The Defense Arguments in Llano Case Are A Threat To Libraries

This case isn’t specifically about library digital content (although the county library did lose its OverDrive account, later replaced by another vendor).

It goes to the very heart of our work, however: will libraries be able to control all their collections, print and digital, or will local (or state) government be able to control what are in our collections, infringing our most cherished values?

The hearing was Wednesday.  You can listen to it  (an hour and ten minutes), if you want: https://www.ca5.uscourts.gov/OralArgRecordings/23/23-50224_9-24-2024.mp3

A quick and greatly simplified summary:

 The attorney defending the county and Florida’s solicitor general (on behalf of 17 states) argue that a 1995 First Amendment decision by this same court should be overturned. That decision said a school board removing a book based on its subject mater was a violation of the Constitution.

 They argue that libraries are funded by the government, that library collections should therefore be considered “government speech,” that the government is not required to be viewpoint neutral, and therefore that the funding agency can control the collection without violating the First Amendment. They further argue that librarians are government agents and cannot make collection decisions without the “government” being allowed to decide what to choose and not to choose.

It seems a considerable leap from saying librarians should be allowed to make decisions to say that, for example, a county government could remove books from a library that the librarians wish to keep. It is, however, a leap that the defense is not only willing but eager to make.

The plaintiffs attorneys argue that libraries are public institutions, that the First Amendment is applicable in them, and that government entities cannot suppress books because of objections to their subject matter.

The argument that library collections are government speech has been shot down in many recent cases in other circuit courts. It is, again, a threat to basic library values. Even the county’s attorney conceded that his argument could lead to libraries that reflect only the limited views of one political party. I live in Maryland, where we are fortunate that our laws wisely say that libraries are to be “established free from political influence.”  The 5th Circuit has some judges who seem happy to support the government speech argument and to disagree with the courts upholding the freedom to read. Their ruling could send this case to the Supreme Court.  An adverse ruling there could be a wedge nationally to let local officials remove any books they don’t like, disadvantaging everyone who would like to explore ideas freely in a pluralistic society.

For a deeper exploration, please see  https://www.publishersweekly.com/pw/by-topic/industry-news/libraries/article/96015-on-appeal-llano-county-seeks-book-ban-ruling-that-would-upend-public-libraries.html

The last two paragraphs of this piece are worth consideration: 

EveryLibrary founder John Chrastka told PW that if the court buys the government speech argument, it would be as big as overturning Miller, the 1939 Supreme Court case that sets forth a test for what constitutes obscenity.

"Allowing the Government Speech Doctrine to creep into the management of public libraries will upend everything that a public library is supposed to be," EveryLibrary reps said in a statement on the oral argument. "The outcome of this case will set a crucial precedent for the role of libraries in our democratic society, and it must reaffirm that libraries exist to serve the public’s right to access diverse, lawful ideas—not to promote government-sanctioned ideologies." 

No matter what your political views, if you care about libraries as institutions supporting all in their communities, find a way to voice your support. Speak up locally. Support groups that fight for the freedom to read. If nothing else, sign the EveryLibrary petition. This is about libraries, but even more. It is about freedom. Not the false freedom promoted by groups like the intellectually bankrupt Moms for Liberty, for whom freedom consists of denying freedoms to everyone else. The freedom to read all perspectives to be exposed to ideas and culture without having to pull out a credit card to buy things rather than experiencing them through that great and effective steward of our joint funding, the public library.