Federal Appeals Court Tosses “Book Ban” Challenge, Library May Remove Books Based on Content
“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”
With all the buzz about Judge James Ho’s takedown of the Supreme Court last week in the TdA case, you may have missed his other concurrence—and a great Fifth Circuit decision on the so-called library “book bans”: In a 10-7 ruling, the full panel of the federal appeals court held a public library can take down books it doesn’t want on its bookshelves, dismissing the free speech claims against their removal.
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.
In 2021, responding to public complaints, the Llano County library removed 17 controversial books from its shelves, including such literary gems as: Freakboy; Freddy the Farting Snowman; and Being Jazz: My Life As a Transgender Teen. A group of patrons then sued, alleging the library illegally “banned” the books.
Until last week, the case was going the plaintiffs’ way. In 2023 the federal district court sided with the patrons, ruling the library violated their “right to receive information” under the Free Speech Clause and ordering the books to be put back on the shelves. Last year, a divided panel of the Fifth Circuit Court agreed.
But now—over the dissent’s accusation it had “joined the book burners”—the Fifth Circuit has ruled en banc there is “no such right” under the First Amendment:
“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 court (with seven of the ten judges joining) also held that the library’s book selections are government speech, similar to a city museum’s selection of which paintings to feature in an exhibit—and therefore not subject to a Free Speech challenge.
Judge Ho comes to the same conclusions but with a fresh take, distinguishing between negative and positive rights under the First Amendment. The Constitution enshrines “negative liberties” … “freedom from, not freedom to,” he writes. 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.”
For parents fighting gender indoctrination in schools and public libraries, the Fifth Circuit just set welcome precedent. They’ve been under a relentless, coordinated nationwide attack smearing them as “book banners” for years.
The court rejected the “censorship” trope as dishonest “wordplay.” And then, to remove any doubt, it overruled its own 1995 decision in Campbell v. St. Tammany Parish School Board, where it suggested students could challenge the removal of a book from public school libraries, calling that decision a mistake.
“No one is banning (or burning) books,” the court said. “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.”
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Finally! Some lawfare pushback.
One only wonders (not much) what a Boasberg would have made of it, which is the crux of the progressive “judge” problem.
Leftist judges historically have always supported leftist positions on all issues. An intrinsic attribute of the left.
And conservative judges have gone for fairness, for the tie. That’s why we’ve been losing for so many years and our winning still isn’t removing the left as it continues to fight on from high positions of power.
Because we don’t really want to win. So we don’t. This won’t change until our attitude changes.
One of his ideological pals was the district court judge in this case, and we see what that judge did.
Common sense seems to be one of the most rare things in the universe these days.
Although isnt it interesting that the kinds of books democrats want accessible by children revolves almost exclusively around adults fucking children. Strange that.
My best friend has worked for a huge urban library her whole career, and is now the manager of a giant branch. She often told me about doing book requests, it required knowledge of the literature, and good judgement. What I wonder is who requested these books in the first place? This will keep on happening.
I would suspect that the same people suing the libraries are the same ones that requested the books years ago be purchased and placed on the shelves.
I use our local library a lot, and have for years. Every year they have a giant library sale to the public to get rid of books (and videos, cds, etc.) that are out of circulation because of changing tastes and to free up space for new arrivals. Limited resources and space make curating the collection a necessity.
I agree, but I’m tired of librarians curating books that are of, by or about women.
You library doesn’t have a book you want to read? No problem. Request an inter-library loan. No need too go running to the courts to have them hold your hand because you haven’t grown up yet.
Or (radical thought) go to a book store…
and yet, the ALA wants and defends offensive books on library shelves.
I am still very disturbed at how many judges voted for the opposite holding here.
Re-criminalize s0d0my, and all this rainbow jihad nonsense goes away.
In the late 19th century thru the early 20th century, steel magnate and philanthropist extraordinaire, Andrew Carnegie, gifted $80 million dollars (one billion in today’s dollars) to build pubic libraries throughout the world; 1,689 libraries in the USA itself.
I’m fairly certain Mr. Carnegie and his board of trustees did not envision 100 years hence certain patrons demanding the govt. stock those stacks with how-to handbooks so obese green-haired troons could groom lil johnny to put on a dress and make up, then bend over so troons could pork him in his squeak hole. But I could be wrong.
Just like the USA cannot take in 8 billion ‘immigrants’ because reasons, libraries cannot be expected to stock every single publication produced since Alexandria burned down. Decision are made with limited resources, and the court issued the correct decision in this case that merely ran up billable hours and wasted the court’s time.
Re-criminalize s0d0my, and all this rainbow jihad nonsense goes away.
There has never been a book ban like described. People are free to go on Amazon, Abe’s Books or where ever and buy what they want. Government should never be forced to provide books to you.
Abe’s is an awesome resource. It’s a clearinghouse for used book stores across the country and many new books are also available. Been buying from them now for about three years. In fact, I currently have three outstanding orders for books that are on the way.
I was counting on this going the other way so that I could rush out and demand, under the 2nd amendment, my government provided AR15
Just yesterday I commented on a story at the Western Journal. Here’s an excerpt from what I wrote:
Cutting NPR’s funding doesn’t prevent it from exercising its First Amendment rights. It can continue to air whatever news and opinion it cares to carry. If NPR relies on the labor of others (money from taxation), then it’s not exercising a right. No natural right relies on the labor of others. (If you rely on a government’s support for a right, it’s a civil right, like the right to vote or to a trial by jury, not a natural right like freedom of speech. Anyone who disagrees should ask the government for that gun that’s owed to them and see how long they have to wait for it.)
And yet, when “constitutional carry” was the big bugbear of the day, grabber after grabber went on the air and stupidly asked, “Do you really think the government should give everybody a gun?” The blatant ignorance was damning
Very common sense decision. Glad to see that the negative v positive rights framework is being taken up in case with a higher profile.
we are becoming a Critocracy
Again I feel kind of mixed by this ruling. By all means control which books are available in school libraries. They should be age appropriate. Public libraries are a different matter although I have no trouble putting restrictions on which books can be lent to children.
Books for adults are a different matter. If we leave it to the government ie- public librarians then it is there opinions which govern which books are purchased and made available. An activist librarian with this authority could easily remove or not order books with an opinion they disagree with.
Again some sort of reasonable middle ground is required.
The public libraries are often run by a public board and overseen by the local gov’t City council. That’s the check on librarians getting goofy; the local Citizens caring enough to vote if the operation of the public libraries are a priority. Obviously someone must make selection decisions. Shelf space isn’t infinite nor are budgets. Moreover this is 2025 not 1825 with a huge array of options to view/borrow/purchase/swap literary works.
All good points. Yeah I use the interlibrary loan system myself. As I said mixed feelings.
It’s obvious, upon thought, that curation defines the major difference between a library and a truck terminal for a paper drive.
Duck Duck Go suffered the same ignorant blowback a few years ago, when they announced they would be introducing new ranking algorithms to counter Russian disinformation re the Ukraine war. People complained that they had switched to DDG to avoid being told what to think, and that violated some kind of promise. DDG explained that their core promise was that your searches would be secure and anonymous, not that they would ever be uncurated. As they explained, it would be counterproductive to give the ravings of a private blogger in Lithuania with three followers first-page ranking over respected websites patronized by millions. And they had a good point. If you really want uncurated results, there’s always Yandex — try it for a few days, but keep some haloperidol on hand.