Case Summary and Outcome

The United States Court of Appeals for Fifth Circuit affirmed a lower court’s preliminary injunction order (with minor modification) ordering the replacement of books removed from a public library. Patrons of the library had brought the case after the public library in their county had removed seventeen children’s books on the order of a county official who believed that the books were overly sexual. The Court ruled that public libraries cannot remove books based on disagreement with their content, as this violates the First Amendment and the public’s right to access ideas. The Court held that an official violates the First Amendment if they remove a book with the “substantial motivation” to deny access to ideas with which they disagree and found that the books in the case were likely removed because of complaints with the “substantial motivation” to deny access to particular ideas.

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Facts

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Decision Overview

Judge Wiener of the United States Court of Appeals for Fifth Circuit delivered the majority opinion. Judge Southwick concurred in part and Judge Duncan dissented. The main issue for the consideration of the Court was whether it should confirm the preliminary injunction granted by the District court to restrict the defendants from removing the books from the library shelves and catalog.

The patrons argued that their rights under the First Amendment, particularly their right to access and receive ideas, had been infringed. They submitted that access to certain books was unlawfully restricted based on their messages and content and that the books were targeted because the defendants objected to their treatment of sexual or racial themes. The patrons characterized this as “viewpoint discrimination” which violated the Free Speech clause.

The defendants argued that the removal of books was part of “Continuous Review, Evaluation and Weeding” (“CREW”) and that the books were removed by applying “MUSTIE” factors. MUSTIE allows for books to be removed from library shelves if they are inaccurate (“misleading”), damaged (“ugly”), outdated (“superseded”), silly (“trivial”), seldom checked out (“irrelevant”), or available at another branch (“elsewhere”). The defendants argued that the patrons had failed to show irreparable harm as they could access the books using the in-house checkout system and that the preliminary injunction ordered by the district court was overbroad.

The Court confirmed that in reviewing the granting of a preliminary injunction it must examine possible “abuse of discretion, reviewing findings of fact for clear error and conclusions of law de novo.” [p. 7] The requirements for a preliminary injunction are: “(1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) the threatened injury outweighs any harm that will result to the non-movant if the injunction is granted; and (4) the injunction will not disserve the public interest”. [p. 8]

The Court accepted that the facts of the case concerned a “hot-button issue at present” but emphasized that it had decided a similar case, Campbell, in 1995. [p. 8] It described the “crux” of the case as being “the appropriate balance between a library’s necessary discretion in making collection decisions and the rights of its patrons to access information and ideas”, stressing that the First Amendment covers the right to receive information and ideas. [p. 8]

In assessing how the First Amendment could limit public libraries’ “discretion to shape their collections”, the Court referred to the Supreme Court cases of Board of Education, Island Trees Union v. Pico, where that Court had found that “School officials ‘may not remove books from school library shelves simply because they dislike the ideas contained in those books’,” [p. 9] and United States v. American Library Association (ALA) which emphasized “public libraries’ ‘broad discretion’ in shaping their collections.” [p. 11]. The Court noted that in Campbell it had stressed that the key question was the motivation behind the decision to remove a book. It identified three rules: “Librarians may consider books’ contents in making curation decisions”, but that discretion “must be balanced against patrons’ First Amendment rights”, and that those rights include “the right to receive information and ideas”. [p. 11] The Court summarized their position as “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.” [p. 12]

The Court confirmed that “public forum principles” – the requirement to create a public forum for speakers – were not applicable to the present case because the case was brought by patrons of the library and not authors seeking to get their books included in the library’s collection.

The Court explained why it came to different conclusions than the dissenting judge on three issues on the applicability of Pico, Campbell and ALA. The dissenting judge would have found that only ALA and not Pico and Campbell (because of those two cases’ links to school, not public libraries) were applicable to this case, but the Court emphasized that the principles established in Pico and Campbell around school libraries “apply with even greater force” outside of schools because public libraries do not have concerns for curriculum and school environment. The dissenting judge believed that the “substantial motivation test” in Campbell was incompatible with the Supreme Court’s “broad discretion” principle in ALA but the Court highlighted that ALA had a “badly fractured” plurality which “circumscribes its precedential effect” and that “broad” does not equate to “absolute” and that a librarian’s even broad discretion will still be limited by the protection of the First Amendment. The Court disagreed with the dissenting judge that the Campbell principle – that if a librarian removes a book “with the substantial motivation to prevent access to particular points of view” they act unconstitutionally – cannot apply when a court applies a First Amendment strict scrutiny analysis. The Court also disagreed with the dissenting judge who had accepted the defendants’ argument in the District Court that their “actions in selecting books for library shelves constituted government speech” which would give them “extensive discretion” to determine what content is made available to the public; the Court stressed that “the Court has nowhere held that the government may make these decisions based solely on the intent to deprive the public of access to ideas with which it disagrees”. [p. 16-17]

In assessing the preliminary injunction requirements, the Court assessed whether the defendants had likely violated the patrons’ First Amendment rights. It emphasized that the books that were removed were all on the Wallace list, had not been identified for removal before that and that no other books were removed during the relevant period. The Court referred to the District Court’s finding that Milum’s testimony on why the books were removed was “contradictory and unconvincing”. [p. 18] It therefore concluded that the facts support the District Court’s finding that “the books were removed because of the Defendants’ complaints, and that Defendants’ substantial motivation was to deny access to particular ideas”. [p, 19] The Court held that although Milum’s motivation for removing the books was the crucial one, that she removed them on instruction from Moss and Cunningham meant that she “likely ‘adopted’” their motivations. [p. 19-20] The Court also found that the District Court had not committed a “clear error” in rejecting the defendants’ arguments that the books had been removed for MUSTIE reasons. In acknowledging that Milum had not removed all the Wallace List books, and not from all branches, the Court referred to Pico and defined a “substantial motivation” as being one that “when in its absence ‘the opposite decision would have been reached.” [p. 21-22] It also stressed that as this case involved only a preliminary injunction, all that the patrons have to demonstrate is that they have a substantial likelihood of success on the merits in the final proceedings.

On the other requirements, the Court held that the District Court had not erred in finding that the patrons would suffer irreparable harm because the removals prevented the patrons from “anonymously perus[ing] the books in the library without asking a librarian for access” which was a “valid First Amendment injury. [p. 24] It also held that the District Court had not erred in finding that the balance of the equities tipped in the patrons’ favour and so had not abused its discretion in finding that the requirements for a preliminary injunction were met.

The Court accepted the defendants’ arguments that the preliminary injunction was overbroad (because the District Court had ordered that all books that were “removed because of their viewpoint or content” be returned and that the defendants not remove any other books) and impermissibly went further than the relief sought by the patrons.

The Court rejected the dissenting judge’s characterization of it acting as the “library police”, turning the characterization of “library police” back on the defendants.

Accordingly, the Court concluded that “Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree”. [p. 26] It confirmed the District Court’s finding that the patrons had demonstrated a likelihood of success on the merits and the other requirements for a preliminary injunction. The Court modified the District Court’s order to require only that a set of eight, named books be returned to the shelves.

In his partly concurring judgment, Judge Leslie Southwick, disagreed with the District Court’s finding that all the books removed express an idea or viewpoint in the sense required by the caselaw. He noted that the “butt and fart” books expressed “juvenile, flatulent humour” and not an idea or viewpoint and that Campbell permits librarians to remove books “on the belief that the books were ‘pervasively vulgar’ or were not educationally suitable’.” [p. 1-2] He also commented that he would have “no difficulty” in finding the removal of books that promote grooming or sexual activity was permissible. [p. 2] He stressed that whether the “butt and fart” books and In the Night Kitchen and It’s Perfectly Normal did, in fact, promote grooming or contain sexually explicit material was irrelevant as the “subjective motivation of the remover” was the only consideration. [p. 3] He would not have ordered the return of the “butt and fart” books, In the Night Kitchen and It’s Perfectly Normal.

In his dissenting judgment, Judge Stuart Kyle Duncan, described the majority judges as having “appointed themselves co-chairs of every public library board across the Fifth Circuit” and the rules they established in the judgment as lacking “any basis in law or common sense”, the application of which would be a “nightmare”.  [p. 1] He referred to the disagreement between Judges Weiner and Southwick on whether the book, It’s Perfectly Normal should be removed, and said that the “journey into jurisprudential inanity should never have been launched”. [p. 1]

Judge Duncan characterized the majority as establishing four rules: that “libraries ‘may consider books’ contents in making curation decisions’;” that library patrons have the right to receive information and ideas; that a library acts unconstitutionally if its decision to remove a book “is ’substantially motivated’ by the desire to deny ‘access to ideas with which [the library] disagree[s]’;” and that a library is permitted to remove books “based on .. the accuracy of the[ir] content” and if they believe the books are “pervasively vulgar” or not educationally suitable.” [p. 2-3] However, he described these rules as lacking “any grounding in the First Amendment or common sense” and that they would create a “Federal Library Police” within the federal judiciary. [p. 3] He added that the rules cannot be consistently applied.

With reference to ALA, Judge Duncan said that “[i]t has never been the law that the Free Speech Clause bars a public library from selecting or removing books based on content or viewpoint” and that if a library could not do so it would “be a warehouse, not a library”. [p. 4] He also characterized the choice of books for a public library as “government speech”  which means that that “the Free Speech Clause does not constrain a public library’s collection decisions”. [p. 5]

In discussing whether the Court should confirm the District Court’s preliminary injunction, Judge Duncan described a preliminary injunction as an “extraordinary remedy” and said that the only one of the defendants’ “phalanx of arguments for vacating the preliminary injunction” needed to be considered was whether the District Court erred in finding that the “Free Speech Clause bans a public library from considering the content or viewpoint of books when deciding whether to remove them”. [p. 12-13] Judge Duncan stated that ALA stipulates that the Free Speech Clause permits rather than forbids libraries from curating their collections based on books’ content and viewpoints, and described the District Court and majority’s decisions as “mind-boggling”. [p. 16] He said these judges were wrong to apply the principle set out in Stanley v. Georgia of the right to receive information and ideas in a private place to a public library, and that they wrongly applied the Campbell judgment in incorrectly extending a school library context to a public one and distinguishing the decision to acquire books with that to remove them. Judge Duncan identified the majority and District Court’s interpretation of Campbell as prohibiting the removal of a book when the “decisive factor” was a “dislike [of[ the ideas contained” in it as contradicting the Supreme Court’s decision in ALA which confers a “broad discretion” on libraries to determine its book collection; he said this expansion of the Campbell decision would be incorrect. [p. 20-21]

Judge Duncan gave the examples of a librarian choosing to remove the outdated book listing Pluto as a “full-fledged planet” (because Pluto is now categorized as a dwarf planet), the children’s book Little Black Sambo (because of its racist stereotypes) or a book by the Grand Wizard of the Ku Klux Klan (because it portrayed black people as inferior) and said that the majority decision would prohibit those choices. He also rejected the description of a library’s shelves as a public forum which would then require the application of “forum analysis” which requires a “viewpoint neutral” approach to selecting books, and noted that ALA had “rejected the notion that a library’s book collection is a public forum”. [p. 28]

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