An appeals court issued a First Amendment decision on June 6, ordering the return of controversial books to public library shelves in the children’s section. The highly fractured court opinion requires libraries in Texas to restock books on trangenderism but not those depicting nudity and sex.
The case arose after community members objected to “pornographic and overtly sexual books in the library’s children’s section,” and libraries removed the objectionable materials in response. Several community members sued.
Litigation in the lower court, which issued a more expansive order to restock the books, continues after the appeal court’s decision and will determine whether the removals violated the First Amendment.
Two judges on the three-judge panel of the Fifth Circuit agreed that books like Gabi, a Girl in Pieces, Being Jazz: My Life as a (Transgender) Teen, and They Call Themselves the K.K.K. must return to library shelves during the ligitation.
These books discuss sexuality and homosexuality, transgenderism, and “the history of racism in the United States,” respectively.
One judge would have ordered books like In the Night Kitchen and It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health to return to library shelves.
It’s Perfectly Normal, a book written for a 10-and-up audience, is replete with cartoons of people masturbating and having sex.
Judge Jacques Wiener, Jr., who would have ordered all books returned, accepted that libraries must engage in content-based curation, such as assessing what will be or is of interest to the community. Wiener, however, argued that the removal decisions were substantially motivated by a wish to deny patrons access to material the censor personally disagreed with instead of because of a lack of community interest:
[A] book may not be removed for the sole—or a substantial— reason that the decisionmaker does not wish patrons to be able to access the book’s viewpoint or message. . . . [A] book by a former Grand Wizard of the K.K.K., which hasn’t been checked out in years and is discovered by a librarian during routine weeding, could be removed based on lack of interest and poor circulation history.
Judge Leslie Southwick agreed in part with Wiener and wrote a partial concurrence. Southwick, however, argued that removing books like In the Night Kitchen and It’s Perfectly Normal was likely constitutional:
I would have no difficulty in allowing the removal of a book from the children’s section on the basis that it encourages children to engage in sexual activity with adults or includes sexually explicit content. At this stage of the case, I find ordering the return of such books to be error.
Judge Stuart Duncan dissented. Duncan chastised Wiener and Southwick for “appoint[ing] themselves co-chairs of every public library board across the Fifth Circuit” by “issu[ing] ‘rules’ for when librarians can remove books from the shelves and when they cannot.”
In Duncan’s view, public libraries’ curatorial decisions were government speech immune from the First Amendment:
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.
The opinion:
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