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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