Two Important Wins
/RF has—rightly!—pointed to the threat that the 5th Circuit Court of Appeal’s ruling in the Llano Case poses for libraries. Utterly contemptuous of just precedent, based on an intellectually bankrupt concept of library collections as “government speech,” and reeking of political partisanship, it is never the less but a small step from a Supreme Court of dubious judicial independence. It is difficult to celebrate against such a dubious backdrop, and yet two recent decisions give cause for dancing in the stacks and in the cyberspace of library library digital collections.
As noted by Andrew Albanese in Words & Money (well worth a look and even a subscription, and we at RF get not benefit from saying so), Judge Patricia Giles in the Eastern District Court of Virginia issued a preliminary injunction against book removals at school libraries on military bases. The reason for the injunction upholds precedent and undercuts the whole government speech claim.
Defendants attempt to circumvent the First Amendment entirely by asserting that the removal of books from DoDEA libraries constitutes government speech. On Defendants’ theory, “the inclusion, or exclusion, of certain materials reflects DoDEA’s expressive act of speech that it wishes to convey to its audience—here, schoolchildren.” Therefore, Defendants contend that as DoDEA’s speech, library curation is exempt from the First Amendment. The Court is unpersuaded.
As Albanese explains, the judge continued with this statement about school libraries and their users:
[They] “have historically been loci of intellectual freedom. Viewing public school libraries as places of academic freedom and intellectual pursuit conflicts with the United States’ notion that school libraries represent government speech. It is furthermore doubtful that the public—or DoDEA students, for that matter—perceives the books in school libraries as conveying a government message.”
It isn’t difficult, even leaving aside students’ implied right to pursue knowledge free from government oversight:
Does every book in the collection represent the government speaking, even those that contradict each other?
Does removing a book constitute speech—isn’t it the opposite of speech, since it is only removing a voice and saying nothing?
How does any one government agency, whether local, state, or federal, get to remove books based on its ideology without engaging in government censorship of ideas and so violating an oath to uphold the Constitution?
The other win is Judge Alan D. Albright’s ruling in the U.S. District Court for the Western District of Texas for a permanent injunction against Texas House Bill 900—a bill which would have had Texas State Library set up content standards and book ratings that all school vendors would have to use for all their materials. The judge ruled that 990 failed to “provide guidance on what community standard could apply to the whole state, ignored the three-part Miller test for obscenity, allowed too much power to the state to control speech, engaged in prior restraint of speech, and, in short, was too vague and in any case unconstitutional.
One can hope this is a stake through the heart of 990 and it does not rise again.
To state the obvious to anyone who is not blinded by disinformation or engaged in propaganda, we librarians don’t stock pornography. We are not anti-parent. We do want balanced collections that reflect everyone in our communities. Our collections don’t tell anyone what to think, but they may include facts, historic or current, that some don’t like. Don’t like it, don’t read it—but reading something one disagrees with is often the most active of readings. Instead of removing books, dear government officials, instead as individuals and not part of your official duties, recommend what you would like to see in libraries. Those titles will get a fair hearing The answer is more speech, not less. Be a library user, no more but no less. Your views are no more important than those of anyone else who walks through our doors, or checks out a digital title.