Book Banning and the First Amendment: An Update from Texas

The massive wave of book banning the last few years has reenergized the debate over whether banning books from school and/or public libraries violates the First Amendment. Just a few days ago, the Fifth Circuit issued the most recent decision in this dispute suggesting that book banning may be unconstitutional if motivated by a desire to hide ideas decisionmakers don’t like. Or, as I would say, when government is too incompetent to build a proper pretext for its banning.

Llano County, Texas, is a small county to the west of Austin. In August 2021 a few residents complained of books - which they called “butts and farts” books because they were for children and had silly jokes - and the head of the County told the librarian to remove the books from the shelves. A few months later, the book challengers were back and the county head sent a directive to pull all books that “depict any type of sexual activity or questionable nudity.” Ultimately, the librarian was sent Matt Krause’s infamous list of objectionable material that targeted Black history, LGBTQ folks existing, and dangerous ideas like economic inequality exists. Ultimately, the librarian removed 17 books centered primarily on fart jokes, LGBTQ books (including Jazz Jenning’s memoir), books about racism and inequality (Caste and They Called Themselves the KKK), and sex ed books (It’s Perfectly Normal). Ultimately, the librarian testified that the Krause list was the cause of the book banning. This case is odd because the county got the bright idea of “donating” all 17 books back to the library and claiming they were available for “in-house check out” sort of like reference books are. But as the Fifth Circuit would note: the books were not in the catalog or advertised as available and a patron would have to read the legal materials to even discover this so-called system. So it was a shoddy pretext.

First, a word about something legal types talk about a lot: the procedural posture of this case. This case has been going on for about 2 years now and this decision resulted from a District Court decision on two motions: a motion to dismiss and a motion for a preliminary judgment. The District Court concluded that dismissal was inappropriate and the suit could proceed and it issued an injunction ordering the return of the books and the prevention of further removals. But this is only a preliminary injunction. This means that it is termporary, not a final decision. True, the most important factor is that the plaintiffs are likely to win the case but that doesn’t mean they will win it. The Fifth Circuit upheld, mostly, the injunction but again this is in the context of a pre-trial order. Basically, the appellate court concluded that there were adequate grounds for the lower decision but the case will still proceed to final judgment. No one has “won” the case yet, but the Fifth Circuit decision is a big step forward.

The core of the case turns on what is seemingly the eternal question of my work: does the First Amendment care about book bannings. I’ve written about this before, such as here. As discussed there, Pico is one key case without clear law. A plurality (meaning a decision joined by less than a majority) held that book bannings are unconstitutional if motivated by hostility to the ideas in the books. The other significant case, that I don’t talk as much about, is ALA v. U.S. (2003). Quickly, this case involved the rage for internet filters in public libraries (and schools for that matter). These filters were justified as protecting kids from dangerous things like “porn” but the filters were god awful and caught a ton of protected speech. (In the era of smart phones, filters are pointless for the obvious reason that turning off the wifi evades the filter). Regardless, the Supreme Court yet again issued an unclear decision. It upheld the use of filters but in another plurality opinion because the deciding votes were unwilling to recognize unlimited discretion in what public libraries provided. In fact the key vote was Justice Kennedy who essentially said that filters were constitutional only if the library turned them off whenever an adult requested it.

In terms of the Fifth Circuit’s decision here, two judges correctly concluded that the First Amendment limits removal of library books. The dissenting judge attempted to claim, bizarely, that as Pico was a school library case it shouldn’t apply here, to a public library. This is idiotic precisely because the Supreme Court’s decisions make clear that First Amendment freedoms are less robust in schools and thus if the First Amendment limits school libraries it must also apply to public libraries. There are major practical reasons for this, the easiest of which is that the public library is totally voluntary where as school attendance is mandatory.

As with all library cases, there is no dispute that books can be removed from the shelves for lots of reasons. Books are superseded by new additions, new knowledge, become damaged, are never checked out and take up valuable space. This is the accepted nature of processional judgments of librarians. “But 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.” Book challengers argued that they “were concerned about young readers accessing critical race theory, facts about sexuality, stories about gender dysphoria, and images that purportedly promote ‘grooming’ behavior.” The trial court, after holding an evidentiary hearing, concluded that the removal was motivated by a fear of ideas, and this list only supports that. The first three justifications are explicitly about the hostility towards ideas. They don’t want kids (or people in general) to have access to “critical race theory,” which in this context means books that talk about racism and its legacy, and so seek to remove them. In fact, only the claim of “grooming” raises a potential legitimate argument for removal but when one removes the judicial blinders, any legitimacy falls away.

One judge concurred in the opinion but disagreed about two points. One is that she did not think that the “butt and fart” books contained ideas, so their removal could not have been for hostility to ideas. At some level this makes sense, but it ignores the way in which book banning is not a single book; these folks are engaged in a sustained campaign. The attack on “butt and fart” books, which pose no harm to anyone, was just window dressing to get at the real target, which is everything else banned. Second, she was willing to accept the grooming argument to some extent in banning It’s Perfectly Normal and the other sex ed books because they have drawings of naked bodies and discussion of sex. “Whether these two [sex ed] books … actually promoted grooming or contained sexualy explicit material is irrelevant.” But that is precisely the problem: the grooming argument argument has nothing to do with actually protecting children from sex abuse - in fact every bit of evidence says that a lack of sex ed makes kids more vulnerable, not less, to sexual violence. The grooming argument as put forward by conservative book banners is meant to turn any book that discusses sex, sexuality (including just the existence of queer folk), and even books dealing with post-rape trauma into a nefarious plot to sexualize children and abuse them. It is just another evolution of the classic argument that gay people were trying to “recruit” kids, a staple argument of my 1990s childhood. The concurrence refuses to acknolwedge the real world outside of the testimony and in this lies the limitations of any victory.

Ultimately, the Fifth Circuit rewrote the injunction so that 8 of the 17 books were returned, everything except for the “butt and fart” books and the sex ed volumes. Now the good news, is these 8 included nearly all of the key books targeted for their content, such as Tille Walden’s amazing graphic memoir Spinning which is absurd to pretend is sexually explicit. She’s gay, that’s the explicitness. Also, the victory itself is good news, especially coming from the Fifth Circuit which has a well-deserved reputation of conservative policy judgements too extreme for even our Republican dominated Supreme Court. It suggests some judges are willing to be skeptical of book banners to some extent. The downside is that it again turns on governmental stupidity. It is exceedingly easy to ban books under Pico by creating a pretext for the banning; this is what the grooming narrative is about. Legal judgments run against schools and libraries pretty much only where they were too obvious in their real motive early and created the pretext too late, like here. The book banning industry that the Republican Party now buys into is trying to train school and library boards in ways to make content based decisions keeping dangerous info about racism, queer people, or that sex exists from the public but avoid losses in court. How successful they will be depends on whether the judge is willing to look at the real world. The concurring judge here refused to do exactly that. But this case is not over, yet, because it will now need to head back to trial.

So I’m a bit skeptical of things writ large, but I’ll take any victory that rolls back book banning even a little bit.