The 5th Circuit Texas Library Massacre

   
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The legacy media will call our office for comment for various reasons. Of course, one of them is “Banana” Jones’s feverish promotion of her upcoming book release, “That Librarian.” In every interview she manages to get, she drones on about her difficult choice to defend controversial children’s library books. You know, we’re meanies for showing you the smut in the library. She hasn’t been discussing the year-old $25,500 judgment against her, which has been accruing thousands of dollars in “judicial interest” ever since. But we’re not here to talk about that. We are here to talk about the 5th Circuit’s Library decision.

Their ruling implies that Alabama, Louisiana, and Texas library policies will now be overseen by the “Library Police” thanks to two judges’ decisions in the U.S. Fifth Circuit Court of Appeals. We can call this chapter in the battle for sanity in our libraries “The Texas Library Massacre.” It’s unclear whether Louisiana State Librarian Meg Placke and her State Board of Library Examiners should be anticipating the applications of Judges Leslie Southwick and Jacques Wiener, Jr. because both Southwick and Wiener presently sit as Appellate Judges way over in Texas.

Another significant mystery is why the 5th Circuit library decision is being taken so seriously, given that neither judge has the esteemed academic qualification of an MLIS degree! Likewise, there are still questions about whether they will resign their commissions to oversee the library systems of all three impacted states. Regardless, they are the new, self-appointed library police, and you should consider directing any future library material queries to their attention.

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“Judge, not Librarian”

Judge Stuart Duncan declined to appoint himself to the newly established 5th Circuit library police force. And with sound reasoning. He dissented from the opinion of Southwick and Wiener in a recent case out of Llano County, Texas. The opening line of Judge Duncan’s dissent reads, “The commission hanging in my office says ‘Judge,’ not ‘Librarian.’”

The massacre stems from August of 2021 when three residents complained of “pornographic and overtly sexual books in the library’s children’s section.” Does that sound familiar? Anyone? Bueller? This must be the sequel to that upcoming book release, Banana Jones and the Lost Crusade. After the complaint was lodged, the books were removed from the shelves. The librarian director who purchased them thought they were “age-appropriate,” but Judge Ron Cunningham of the County Commissioner’s Court, which has general supervision of the library, disagreed.

A few months later…

A few months later, another complaint was lodged, and this time, Judge Cunningham issued a directive to remove all books from the shelves that “depict any type of sexual activity or questionable nudity.” Those books had been identified from a list of objectionable materials compiled by Texas Representative Matt Krause, which he termed “pornographic filth.” The books were reviewed by Llano County Library staff, and seventeen were removed, all of which appeared on the list.

A new Library Board was established in January of 2022. They implemented changes, including requiring the library director to seek approval before purchasing new materials. This is the part in the story where the leftist quacks show up. Seven “patrons” of the library brought suit, alleging that removing these seventeen books violated the First Amendment. District Court Judge Robert Pitman of Austin, Texas, a Barack Obama appointee, held that the Free Speech Clause bans a public library from considering books’ content or viewpoint when deciding whether to remove them.

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The Free Speech Clause IS NOT Applicable

Judge Duncan, a native of Baton Rouge, Louisiana, properly pointed out that the First Amendment is not applicable in this situation. We should all read it again because its original intent and meaning are continuously distorted. Our public schools teach our children that the Constitution is a “living document.” It is to be interpreted in the times we live in. No, it should not be interpreted in that way!

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assembly, and to petition the Government for a redress of grievances.”

So, what speech did Llano County abridge by removing books from the shelves of the County Library System? NONE! There is no violation of the Constitution. Here again, we find ourselves at a crossroads between federalism and the United States. Do we have top-down or bottom-up governments in this country? Is the federal government supreme or subservient to the sovereign states? Liberty lovers know the answers to those questions!

Curation is Censorship?

If removing books from the shelves of a public library violates the First Amendment, then so is the long-held library practice of curation. Categorizing books by topic and placing them on the shelves next to similarly topiced books could also be a violation if the reason for doing so is in any way based on content.

But the insanity doesn’t stop there. What about the books in storage? Censorship! Under this standard, all books in the collection must be available. What about the old, worn, and tattered books added to the discard heap? Censorship! And what about the books the library didn’t purchase? Censorship! It is now necessary for every single library branch (in Alabama, Louisiana, and Texas) to possess a copy of every single book ever written in the world and to ensure they are available to the public at all times.

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Are we even able to set library hours anymore? It seems like that, too, would be a form of censorship! Instant access to everything, all the times, is the new standard. It looks like those library policemen have much work ahead. It’s time to trade in that black robe and golf course membership.

How did the Court reach such ridiculous conclusions?

Exactly how did 5th Circuit Librarians Southwick and Wiener reach such ridiculous conclusions? First, they probably didn’t learn Constitutional law in law school. But more likely, they or their staff craftily tried to twist existing precedents to reach a desired outcome.

To do so, they relied on a 1969 case – Stanley v. Georgia. In Stanley, the court recognized a person’s right to view obscene books and films in the privacy of their home. This is the first big area of contention in the applicability of this case. The public library is a “public place.” Your private residence is a “private place.” Would any sane or competent Judge really believe these two situations are the same?

The court also erroneously applied the 1995 decision of Campbell v. St. Tammany Parish School Board. Did you read that correctly? St. Tammany Parish School Board. As Judge Duncan pointed out, the Campbell case addressed the “unique role of the school library.” Additionally, the application of Campbell would counter the 5th Circuit library decision in yet another case, the 2003 U.S. Supreme Court decision in United States v. The American Library Association, Inc. While Campbell prohibits removing a book from a school library if the “decisive factor” is “dislike of the ideas contained in the book.” However, the ALA case recognizes public libraries should have “broad discretion to decide what material to provide to their patrons.”

This 5th Circuit library decision wants to apply both standards simultaneously. According to the library police, there is broad discretion in deciding what materials to provide patrons, but that decision can’t be based on the ideas contained in the book. So, how exactly does the library determine what materials to provide patrons if they’re disallowed from examining their contents?

Two Incompatible Standards

The 5th Circuit library police are also confused by that question. And so are the quacks that filed the suit. According to them, the First Amendment forbids librarians from removing books based on disagreements with their “viewpoint.” But a hypothetical question asked to the Counsel for the plaintiffs during oral argument revealed something rather interesting:

Q: Let’s say a new librarian comes in and discovers on the shelves a book by a former Grand Wizard of the Ku Klux Klan. The book explains why black people are an inferior race. So she removes it from the shelves. Is that viewpoint discrimination? And, if so, is that unconstitutional?

A: In your hypothetical, Judge Duncan, why did she remove it from the shelves?

Q: Because she found that idea offensive. That black people are inferior.

A: If that was her substantial or . . . decisive motivation, then yes, your honor.

Q: Really? Really?

They really want everything to be available to everyone all the time. Contemporary community standards are not relevant to these people. In fact, one could argue whether any standard of normalcy applies to these people.

How do we apply these rules?

5th Circuit Library Police Southwick and Wiener have invented extremely complex rules which were recapitulated by Judge Duncan:

  • Rule 1. Libraries “may consider books’ contents in making curation decisions.” Op. 11 (citing ALA, 539 U.S. at 204 (plurality)).
  • Rule 2. However, patrons have the “right to receive information and ideas.” Ibid. (quoting Stanley, 394 U.S. at 564).
  • Rule 3. A library violates that right if its decision to remove a book is “‘substantially motivated’ by the desire to deny ‘access to ideas with which [the library] disagree[s].’” Id. at 11–12 (quoting Pico, 457 U.S. at 871 (plurality)).
  • Rule 4. But a library can remove books “based on . . . the accuracy of the[ir] content,” id. at 15, or “based on a belief that the books [are] ‘pervasively vulgar’ or on grounds of ‘educational suitability,’” id. at 21 (quoting Campbell, 64 F.3d at 188–89).

In the words of Judge Duncan: “These rules are ill-conceived, self-contradictory, and impossible to apply.”

What is the answer to all this insanity?

Federalism is a good start. Real federalism, that is. Not the type of federalism people give lip service to when they’re running for office under other popular labels: “conservative,” “second amendment advocate,” “pro-life,” “small government,” and “lower taxes.” And you fall for it every time!

Federalism can again be explained by quoting Judge Duncan: “…the Constitution does not deputize federal judges as the Library Police.” There it is! Where in the Constitution did the sovereign states give the central authority control over parish or county libraries? They didn’t. But the Commerce Clause allows the federal government oversight over interstate commerce because the books crossed state lines… NO! The Constitution’s supremacy clause makes the central authority superior to the states… only when they are acting in furtherance of the specific enumerated powers of the Constitution!

Someone needs to stand up to this insanity, and Texas is just as good a place as any. So, let’s play devil’s advocate, shall we? What would happen if the State of Texas ignored the District Court and Appellate rulings? Would they be held in contempt? According to the anti-commandeering doctrine, the federal government can’t conscript state actors to do their bidding any more than the federal court can appoint themselves as members of local library boards!

What would happen if Llano County decided they would no longer put up with the insanity of the overreaching federal authorities and shut down the library system completely? What would happen if people really stood up to this insanity? The enemy among us would be driven from this land!

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