Fifth Circuit Ruling Stands – Government cannot censor speech, but it has no First Amendment obligation to provide it.
The US Supreme and Circuit Courts have already answered a question that, by extension, applies to many First Amendment challenges. Mostly progressive plaintiffs continue to argue that defunding NPR or rejecting some titles that are then removed from school or library shelves violates the First Amendment. It is not a new topic on these pages or over on GraniteGrok.com. In If Book Banning is Bad Why Can You Do It, I observed that,
[State librarian nominee Mindy] Atwood says she believes “deeply in the mission of public libraries to provide free and equal access to information for everyone” but NH libraries refuse to stack texts by the millions. What you choose says a lot about you, I think. It is a choice made by the librarian and the library, but no one calls it banning books.
Limiting access to sexually explicit texts is no more a book ban than preventing minors from accessing alcohol, tobacco, vape, or entry into bars and strip clubs.
We don’t let minors drive, but no one claims to have banned cars.
The left uses the term book ban but it is misinformation or perhaps disinformation, and the Fifth Circuit got it right when it said,
The First Amendment can’t be invoked to challenge a library’s decision “about which books to buy, which books to keep, or which books to remove,” the court held. …
“It is one thing to tell the government it cannot stop you from receiving a book,” the court said. “The First Amendment protects your right to do that.” “It is another thing for you to tell the government which books it must keep in the library. The First Amendment does not give you the right to demand that.” ..
The “plaintiffs have a First Amendment right to read books. They don’t have a First Amendment right to force a public library to provide them.” “It’s the First Amendment, not FOIA.”
The books a library, librarian, or nut-job grooming leftist demand be on a shelf and accessible to minors is a value judgement and nothing else. And the US Supreme Court just made it clear that the Fifth Circuit got it right.
The majority also stated that even though its decision would deprive library patrons of any ability to challenge viewpoint-discriminatory book removals in public libraries, they should “[t]ake a deep breath” because they can still “order [the book] online, buy it from a bookstore, or borrow it from a friend.”
This does not resolve the matter of differing Circuit Court decisions, nor does it clarify that the Fifth Circuit held that collection decisions are government speech and not subject to a First Amendment challenge. [Related: Actually, Libraries Are The Problem]
There are also some remaining hairy Rube-Goldbergian questions surrounding viewpoint discrimination and the reasons why any particular book or content might be removed. You can read the petition that SCOTUS declined to take up if you want to go down not just the rabbit hole but into the warren. It’s a fascinating tightrope worth reviewing if you are not specifically talking (in this instance) about age appropriateness and access based on cultural norms.
There is clearly room for debate over whether library collections constitute government speech or the right of citizens to access speech, because their exclusion could constitute viewpoint discrimination. That, however, then raises the question of how millions of titles, or hundreds on, say, Firearms or Second Amendment rights, must be shelved lest we stumble over the problem.
Librarians can’t carry every book anyone might want made available at taxpayer expense. It is simply not possible.
The folks yelling book ban are arguing that adult subjects, including sex with adults, children, drug use, smoking, and other activities, including representations of any or all of the above, must be made available to minors. That rejecting this standard is book-banning and unconstitutional. The courts have not spoken on the matter because no one has brought it before them or such a case has not been taken up.
At this point, many questions remain, but if you live in Texas, Mississippi, or Louisiana, you can remove or reject offensive content because there is no First Amendment right to make it available at taxpayer expense. Just about everything else remains unresolved, but that one argument is a step in the correct direction. As the courts ruled when NPR and CPB sued because their funding was cut, the government may not prohibit speech, but it is not required to fund it.
