The Right to Read is Dead (in the Fifth Circuit)

Last year I was pleasantly surprised when a panel of 3 judges in the Fifth Circuit ruled against Llano County, Texas, when it ordered the removal of 17 books for ideological reasons. Well, my skepticism proved to be warranted as the full Fifth Circuit just held that there is no right to receive information from libraries so there is no basis for a First Amendment challenge. Libraries in Texas, Mississippi, and Louisiana can now remove any book, for any reason, and no one can question it. This is disturbing but frankly not surprising. The Fifth Circuit is dominated by ideological Republican appointees that hew to the party line closely. The only good thing is the much more dangerous argument, that library collection decisions are in effect governmental speech, lacked a majority and legally is meaningless for now.

The opinion just summarily shoves Island Trees v. Pico (1982) to the side. As I’ve talked about so many times, Pico has never been a strong foundation for many reasons but the biggest is that there was no majority in the opinion. Plurality opinions from the Supreme Court are not binding on lower courts, they are free to adopt some of it or just ignore it. For decades most courts have figured that it was best to treat Pico as worthy of some respect but the Fifth Circuit makes clear it won’t be one of them. It then turned to the argument that there is a right to receive information that banning books violates.

Well, immediately the opinion announces that there is no “banning” going on here: “No one is banning (or burning) books. If a disappointed patron can’t find a book in the library, he can order it online, buy it from a bookstore, or borrow it from a friend.” This logic picks a favorite claim of censors going back decades: if a book (or other item) is available somewhere then it is not censorship to remove it from the library. There is a lot in here to unpack and I don’t have time for most of it but the fundamental problem is it ignores the purpose of removing a book: to make information harder to acquire. That’s the essence of censorship.

Then basically the opinion is what I’d expect it to be. While there is certainly a right to receive information, the Fifth Circuit admits, most of those cases focuses on government preventing a speaker from addressing their listeners. It claims that this is a fully legitimate right by invoking the simplistic idea of negative rigths. That government is prohibited from blocking a consumer from information that they want but they have no affirmative right to the government providing that information. “It is one thing to tell the government it cannot stop you from receiving a book. … It is another thing for you to tell the government which books it must keep in the library.” After all, if the public has a right to receive information from the public library, it could demand that the library purchase a book. Even Justice Brennan’s rights protective decision in Pico admitted that there was no such right. If there is no right to receive anything from a library, then there is no right to contest a decision to remove a book. The Fifth Circuit summarized things as:

All Llano County has done here is what libraries have been doing for two centuries: decide which books they want in their collections. That is what it means to be a library—to make judgments about which books are worth reading and which are not, which ideas belong on the shelves and which do not.

Much of the problem in this analysis comes from the poor theorizing of libraries in constitutional law. The Supreme Court has never adequately figured out how to understand the place of libraries. The buy vs. removal problem is a great illustration. Yes, it is possible to self censor in libraries by refusing to buy materials - in fact, it is certainly the most common kind of censorship. This is why conservatives threaten libraries so they won’t buy books about Black history or queer people existing. But in the ideal world, libraries are designed to be a place of knowledge for the public and purchasing is done according to a collections policy that lays out the factors that lead to buy. For example, a librarian might think Danielle Steele is terrible and a bad example, but it is going to be purchased in a public library where part of the policy turns upon patron interest. Similarly, a medical library replacing an outdated text with up to date information is done according to the collection policy. An academic library is different than a public library, but what unites them all is the definition of policy and, of utmost importance, expert judgment. That is what is lacking in the Fifth Circuit’s opinion, any understanding of the institution of the library. Removal decisions are also supposed to be guided by policy as well. In a public library, to speak generally, books are weeded all the time for lack of use, damage, out dated information, new editions, changing community interests, and so many other things. The problem in Llano County is none of this applied. The books were ordered removed for ideological reasons and nothing else and it was done outside of expert judgment. This makes it unjustified. And the Fifth Circuit has just encouraged more ideological purging such as has occurred in military institutions around the world.

That is all terrible enough but the really dangerous part is Part IV of the opinion where a plurality of the circuit attempted to hold that library collections are governmental speech. The governmental speech doctrine is pretty simply and obvious in its proper context. If government speaks, it can decide what it says. That’s all. So if a government wants to put up a statue to the Great Traitor Robert E. Lee, it can and there is no First Amendment challenge to be had. Conservatives have been attempting to expand this doctrine to all things government. Here, the 8 circuit judges argued that a library collection is in essence identical to the government speaking such that a decision to have a book or not is totally up to the decision of government with no public rights. This is bad for the same reasons noted above in that it ignores the institutional context of libraries. But it is also an argument conservatives are attempting to use to turn education into indoctrination, such as Oklahoma requiring its students to learn lies about the 2020 election. Or the attempt to hold that colleges teach the Republican Party line. This is all an attempt to reverse the declaration of Tinker v. Des Moines (1969) that “state-operated schools may not be enclaves of totalitarianism.”

Sadly, conservatives desperately want educational institutions to become indoctrination mills. The government speech doctrine is one way to get there and while this opinion fell short, it may be only a matter of time before any right to information or academic freedom is eliminated totally. The elimination of the right to read in the Fifth Circuit is a step in that direction.