The US Court of Appeals for the Fifth Circuit on Friday reversed a lower court’s decision to return books that had been removed from the library system in Llano County, Texas.
Judge Kyle Duncan, who wrote the majority opinion for the case, reasoned that the plaintiffs have a right to receive information but that this right cannot compel the government to provide taxpayer-funded library books. Additionally, the court found that a library’s decisions are government speech and are not subject to free speech challenges under the First Amendment to the US Constitution.
The court reasoned on the first issue that if the right to receive information in this situation were found, then there would be stagnation in the library system, as people would always challenge the selection of books being purchased. Judge Duncan cited the Llano County panel that chose to remove the 17 books as disagreeing on nearly half of the books selected. Judge Duncan further noted that there is a lack of a standard for judges to apply when determining if a book should be removed, and that this is better left to the discretion of the library’s review.
As to the second issue of government speech through libraries, the court stated that expressive activity like book selection is engaged in all the time through the selection of newspaper stories, the curation of museum exhibitions, and the choosing of television programs. Judge Duncan said that by placing and removing certain books from library shelves, the government is saying, “We think these books are worth reading.”
The court rejected the extension of the public forum doctrine from the space of the library itself to the content that is placed on the library’s bookshelves, even as a limited public forum. A limited public forum is government-owned or operated property that the government has opened for expressive use by the public, but only to certain members of the public or only for certain purposes. The court stated: “Library shelves are not a community bulletin board: they are not ‘places’ set aside ‘for public expression of particular kinds or by particular groups.'”
Judge Duncan wrote: “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.” This case comes amidst a recent rise in challenges to the removal of books from schools and libraries and follows on the back of decades of defining what is considered “free speech” in public education settings.
The plaintiffs in this case were patrons of the county library system who believed that the removal of such books was are violation of their First Amendment unenumerated right to receive information.
Llano County argued that the books chosen for removal were done through a regular review system, called “Continuous Review, Evaluation, and Weeding” (CREW), which is common to nearly all libraries to make room for new materials. Llano County removed books that fell under their “Misleading, Ugly, Superseded, Trivial, Irrelevant, and Elsewhere” (MUSTIE) designation. Some of the 17 titles removed were: Caste: The Origins of Our Discontent by Isabel Wilkerson, Called Themselves the KKK: The Birth of an American Terrorist Group by Susan Campbell Bartoletti, Spinning by Tillie Walden, In the Night Kitchen by Maurice Sendak, and It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health by Robie Harris.