by Chris Gilbert, Thompson & Horton LLP

In the last ten days, two courts of appeals have issued extremely interesting First Amendment cases involving age-old situations –removing books from a library and banning t-shirts in public schools –that, for whatever reasons, haven’t been addressed by the circuit courts in a while.  I’ll talk about the book removal case in Part 1, while Part 2 (later this week!) will talk about t-shirts.

In Little v. Llano County, — F.4th —- (5th Cir. 2024), the Fifth Circuit ruled that a public county library violated the First Amendment by removing seventeen (17) specific books, which addressed themes of sexuality and homosexuality; gender identity and dysphoria; and racism – and then a group of seven books that the parties and judges all referred to as “butt and fart” books, as typified by Larry the Farting Leprechaun.

The appeal generated three separate opinions by all three judges.  The “majority” opinion of the Court was written by Judge Weiner, who applied the school library cases of Pico and Campbell[1] to the county public library, ruled that the librarians could not remove books if they were “substantially motivated” by the desire to deny “access to ideas with which [they] disagree[ ],” and held that at least at the preliminary injunction stage, the plaintiffs had pled and were likely to be able to show that all 17 books were removed “to deny access to particular ideas.”

Judge Southwick concurred, stating that while he agreed that Judge Weiner’s opinion “accurately captures the state of current law when it identifies the standard from Campbell as the one to apply here,” he believed that Judge Weiner misapplied the correct standard to at least some of the books – particularly the “butt and fart” books, because “it has not been shown the books contain any ideas with which to disagree.”

This led Judge Duncan, writing a scathing but entertaining dissent, to note:  “so we have a genuine first in the Federal Reporter: federal judges debating whether the First Amendment lets a library remove a book called (I kid you not) Larry the Farting Leprechaun.”  Judge Duncan disagreed with virtually all of what he deemed the other judges’ “journey into jurisprudential inanity,” but in particular, he argued that a public library’s choice of what books to include in (or remove from) its limited library collection should be considered “government speech”, and that “[t]hose choices are therefore not constrained by the Free Speech Clause.”

All three opinions raise interesting questions and make interesting arguments about a very difficult legal issue.  But there are two issues that I think are most pertinent.  First, both of the majority judges seem to assume, with little debate, that Pico is still good law.  This is not a small point:  Pico has always been a controversial decision, in part because it was a plurality decision with no clear majority, and its continuing viability has taken more hits in the First Amendment literature in recent years, as the Court’s First Amendment has undergone – let’s call it a “reassessment”.  So it is somewhat interesting that neither Judge Weiner nor Judge Southwick felt a need to defend it (although it is notable that they spent more time discussing and referring to Campbell, a Fifth Circuit decision that relied on Pico, then they did Pico itself).

Second, while I am generally a fan of the government speech doctrine, I’m not sure it applies to the decision to remove a book from a public library.  While the majority opinion suggests that different standards may apply to choosing books and removing books, the dissent rejects that theory wholesale, claiming that what it calls a “bizarre dichotomy” finds no support in current caselaw. I agree that the government speech doctrine should apply to curriculum decisions or textbook selections, which are clearly the government’s own speech (see Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005)).  But a library has always been a collection of third party speech, and as even Judge Duncan admits, “[t]hose who check out a Tolstoy or Dickens novel would not suppose that they will be reading a government message.”

One factor that Judge Duncan ignores is that the decision to remove the books in this case was motivated by a complaint from a private citizen (the record suggested that the librarian was not even thinking of removing or even reviewing books until her bosses told her to), which is true of virtually every book removal case of which I am aware. I cannot think of any book challenge case that started with a librarian deciding to remove a book on their own.  It is highly questionable, therefore, whether the decision to remove a book is truly a “government speech” decision, as opposed to a “caving to the loudest private speaker” decision.

But when a library makes a decision to put a specific book in its limited collection, it really is more of a government decision.  The presumption is that someone has made the decision that that book meets whatever legitimate criteria the library uses for choosing its books.  So if someone then decides to remove a book that was already in the library, a legitimate presumption can be drawn that that choice was made for illegitimate (and maybe illegal) reasons –otherwise it should not have been in the library in the first place.

So to resolve the conflict between adding books and removing books, I propose the following:  instead of looking at these as absolute tests, they should be analyzed as presumptions. A librarian’s decision to choose a specific book (or not choose that book) for a library should be presumed legitimate, absent specific evidence that the librarian chose or rejected the book for an impermissible purpose. By contrast, if a librarian removes a book in the library, based on a complaint, there should be a mild presumption that that removal is impermissible, unless the librarian can establish permissible reasons for the removal.  If a librarian removes  a book as part of a scheduled “weeding” process (what the opinion refers to the “CREW” process[2] and the “MUSTIE” factors[3]), then no presumption exists, and the challenger bears the traditional burden of showing that a book was removed for illegitimate factors.

Coming Soon:  L.M. v. Town of Middleborough, Mass., — F.4th —- (1st Cir. 2024).

[1] Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982); Campbell v. St. Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995).

[2] “CREW”, which standard for “Continuous Review, Evaluation and Weeding”, is a standardized method of evaluating a library’s collection and removing outdated or duplicated materials.

[3] “MUSTIE” are objective factors used for weeding books, where the librarian considers whether a book is “[M]isleading and/or factually inaccurate,” (2) “Ugly (worn out beyond mending or rebinding),” (3) “Superseded by a new edition or a better source,” (4) “Trivial (of no discernable literary or scientific merit),” (5) “Irrelevant to the needs and interests of the community,” or (6) “Elsewhere (the material may be easily borrowed from another source).”