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What Has the Supreme Court Said About When Government Libraries May Remove Books?

[Reposted because comments didn't work on the earlier version.]

The answer, it turns out, is that the Supreme Court has never given an answer. The issue was indeed before the court in Board of Ed. v. Pico, but — despite some people's reading of the case — the Court did not resolve it.

All the Justices in Pico seemed to agree that removing books for some reasons would be constitutional, for instance if the books used vulgarities that were reasonably seen as inappropriate for the books' target age group. Four Justices took the view that removing books based on disagreement with the ideas that the books expressed would be unconstitutional; they therefore voted to affirm the appellate court decision, a decision that sent the case back to trial court for factfinding on the motivation for the removals. But four other Justices took the view that a government's removal of books from its own library was constitutionally permissible (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans), and thus no further factfinding on the true motives was necessary.

That leaves one Justice, Justice White. He did concur in the judgment, voting to affirm the lower court decision that sent the case down for factfinding. But he expressly declined to endorse the constitutional view of either group:

The District Court found that the books were removed from the school library because the school board believed them "to be, in essence, vulgar." Both Court of Appeals judges in the majority concluded, however, that there was a material issue of fact that precluded summary judgment sought by petitioners. The unresolved factual issue, as I understand it, is the reason or reasons underlying the school board's removal of the books. I am not inclined to disagree with the Court of Appeals on such a fact-bound issue and hence concur in the judgment of affirmance. Presumably this will result in a trial and the making of a full record and findings on the critical issues.

The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case. If, for example, the District Court concludes after a trial that the books were removed for their vulgarity, there may be no appeal. In any event, if there is an appeal, if there is dissatisfaction with the subsequent Court of Appeals' judgment, and if certiorari is sought and granted, there will be time enough to address the First Amendment issues that may then be presented.

I thus prefer the course taken by the Court in Kennedy v. Silas Mason Co., 334 U.S. 249 (1948), a suit involving overtime compensation under the Fair Labor Standards Act. Summary judgment had been granted by the District Court and affirmed by the Court of Appeals. This Court reversed, holding that summary judgment was improvidently granted, and remanded for trial so that a proper record could be made. The Court expressly abjured issuing its advice on the legal issues involved. Writing for the Court, Justice Jackson stated:

"We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts. While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.

"Without intimating any conclusion on the merits, we vacate the judgments below and remand the case to the District Court for reconsideration and amplification of the record in the light of this opinion and of present contentions."

We took a similar course in a unanimous per curiam opinion in Dombrowski v. Eastland, 387 U.S. 82 (1967). There we overturned a summary judgment since it was necessary to resolve a factual dispute about collaboration between one of the respondents and a state legislative committee. We remanded, saying: "In the absence of the factual refinement which can occur only as a result of trial, we need not and, indeed, could not express judgment as to the legal consequences of such collaboration, if it occurred."

The Silas Mason case turned on issues of statutory construction. It is even more important that we take a similar course in cases like Dombrowski, which involved Speech or Debate Clause immunity, and in this one, which poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here. I therefore concur in the judgment of affirmance.

The Court's fractured decision in United States v. American Library Ass'n — where there was also no majority opinion — doesn't resolve the issue, either. And no other decisions outside the library context dictate, or in my view strongly suggest, a result. If the library were treated as a "designated public forum" that's generally open for a nearly limitless variety of speech, then the library wouldn't be able to set up viewpoint-based restrictions on such speech. But library shelving decisions have never been treated as such a forum, because the choice of what books to select in the first place inherently involves some content-based and often some viewpoint-based judgment. There's no caselaw that squarely tells us whether there are nonetheless constitutional constraints on such judgment, or whether removal decisions are constitutionally different from selection decisions.

In some ways, NEA v. Finley is somewhat on point, because it too involves government action that aims to impose some quality judgments, and that is inherently content-based; and Finley does suggest that "invidious viewpoint discrimination" in such judgments may be unconstitutional, though presumably non-invidious viewpoint discrimination would be permissible. But Finley's point is just a suggestion — the Court specifically stresses that "we have no occasion here to address an as-applied challenge in a situation where the denial of a grant may be shown to be the product of invidious viewpoint discrimination," and while there's also wording there that suggests such invidious viewpoint discrimination would be impermissible, there's no square holding. There is also no definition of when viewpoint discrimination becomes "invidious," and it's not clear to what extent the Finley case, involving arts grants, would carry over to the public library context (and especially public library books aimed at children).

(Note that Pico was a school library case, and one could certainly argue that decisions as to other public libraries, and especially the adult-aimed collections of those libraries, are constitutionally different from decisions as to school libraries or as to the children's collections of other public libraries. But while this isn't an implausible argument, it is again not one that is firmly supported by existing precedent.)

So all this should make clear, I think, that there's no answer from the Supreme Court on the subject; nor to my knowledge is there a broad and firm consensus of lower courts. My tentative sense is that, when it comes to shelving and removal decisions, then-Justice Rehnquist's argument in Pico is the more persuasive one, at least as to the decisions in the inherently content-based field and often viewpoint-based field of what is on the library shelves (though not necessarily as to Internet access decisions, which could be content-neutral and especially viewpoint-neutral). I also tend to agree with David's view on whether such removal decisions violate basic libertarian principles, and with Dale's analysis of the specific controversy — involving Gov. Palin — in which the subject has most recently arisen. (I also think it's quite proper for people to fault certain kinds of book removal decisions on the grounds that those decisions show narrow-mindedness, or deny library patrons — including children — valuable information, and are thus improper even though they aren't unconstitutional or even more broadly rights-violating. Of course, as with many ethical judgments, such a judgment will turn considerably on the details of each case.)

But my point in this post is the narrower one, albeit one on which I think I can be more helpful: Contrary to what some have said, the Supreme Court has not decided whether and when a government-run library may remove books based on their ideas.

Related Posts (on one page):

  1. What Has the Supreme Court Said About When Government Libraries May Remove Books?
  2. "Bookbanning":
  3. Did Palin try to ban books from the local library?
Splunge:
How the heck are you going to come up with a rule about what books can and cannot be removed without coming up with a similar rule about what books should and should not be bought in the first place? Aside from the logical consistency issue, if you don't, you merely force all those social forces concentrated on removal to remove themselves, so to speak, to the point of acquisition, with the only net effect probably a considerably greater inertia in acquiring books. Boy, that's a win for the children, huh?

And if you do attempt to define both rules, then you've got the Court essentially defining in detail the book content of the public library, a monumentally stupid and onerous task for it, akin to the disaster that was forced bussing.

Besides that, the entire argument seems quaint, a relic of the mid 20th century. The public library as a dissemination point for serious ideas is obsolete. What 21st century child o' the Internet Age goes the library to research a school paper, or even just pull some random book from the shelves for edification? Our local public libraries have survived only by pushing their nonfiction into some dusty corner, and replacing it with popular magazines, romance and mystery novels, CDs and movies, and acres of public Internet access computers.

To be sure, there's still the school-age Berenstain Bears section, doing well -- but is that what we're talking about? Evil collectivist (or anti-gay, whatever) ideas being insinuated into Thomas The Tank Engine board books? Seems unlikely.

Tempest in a small and rapidly shrinking teapot, this. Just the kind of thing over which those with intellectual OCD like to agonize.
9.15.2008 6:25pm
Armistead (mail):
Splunge,

I think your assessment would be much more credible if there was empirical data to back it up. The usage of public libraries has gone up during the Internet Age. In fact, some libraries have seen their circulation increase over 50% in the last ten years. The presence of internet terminals in public libraries is not a demonstration of the decreasing value of print materials. Rather, it is a testament to the resiliency of libraries and the services they provide to an increasingly fickle public.
9.15.2008 7:57pm
Michael B (mail):
Not a complaint, an observation only.

We've now had five or six posts concerning book banning, a subject that reflects the non-controversy and non-scandal related to Palin as mayor and governor. No books were banned. Not one. Not by Palin, not by anyone else.

By contrast, Michelle Obama's salary moved from $121,000 to $317,000 during a one year period wherein Senator Obama attempted to attach a $1,000,000 earmark to a legislative bill, an earmark for his wife's employer.

So even in the notable quarters in the blogosphere the emphasis upon the story w/o legs and w/o substance reflects the MSM's emphasis - while the story with legs likewise reflects the MSM's de-emphasis.
9.15.2008 10:30pm
FlimFlamSam:
I think the government can constitutionally do whatever it wants in libraries. I even think that a Democrat library board could remove Republican books, etc. Libraries are government-as-proprieter, maybe even government-as-speaker.
9.15.2008 10:50pm
TruthInAdvertising:
"I think the government can constitutionally do whatever it wants in libraries."

Want to test that in Court? Eugene may be correct that there's no defining case for removing books in public libraries (and I don't think Pico is much help since it deals with school libraries with all of the baggage that goes along with "in loco parentis"). But I doubt the courts are going to go along with the idea that library boards or other government officials can engage in viewpoint discrimination.

"We've now had five or six posts concerning book banning, a subject that reflects the non-controversy and non-scandal related to Palin as mayor and governor. No books were banned. Not one. Not by Palin, not by anyone else. "

Palin's actions during her time on the City Council and as Mayor made it clear that she was interested in removing books from the library based on their content. Someone who thinks that certain books should be removed from the shelves, who asks about the process of removing books and who fires the town librarian is someone who I wouldn't be interested in seeing serve in any government position. Based on some of the commentary around Palin's actions, there's a serious disconnect between what some people think librarians do and their actual role in the library. As a rule, librarian jobs are not political patronage jobs. Most librarians have Masters in Library Science or a related field. This isn't a role you fill with whomever was a top contributor to your campaign. The fact that Palin was willing to fire this person because she wasn't "loyal" to her administration is quite disturbing. I've yet to read any defense of Palin's actions and the fact that she was forced to re-appoint the librarian after firing her shows that the local residents didn't think much of Palin's actions either.
9.15.2008 11:25pm
David M. Nieporent (www):
Palin's actions during her time on the City Council and as Mayor made it clear that she was interested in removing books from the library based on their content.
What "actions" would those be? Her vigorous non-banning of books? You can't point to a single "action" she took.

As a rule, librarian jobs are not political patronage jobs. Most librarians have Masters in Library Science or a related field. This isn't a role you fill with whomever was a top contributor to your campaign. The fact that Palin was willing to fire this person because she wasn't "loyal" to her administration is quite disturbing. I've yet to read any defense of Palin's actions and the fact that she was forced to re-appoint the librarian after firing her shows that the local residents didn't think much of Palin's actions either.
She wasn't "forced" to do anything, and local residents had nothing to do with it. The librarian was never fired, so she didn't need to be "re-appointed." Palin gave her two weeks notice, and the very next day after meeting with her rescinded it.

Palin wanted to merge the library and museum. The librarian opposed that plan. That's a perfectly legitimate reason for wanting to fire her, having nothing to do with 'political patronage' or book banning.
9.16.2008 12:53am
subpatre (mail):
Armistead says: ""The usage of public libraries has gone up during the Internet Age. In fact, some libraries have seen their circulation increase over 50% in the last ten years. ... testament to the resiliency of libraries and the services they provide to an increasingly fickle public." "

Circulation of what? Movies and recently-popular novels comprise the bulk of 'circulation'.

On the one hand, there's the libertarian position that libraries should not be competing with Blockbuster or Netflick franchises, reducing magazine or book store sales. Libraries are currently doing that, optimizing 'circulation' and 'door' figures to promote themselves.

On the other hand, old conservatives supported libraries believing the public is served by an institution that disseminates knowledge for all citizens. The trend of modern libraries is to cater to popular tastes, not to elevate, inform or educate.

Most modern public libraries are a specialized branch of public recreation; indoor entertainment for couch potatoes. By doing so, they've forfeited protections possessed by virtue of their role as dispensers of knowlege; they now dispense Blockbusters' video with a different logo at a higher (ultimate) cost.

With no serious mission, no compelling interest, there is little protection against content manipulation.
9.16.2008 1:43am
Pennywit (mail):
I can't vouch for the accuracy of this page either way, but the American Library Association posts a brief (if biased) overview on its Web site. Would have been more helpful if it had hyperlinks.
9.16.2008 3:50am
FlimFlamSam:

But I doubt the courts are going to go along with the idea that library boards or other government officials can engage in viewpoint discrimination.


If libraries are government-as-speaker, viewpoint discrimination is perfectly constitutional.
9.16.2008 8:28am
Brad Ford (mail):
With respect to book selection in public libraries, I have always been at a loss to understand the Constitutional difference between a the librarian (a government employee) and elected government officials determining what books are, and are not, kept in the library.

How is a "liberal" librarian deciding not to carry the National Review in favor of the New Republic any different from a city counsel deciding to spend money on Dr. Suess instead of Little Johnny has Two Mommies?

IMHO -- the elected officials who are ultimately responsible for the library should have final say on what books are, or are not, in the library. Librarians are city employees subject to supervision by elected officials.
9.16.2008 9:58am
Simon Dodd (mail) (www):
While as a matter of natural justice I think government shouldn't weight the scale in terms of what books it provides in its libraries, I must admit to finding the concept of a First Amendment limitation on government's discretion in this area a little odd. The amendment's text forbids Congress from passing laws abridging the freedom of speech. It would be wooden to read that strictly, so we would do well to read the text broadly: the government may not abridge the freedom of speech. We might reasonably boost the level of generality even further, adopting doctrinal tests: when it provides a public forum, the government must be evenhanded, and when it lets him speak, it must let her speak.

I seems to me, though, that we have to climb a lot further up Easterbrook's ladder (see Frank Easterbrook, Abstraction and Authority, 59 U. Chi. L. Rev. 349 (1992)) to make the First Amendment's restrictions relevant here. Ordinarily one would think of the speaker as having First Amendment rights rather than the listener, and presumably, no one is claiming that Ann Coulter has a First Amendment right to have her books purchased and circulated by the Wasilla Municipal Library. If that isn't the claim, then we're already in First Amendment Through the Looking Glass territory: Congress shall pass no law abridging the freedom of listening? To buy into Justice Brennan's Pico theory that there is a penumbraic "right to receive information" protected by the First Amendment, you have to abstract from what the amendment actually protects to an exceedingly fuzzy, amorphous conception of the general concerns that might have animated the framers. There may be cases where such reference is acceptable - where abstraction is reasonably grounded and acknowledges that the principle is at very least tethered by the text. At a certain point, though, don't we have to say "far enough"? Why are we hell-bent on finding Constitutional protections against every bad thing that a politician could contrive to do?
9.16.2008 10:57am
r.friedman (mail):
Sophisticated library opponents simply hire chief librarians with costly habits and pay them out of library funds so there's nothing left for books. See John Roberts' support for former Smithsonian (and Fannie Mae) chief Lawrence Small. See WaPo story and CBS story with links to documents
9.16.2008 12:53pm
Dave Hardy (mail) (www):
Is there any legal distinction to be drawn between removing a book from a library based on content, and a decision of the library not to buy a book in the first place based on its content?
9.16.2008 1:16pm
pauldom:

"Besides that, the entire argument seems quaint, a relic of the mid 20th century. The public library as a dissemination point for serious ideas is obsolete. What 21st century child o' the Internet Age goes the library to research a school paper, or even just pull some random book from the shelves for edification? Our local public libraries have survived only by pushing their nonfiction into some dusty corner, and replacing it with popular magazines, romance and mystery novels, CDs and movies, and acres of public Internet access computers."


I'm getting the distinct impression that some of you don't frequent public libraries. Huge swathes of shelving are devoted to nonfiction: think cookbooks, diet books, exercise books, learn to do x on your computer books, gardening books, repairing your house books, make home/family safer books, more info about x medical condition books, craft books, career prep books, baby care books, travel books, etc. etc. etc. Maybe these don't rise to the level of what you'd consider "serious ideas" but they certainly are important to many Americans. Even the Thomas the Train books reflect a desire by parents to instill in their children a love of reading.

And is there any empirical evidence for the belief that liberal librarians commonly indulge in blatant viewpoint descrimination? My local library has 12 copies of Corsi's _Obama Nation_ and 18 separate versions of all the Ann Coulter titles (e.g., the large print, cd, &cassette versions), 3 copies of The Bell Curve (they used to have more, when it was a best-seller) and yes, a subscription to the National Review.

Maybe I live in some wacko state where public schools really are underfunded and public libraries do their jobs, but I'm getting the impression that some anti-elitists could benefit from actual time spent with the public.
9.16.2008 3:59pm
Armistead (mail):
Thank you, pauldom. That is so true. Having worked in a public library for a number of years, I know how frequently people rely on the public library. There are still huge segments of our population that cannot afford internet access and rely on their public library to provide them the means to find local resources, apply for jobs, develop job skills, and so on.

As a librarian, I agree that the vast, vast majority of librarians are liberals. In fact, among academic librarians, being conservative is almost unheard of. Despite this, public library collections reflect the perspectives, taste, and views of the public they serve. I worked for a public library in a university town in California that has a reputation of being radically left-wing. And yet we purchased every Ann Coulter and Michelle Malkin book (and the Left Behind series, in both English and Spanish) as they would circulate. Libraries use circulation statistics to make their purchasing decisions. Items that do not circulate are often weeded out.
9.16.2008 5:12pm
Rich Rostrom (mail):
Of course libraries can and should exclude or remove books based on their content.

Would you want a public library to stock The Turner Diaries? Or Scientology?

Furthermore... go through the fiction stacks at a major metro library - say the downtown library here in Chicago. There are thousands of obscure novels there dating back to the 1920s and even earlier. Very probably there are works among them that contain vicious racist stereotypes or religious bigotry. Should they be protected from removal?

On the non-fiction shelves, there were lots of books published in the past which expressed views now all but universally condemned: nativism, eugenicism, Communism. Do they get to stay? What about books that are simply wrong - history or science that has been superseded by newer scholarship. Shouldn't such works be removed? (I exclude "classic" works, which are memorable for their influence.)

Librarians discard books every day. Content is often the reason. And there is no right for librarians to be exempt from review by the people, acting through their elected officials.
9.17.2008 2:59am
TruthInAdvertising:
"And there is no right for librarians to be exempt from review by the people, acting through their elected officials."

That's a pretty funny way to describe censorship. Let's call it what it is - elected officials censoring views that they don't agree with and having them removed from the public library. As I said before, let's see the test case for having an elected official dictate the removal of all books of a certain viewpoint and let's see how well that does in the courts.
9.17.2008 11:57pm
Rich Rostrom (mail):
TIA: I thought this was a country was a democracy, where the people's will controls, at least to activities and facilities paid for with the public money.

Apparently I am wrong. There is a sacred caste of public employees whose actions are beyond all external review. No mere outsider may question their authority. If the library staff choose to spend the entire budget on manga, paperback romances, and Spanish-language video, so be it. If they think the works of Donald Goines (look him up) are suitable "young adult" reading: they are librarians, and no mere layman may object.

Certainly not "elected officials", who are pretty much all stupid, ignorant, lying, corrupt, bigoted yahoos. Who, after all, do they represent? The voters? Mostly yahoos, infected with archaic prejudices such as heteronormativism. who cling to religious superstition and guns.

It is the business of libraries to spread knowledge and enlightenment. If they want to provide the public with the Truth About 9-11, Truth about the Zionist Occupation Government, Truth about how AIDS is spread through "Vaccination": any interference would be political censorship, and hence evil. Right?
9.18.2008 5:47am
AnonymousTwo:
If one wants to see what the district courts have actually done with library book removals/restrictions, read the opinions in Sund v. Wichita Falls, 121 F. Supp. 2d 530 (ND Texas, 2000) (can be found on the web here) and Counts v. Cedarville School Board, 295 F. Supp. 2d 996 (D. Arkansas, 2003) (on the web here.)

In the Sund case, the court struck down an ordinance that required the removal of a book to a restricted shelf if any 300 citizens signed a petition. (The mechanism was used to remove the books Daddy's Roommate and Heather Has Two Mommies from the children's room.) In the Counts case, the school board placed Harry Potter books on a restricted shelf and required parental permission to check out the books from the school library.

In both cases, the courts held that the restrictions violated the First Amendment and ordered that the books be returned to the open library shelves.
9.19.2008 3:22pm