, plaintiffs took the baffling view that libraries cannot even remove books that espouse racism.
There’s no room for nuance here, apparently. Either librarians can remove anything they want to or they can’t remove anything. But this isn’t a win for librarians. Librarians tend to actually care about expanding knowledge and minds. Library boards — those run by local governments — are more interested in pushing their own viewpoints at the expense of library patrons. But library boards get the win here because… well, who could possibly want the government to be forced to pay for books that espouse racism?
Only racists really want that. But they can’t actually get that, so they do the next best thing. They disband library boards and re-stock them with sympathizers and then set about removing books that detail the United States’ long history of racism (along with some harmless books containing fart jokes).
Not a problem, says the Fifth Circuit, even if it’s obviously a problem. But what the Fifth Circuit can’t logically (or lawfully) argue away, it chooses to belittle. This is some truly shameful writing from a court that can’t even attempt to hide its disdain for the plaintiffs challenging the quasi-book ban urged on by a state rep that definitely wants to engage in censorship on behalf of a single complainant who wants to remove any content she personally doesn’t like.
Finally, we note with amusement (and some dismay) the unusually over-caffeinated arguments made in this case. Judging from the rhetoric in the briefs, one would think Llano County had planned to stage a book burning in front of the library. Plaintiffs and amici warn of “book bans,” “pyres of burned books,” “totalitarian regimes,” and the “Index librorum prohibitorum.” One amicus intones: “Where they burn books, they will ultimately burn people.”
Take a deep breath, everyone. No one is banning (or burning) books. If a disappointed patron can’t find a book in the library, he can order it online, buy it from a bookstore, or borrow it from a friend. All Llano County has done here is what libraries have been doing for two centuries: decide which books they want in their collections. That is what it means to be a library—to make judgments about which books are worth reading and which are not, which ideas belong on the shelves and which do not.
If you doubt that, next time you visit the library ask the librarian to direct you to the Holocaust Denial Section.
Well, why have a library at all then? Maybe taxpayers would be better off just buying or borrowing (from friends) anything they want to read? Why burden, say, Bonnie Wallace, with the extremely minor tax burden of paying for the occasional book of fart jokes or a treatise on racism in America? In fact, why not just shut down newspapers, radio stations, and news broadcasters? If people want to know what’s happening, surely they can just ask their neighbors or call up relatives living elsewhere in the nation? Who needs public records requests? Surely, anyone interested in the inner workings of their government can just politely ask government employees to answer their questions in person?
This is an extremely specious response to a serious concern, one that has only become more serious in recent years as hundreds of legislators and an entire political party has decided to get into the censorship business.
Only the dissent contains anything worth taking to heart. Written by Judge Stephen Higginson, it calls out the majority’s bullshit take on the First Amendment and the right to information it contains:
Public libraries have long kept the people well informed by giving them access to works expressing a broad range of information and ideas. But this case concerns the politically motivated removal of books from the Llano County public library system by government officials in order to deny public access to disfavored ideas. In an effort to ratify this official abridgment of free speech, the majority overturns decades of settled First Amendment law, disparaging its free speech protections as a “nightmare” to apply.
There it is: not only does the majority decide to give the government an on-ramp for censorship via libraries, it wraps up its refusal to honestly wrestle with this difficult issue by belittling the people who raised it. Everyone in the Fifth Circuit is worse off for it. And this abysmal take on free speech is only going to encourage more of what happened in this case. It gives would-be censors all the permission they need to start ridding public libraries of content they don’t like and the quasi-legal cover for their definitively anti-American actions.