Court Upholds Removal of Books from Library

Opponents of library censorship lost an important case we have been following the past two years from rural Llano, Texas. A group of citizens petitioned the county commissioners with a list of 17 books they wished to have removed from the library shelves. Texas law provides that books are to be chosen by the county librarian. However, the librarian felt obligated to accede to the commissioners when they so requested and removed the books.

The books in question were a mix of serious titles meant to encourage self-respect by children whose differences from others can isolate them and make them doubt their self-worth, with other books less serious of purpose. The more serious books included They called themselves the K.K.K.: The Birth of an American Terrorist Group, Being Jazz: My Life as a (Transgender) Teen, The Origin of Our Discontents, and It's Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health. The less serious, appealing more to the juvenile sense of humor, included such as Larry the Farting Leprechaun, Freddie the Farting Snowman, Gary the Goose and His Gas on the Loose, My Butt is So Noisy, and Harvey the Heart Has Too Many Farts. Let's just say I'm glad my parents gave me Dr. Seuss rather than that second group of “humorous” tales. Somewhere in this mix was Maurice Sendak's classic In the Night Kitchen, where a child is seen undressed. Shocking.

A second group of local citizens objected to the book censorship on First Amendment grounds (free speech and the right to hear speech) and took the county to court. They first asked for an injunction to order the books returned to the shelves, even as the underlying case weaved its way through the courts. The injunction was granted, the books returned to the shelves.

The county appealed, the appeal being heard by a bank of three judges from the Fifth Circuit Court of Appeals. There are ten circuit courts and the Fifth Circuit generally has been thought of as the most conservative. It's rulings become law in the states of Texas, Louisiana, and Mississippi. The three judges each had their own opinion. One said return the books to the shelves, one said the library could be required to remove them, the third split the difference so to speak. That judge ordered eight books returned to the shelves but nine could be removed. That became the majority opinion, eight books deemed expressing serious ideas to remain on the shelves, it being impermissible to silence their content, while the others (mostly the “butt and fart” books) lacked any serious ideas. Goodbye. The citizen-censors appealed this decision too.

More recently, the entire court (17 judges) took up this appeal. The primary issue was the free speech consideration that implies people also have the right to receive information. Free speech would be meaningless if the government could deny you the right to hear speech it doesn't like. You would only be free to talk to yourself. In a 10-7 decision, the majority of judges ruled that free speech does not apply to the choice of books in a library, nor a later choice to remove them. It permits people to transmit and receive information freely, but it does not require the government to provide information you wish to receive. People may still obtain those books, just not at taxpayer expense. In reaching their decision, the court overruled its own decision from 30 years prior.

Secondly, the choice of books by a public library is government speech, they said, which is not subject to free speech requirements. The court said that people can speak out against the government's words and replace its officials at the ballot box, but they cannot compel the government to say what they want to hear. Citing an earlier case, “when the government speaks for itself, the First Amendment does not demand equal time for all views.” Hence, libraries can provide or not provide whatever words they choose.

The seven dissenting judges held a different opinion. They wrote that Supreme Court precedence has established that the First Amendment protects “twin principles, the right to receive information and the right to be free from officially prescribed orthodoxy.” They pointed out that this was not a case of normal “weeding,” where libraries remove books that are damaged or no one ever reads. They were removed to deny citizens access to information the government did not like.

In this vein, the minority quotes from a 1953 speech delivered by President Eisenhower at Dartmouth University. In a case with good arguments on both sides, these words still ring powerfully to my ears. Speaking of the fight against communism of that era, Eisenhower said, “...we have got to fight it with something better, not try to conceal the thinking of our own people. They are part of America. And even if they think ideas that are contrary to ours, their right to say them, their right to record them, and their right to have them at places where they are accessible to others is unquestioned, or it isn't America.” I haven't read them, but I don't imagine the “butt and fart” books are repositories of ideas, stupid, in poor taste, but harmless. Resorting to this to get children's attention is giving up on the reason they should read in the first place. We can do better by our kids. The others apparently do express ideas, though they may not always be ones we share. This is how children learn to think. We need thinkers. I like Ike.