Report: “5th Circuit Rules Texas Library Patrons Have No First Amendment Right to Information”

From the Austin American-Statesman:

The federal 5th Circuit Court of Appeals ruled for the first time Friday that public library patrons have no right to receive information under the First Amendment, overturning a decades-old precedent barring the removal of library books “simply because they dislike the ideas within them.”

Coming from the full bench of the New Orleans-based court, the stunning 10-7 decision strikes down a lower court ruling that ordered Llano County in Texas to temporarily return 17 books it had removed from public library shelves.

It also sets up a circuit split that could send the case to the U.S. Supreme Court.

In a 60-page majority opinion, Judge Stuart Kyle Duncan asserted that “no one is banning (or burning) books” by removing them from libraries because they’re available elsewhere.

“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,” wrote Duncan, who was appointed by President Donald Trump. “All Llano County has done here is what libraries have been doing for two centuries: decide which books they want in their collections.”

To serve the public, libraries have to decide “which ideas belong on the shelves and which do not,” Duncan ruled.

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In a grave misreading of how librarians operate, Duncan asserted that a librarian choosing to buy a book and place it on library shelves is akin to a government endorsement. “What the library is saying is: ‘We think these books are worth reading,’” Duncan observed.

The Fifth Circuit decision now sets up a high stakes Supreme Court showdown, as it conflicts with decades of precedent, and a recent decision by the Eighth Circuit in a challenge over Iowa’s book banning law SF 496. In blocking portions of the Iowa law, a three-judge panel of the Eighth Circuit soundly rejected the idea that the government speaks through the books librarians and educators choose to make available, noting that libraries by definition should offer diverse opinions, and not just state-approved content.

“A well-appointed school library could include copies of Plato’s The Republic, Machiavelli’s The Prince, Thomas Hobbes’s Leviathan, Karl Marx and Freidrich Engels’s Das Kapital, Adolph Hitler’s Mein Kampf, and Alexis de Tocqueville’s Democracy in America,” the Eighth Circuit held. “If placing these books on the shelf of public school libraries constitutes government speech, the State ‘is babbling prodigiously and incoherently.'”

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The decision could have major ramifications amid an ongoing surge in politically-motivated book bans. At the very least, much of the litigation now pending will likely be extended by years while pending a Supreme Court decision in this case.

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Statement

• Library Censorship Greenlit in Llano County in Alarming Court Decision (via PEN America)
• Rejecting Government Speech Doctrine in Public Libraries: EveryLibrary Statement on the Fifth Circuit Ruling in Little v. Llano County (via EveryLibrary)

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