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Court Orders Texas Libraries to Restock Transgender, Controversial Books in Kids Section, But Not Sexually Explicit Material

Court Orders Texas Libraries to Restock Transgender, Controversial Books in Kids Section, But Not Sexually Explicit Material

One book, “a sex-education book for 10-year-olds . . . [that] has cartoons of people having sex and masturbating,” will not return, despite one judge’s seeming desire to the contrary.

An appeals court issued a First Amendment decision on June 6, ordering the return of controversial books to public library shelves in the children’s section. The highly fractured court opinion requires libraries in Texas to restock books on trangenderism but not those depicting nudity and sex.

The case arose after community members objected to “pornographic and overtly sexual books in the library’s children’s section,” and libraries removed the objectionable materials in response. Several community members sued.

Litigation in the lower court, which issued a more expansive order to restock the books, continues after the appeal court’s decision and will determine whether the removals violated the First Amendment.

Two judges on the three-judge panel of the Fifth Circuit agreed that books like Gabi, a Girl in PiecesBeing Jazz: My Life as a (Transgender) Teen, and They Call Themselves the K.K.K. must return to library shelves during the ligitation.

These books discuss sexuality and homosexuality, transgenderism, and “the history of racism in the United States,” respectively.

One judge would have ordered books like In the Night Kitchen and It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health to return to library shelves.

It’s Perfectly Normal, a book written for a 10-and-up audience, is replete with cartoons of people masturbating and having sex.

Judge Jacques Wiener, Jr., who would have ordered all books returned, accepted that libraries must engage in content-based curation, such as assessing what will be or is of interest to the community. Wiener, however, argued that the removal decisions were substantially motivated by a wish to deny patrons access to material the censor personally disagreed with instead of because of a lack of community interest:

[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. . . . [A] book by a former Grand Wizard of the K.K.K., which hasn’t been checked out in years and is discovered by a librarian during routine weeding, could be removed based on lack of interest and poor circulation history.

Judge Leslie Southwick agreed in part with Wiener and wrote a partial concurrence. Southwick, however, argued that removing books like In the Night Kitchen and It’s Perfectly Normal was likely constitutional:

I would have no difficulty in allowing the removal of a book from the children’s section on the basis that it encourages children to engage in sexual activity with adults or includes sexually explicit content. At this stage of the case, I find ordering the return of such books to be error.

Judge Stuart Duncan dissented. Duncan chastised Wiener and Southwick for “appoint[ing] themselves co-chairs of every public library board across the Fifth Circuit” by “issu[ing] ‘rules’ for when librarians can remove books from the shelves and when they cannot.”

In Duncan’s view, public libraries’ curatorial decisions were government speech immune from the First Amendment:

A public library’s choice of some books for its collection, and its rejection of others, is government speech. . . . This conclusion is supported by a long line of Supreme Court precedent, as well as authority from our sister circuits. It means the Free Speech Clause does not constrain a public library’s collection decisions.

The opinion:

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Comments

When did judges get to decide what books go in a library?

    4fun in reply to geronl. | June 11, 2024 at 9:53 pm

    Redact them, every page with a black magic marker.
    When the pervert lovers go back to court and the pervert loving judges say they can’t redact them, shred the pages.
    Think like a democrat when it comes to ignoring the courts.

The Gentle Grizzly | June 11, 2024 at 7:09 pm

“OK, Judge. We see your order. Now, come and enforce it.”

thalesofmiletus | June 11, 2024 at 7:12 pm

If a powerful minority (the Progressives) wish to astroturf “community interest” by putting pr0n in the children’s section, that’s just Democracy, bigots.

There is only one kind of person that wants to sexualize prepubescent children. There is also only one appropriate response to the existence of such people.

The court is most cordially invited to go stuff itself.

Curious: a judge ordering that particular books remain in the library. What is the dividing line between curation and censorship? At some point will libraries that don’t shelve this book be required to do so? At some point does this become government-mandated speech? And will this go to en banc or SCOTUS?

LeftWingLock | June 11, 2024 at 8:39 pm

I guess there is a Constitutional requirement to have dirty books in a library. I believes the requirement comes from the penumbra of the dicta from United States v. Williams (2008).

The middle will not hold

George_Kaplan | June 12, 2024 at 2:38 am

Government has some ability to say that certain books may not be in the public sphere, or restricted from access by minors. Libraries may however impose stricter community standards in their selection and deselection practices.

The problem is that many professional librarians veer Hard Left so tend to stock according to Leftist ideology – Christian, Conservative and traditional content out, LGTP, Marxist, and Woke content in.

    Eddie Coyle in reply to George_Kaplan. | June 12, 2024 at 8:26 am

    Librarians go to college, unbelievably I think a Master Degree is required to get anywhere. It can not be a very substantive curriculum so plenty of room for Leftist indoctrination.

ThePrimordialOrderedPair | June 12, 2024 at 3:41 am

[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. . . .

Children are NOT “patrons”.

Sheesh.

And “decision maker” is two words.

National Lampoon, in a Specialty Magazine cover feature (e.g. “Guns and Sandwiches”), offered also “Piddle: A Child’s First Sex Magazine,” which suggests a child’s interest in sex. Polymorphous perverse, said Freud.

E Howard Hunt | June 12, 2024 at 7:48 am

We had a classmate in grammar school who was caught by a teacher showing us cartoons he had drawn of masturbation. His wealthy parents were in the process of divorcing (extremely exotic for us then). Upon investigation it was found that he had sexually assaulted a girl, so he was expelled from school and put into a psychiatric facility. Today he would be considered an honor student.

Eddie Coyle | June 12, 2024 at 8:21 am

It’s time for normal, rational LGB people to stand up and denounce these actions being done in their name. I have gay friends and family and NONE OF THEM want to sexualize children. They are cowed into silence for fear of being labelled a ‘hater’, which is understandable given their community’s not so long ago history, but when it comes to children, such caution needs to be cast aside without hesitation.

Eddie Coyle | June 12, 2024 at 8:24 am

Easily done act of civil disobedience, keep this trash in a back room until asked for specifically by an adult. State it is out and will be back in two weeks, we will reserve it for you. Wash, rinse, repeat.

Antifundamentalist | June 12, 2024 at 8:51 am

Since when are libraries required to spend their money on specific books? Since when are libraries required to put donated books into circulation?
When has it Ever been okay to put books explicitly depicting nudity and sex into the Children’s section of the library?

I was very much “live and let live” person most of my life. I don’t care what church you do/don’t go to (my first battle with my family), I don’t care who you date. I don’t care how you dress. If you want to call yourself Shirley when Your birth certificate says James – Fine, a lot of people have nicknames. Just as long as you mind your business and don’t insist that I have to participate.
But now the lunatics take over the asylum and are insisting that we are all inmates. Women should not have to compete against Men who couldn’t succeed in their own legues. No woman should be confronted with Male genitalia in women’s-only spaces. And No preteen child should be confronted with sexual content in the children’s section of the library!

Capitalist-Dad | June 12, 2024 at 9:49 am

Our brain dead dictator of a president bragged about “getting around” the SCOTUS decision that student loan forgiveness was unconstitutional, so fortunately for Texas that precedent says it can tell the federal appeals court to pound sand.

destroycommunism | June 12, 2024 at 12:40 pm

WAITTTT

WHOA!!!

IF YOU ARE SAYING THIS BOOK:

It’s Perfectly Normal, a book written for a 10-and-up audience, is replete with cartoons of people masturbating and having sex.

was in a school library or children at a public library had access to this then

THAT IS DISTRIBUTION OF P 0RN TO CHILDREN

and why would the schools or gov official who allowed this NOT BE BROUGHT UP ON CHARGES???

you cant distribute p 0rn to children

destroycommunism | June 12, 2024 at 12:46 pm

courts get to decide b/c

legislators by and far fear touching the subjects that we pay them to do so

so they leave it up to the courts

why doesnt the GOP OUT THOSE WHO WANT THESE BOOKS IN SCHOOLS/LIBRARIES??

the left outs kids who sing the actual lyrics to songs
the left protects criminals by not allowing ( and now the police have taken that over so no one will dare challenge it) pictures or names to be shown
unless of course they want to ..straight whitey

THEY HID that trans manifesto forever

take back your country b/c its not going to get easier

I am angry. Those books are sexually explicit. Even if they weren’t libraries make decisions every day over which books will be made available. They frequently cull materials to make room for more or because of low checkout rates. None of this is considered a violation of the First Amendment. It is not the duty of a library to make any requested material available.

The people who were pushing for this decision are most likely the ALA who (if memory serves) balked at the very notion porn should not be readily available to underage patrons.

One obvious solution is to remind taxpayers how libraries are funded and withdraw all but the funding to keep the building open.

“Wiener, however, argued that the removal decisions were substantially motivated by a wish to deny patrons access to material the censor personally disagreed with instead of because of a lack of community interest:”

Re: Community interest. Is it not also a valid community interest to keep sexually explicit or other age inappropriate materials off the shelves of the children’s section of a library. As far as I know there was nothing keeping libraries from making those titles available to parents who in turn would be free to share (G-d forbid) them with their own children.

Protecting children (especially when it comes to exposure to sexual matters) has long been a valid interest. There are a slew of laws just for that reason. Perhaps the judge would like a look-see at age of consent laws. G-d spare us from such idiots.

Since leftists can’t be trusted to be reasonable human beings, maybe it’s time to stop government funding of government libraries?