book ban – Techdirt (original) (raw)

Settlement In Florida Book Ban Lawsuit Means A Bunch Of Books Are Headed Back To School Libraries

from the unburning-books dept

Florida’s legislative antipathy towards free speech and general overall bigotry has generated plenty of bad laws and plenty of fully justified lawsuits. Earlier this month, the state’s quasi-book bans became the defendant in a federal lawsuit filed by multiple big-name publishers. But that was just the latest lawsuit, and the first to actually sue the state itself.

Plenty of other litigation is underway, targeting individual counties that have removed books from schools due to book challenges (over-)enabled by the state’s anti-speech laws. But there’s finally a little bit of good news to report. A lawsuit filed on behalf of two authors and two parents against Nassau County and its school board has resulted in a win for the plaintiffs. As Politico reports, lots of books that should have been removed under the (extremely loose) standards of the law are being placed back on the shelves of school libraries.

A northeast Florida school district this week agreed to restore 36 books that were challenged and previously pulled from campus libraries in a settlement of a federal lawsuit fighting how local officials carried out the state’s policies for shielding students from obscene content.

The settlement reached by Nassau County school officials and a group of parents, students and the authors of the removed children’s book “And Tango Makes Three” marks a significant twist in the ongoing legal battles surrounding Florida’s K-12 book restrictions, which have been derided as “book bans” by opponents. Under the agreement, that book and others such as the “The Bluest Eye” by Toni Morrison and the “The Clan of the Cave Bear” by Jean Auel will once again be available to students after being removed last year.

None of these fit the legal standards for obscenity. If they did, they would have been removed under existing obscenity laws, rather than only recently removed because some bigoted jackasses, enabled by the new law, applied the pressure needed to remove content they don’t like.

Nope, this is just codified hatred that allows people to decide no one should have access to books they don’t personally care for. The dumbest part of this is probably the removal of “And Tango Makes Three,” which contains nothing even remotely resembling “obscene” material. This is from law firm Selendy Gay’s statement on the lawsuit settlement:

Significantly, the Board acknowledges in the settlement that Tango has pedagogical value, is appropriate for students of all ages, and contains no “obscene” material—facts that another Florida School Board—in Escambia County—is still contesting. The Board’s acknowledgement makes good sense: since its publication in 2005, Tango has been a highly awarded children’s book and has been lauded by educators and childhood development experts. Tango, which tells the true story of a same sex penguin couple who form a lasting pair bond and together adopt, hatch, and raise a happy and healthy chick, conveys important themes about family responsibility, adoption, LGBTQIA+ families, and natural science to which all students should have access.

Just the same old bigotry, but with a new law to abuse. No one contesting this book truly believed the material was “obscene.” They just don’t believe any student of any age should have access to a book that contains a positive depiction of a same-sex relationship.

And it’s just blatant racism driving some of the other book removals:

These 35 [challenged] books include significant works by Toni Morrison, Jonathan Safran Foer, Alice Sebold, Jodi Picoult and Erika Sanchez, which address racism in America, as well as the life experiences of immigrants, first-generation Americans, trans Americans and other underrepresented communities and individuals.

It’s also the same old bigots. The statement from the law firm points out that all 35 of the books removed were challenged by a of collective censorial asshats calling themselves “Citizens Defending Freedom.” Of course, there’s little about the group that indicates any actual desire to defend freedoms.

Citizens Defending Freedom (CDF) is the latest organization to establish a spoke-and-wheel structure to centrally manage local politicking on a range of hot button conservative issues. Its promise to “PROVIDE materials for home school families” is what first drew my attention, but CDF also claims that chapters in 100 counties will address corruption, school curricula, and “breaches of constitutional liberty.” It’s at 20 active chapters, so it’s got a way to go.

Nevertheless, the organization — just a couple of years old at this point — already takes credit for Nueces County, TX ending its sex education classes, Miami-Dade County introducing a Day of Prayer in public schools, and Lake Wales, FL for creating “Responsible Fatherhood Month.” Its chief opponents, not surprisingly, seem to be the NAACP, George Soros, and Walt Disney.

Yes, nothing says “defending freedom” like removing books from school libraries and forcing public schools to host days of prayer. Or, you know, implicitly threatening Nassau County school officials with arrest for agreeing to return these books to school libraries, as CDF does in its statement in response to the lawsuit settlement:

In response to this settlement, CDF has also made the Nassau County Sheriff aware, highlighting the district’s own admission of the presence of obscene materials in schools and shared the district’s own findings as evidence that they are distributing materials in violation of Florida’s child obscenity laws. “By their own words, the Nassau School District has determined these books violate state law. Yet, rather than take corrective action, they’ve chosen to put them back in the hands of our children. We intend to hold them accountable,” said Sarah Calamunci, CDF Florida State Director.

Keep crying, haters. People who actually care about freedom will continue to combat efforts like these, as well as the unconstitutional laws that enable them. Here’s wishing you loss after loss after loss in the coming months, as federal judges (for the most part) continue to recognize these efforts for what they are: government-enabled censorship of views those in power don’t agree with.

Filed Under: 1st amendment, book ban, censorship, florida, free speech, justin richardson, lawsuit, peter parnell, sara moerman, toby lentz
Companies: selendy gay

Florida The Latest State To Be Sued By Big Name Publishers Over Unconstitutional Book Bans

from the do-they-still-have-a-1st-amendment-in-florida? dept

Far too many states have decided to engage in censorship, urged on by an alarmingly large voting bloc that truly appears to be on the side of fascism, so long as that fascism appears to be on their side.

Since this is, for the moment, still the United States of America, home of several enshrined rights, most of these efforts have been scaled back, dismantled, or blocked completely following challenges in federal courts. Most, but not all. Some laws have survived, and those that have are likely going to be reviewed by a Supreme Court that has been deliberately stocked with the sort of people who think rights should be subservient to their favorite flavor of “conservatism.”

Fortunately, the burden of displacing these laws hasn’t been placed solely on residents of states run by bigoted lawmakers. Major publishers have stepped into the judicial breach. But this time, they’re using their litigation powers for good, rather than attempting to control access to literature by wielding their copyright law cudgels.

Multiple publishers have banded together once again to sue Florida over its censorial book-targeting laws. While not technically a book ban, the law accomplishes the same ends through slightly different means. But, at the end of the day, it’s still just censorship. And it’s still just as unconstitutional. Here’s Richard Luscombe, reporting for The Guardian from Miami, Florida.

“Florida HB 1069’s complex and overbroad provisions have created chaos and turmoil across the state, resulting in thousands of historic and modern classics, works we are proud to publish, being unlawfully labeled obscene and removed from shelves,” Dan Novack, vice-president and associate general counsel of Penguin Random House (PRH), said in a statement.

[…]

PRH is joined in the action by Hachette Book Group, HarperCollins Publishers, Macmillan Publishers, Simon & Schuster and Sourcebooks. The 94-page lawsuit, which also features as plaintiffs the Authors Guild and a number of individual writers, was filed in federal court in Orlando on Thursday.

The suit contends the book removal provisions violate previous supreme court decisions relating to reviewing works for their literary, artistic, political and scientific value as a whole while considering any potential obscenity; and seeks to restore the discretion “of trained educators to evaluate books holistically to avoid harm to students who will otherwise lose access to a wide range of viewpoints”.

The lawsuit targets “book removal provisions” that mainly target books kept in classes by teachers for access by their students, rather than school or other public libraries. Not that those entities aren’t affected. Books present in school libraries are also subject to challenges by state residents. But that’s the pretense that allows state government spokespeople to claim “book removal” mandates are not the same as “book bans.” After all, it’s not the government ordering removal. It’s simply schools and teachers responding to book challenges from other citizens.

“This is a stunt,” Florida Department of Education spokesperson Sydney Booker said in an email to The Hill. “There are no books banned in Florida. Sexually explicit material and instruction are not suitable for schools.”

In retrospect, I’m being far too fair to this government official. He doesn’t really respond to the lawsuit’s allegations. Instead, he crafts a new narrative that suggests the new law changes nothing about the long-held status quo. Sexually explicit material has never been suitable for schools. Therefore, the law being sued over is just… a redundancy?

Except that if it was the same as everything that’s come before it, librarians wouldn’t be pulling tons of books they’ve almost always felt comfortable giving students access to. And teachers wouldn’t be purging their classroom bookshelves of titles they’ve historically used for assigned reading or classroom instruction.

Since it went into effect last July, countless titles have been removed from elementary, middle and high school libraries, including American classics such as Brave New World by Aldous Huxley, For Whom the Bell Tolls by Ernest Hemingway and The Adventures of Tom Sawyer by Mark Twain.

Contemporary novels by bestselling authors such as Margaret Atwood, Judy Blume and Stephen King have also been removed, as well as The Diary of a Young Girl, Anne Frank’s gripping account of the Holocaust, according to the publishers.

The law prohibits books that “describe sexual content” from being made accessible to any student, whether they’re five or eighteen (the law regulates everything from kindergarten to 12th grade). It does not define the term “sexual content” with any specificity and the wording makes it clear that the context of the sexual content does not matter. Then it goes on to equate “sexual content descriptions” with pornography, which is already regulated and forbidden to be distributed to minors. And it goes without saying, no classroom or school library contains any actual pornography.

The first part of the law is so vague as to allow something as innocuous as the phrase “made love” to trigger the book removal process. The second part is redundant in the most stupid way — making something already illegal more illegal?

That’s the basis of the legal challenge [PDF] raised by the publishers, who note the poorly written, purely censorial law has already resulted in the removal of books long considered to be acceptable for most school-age readers. The plaintiffs want these two sections invalidated.

And they should be. They were clearly written by people blinded by their own bigotry — legislators who hope to purge the state’s schools of anything they don’t personally agree with. And they appear to be completely fine with the collateral damage caused by the badly written, unconstitutionally vague law — the disappearance of classic literature they’ve possibly even read and enjoyed themselves — so long as it definitely harms the stuff they hate.

Filed Under: 1st amendment, book ban, censorship, florida, free speech, lawsuit, ron desantis
Companies: harpercollins, hatchette, macmillan publishers, penguin random house, simon & schuster, sourcebooks

Oklahoma Gov’t Revokes License Of Teacher Who Dared To Push Back Against State’s Censors

from the fascism-in-action dept

More and more politicians have decided the only way to make America great is to abandon the things that made America great in the first place. The free and open exchange of ideas is getting shut down. The First Amendment is being remade and remodeled to only protect the ideas those in power are in favor of.

As is always the case when aspiring fascist take the law into their own hands, the first people against the wall are those whose job it is to pass information on to others. That’s why when rulers seek to control the public’s perception, they go after journalists and teachers first. An educated and informed voting bloc won’t vote the “right” way. And if they’re going to hold onto their power, they need to make sure the next generation of voters and public servants only know what their current leaders want them to know.

This is America and yet it feels like something else entirely in far too many states. Between the incessant book bans, anti-LGBTQ laws, and the constant portrayal of the First Amendment as only protective of speech government leaders like, no one insisting on travelling in Donald Trump’s orbit is actually trying to make America “great.” Instead, it appears they’re trying to make America WWII Germany. Or Russia under Lenin/Stalin/Putin.

That’s why state officials now feel comfortable punishing teachers for the crime of… teaching. Here’s Nadia Lathan with more details for the Associated Press.

Oklahoma’s education board has revoked the license of a former teacher who drew national attention during surging book-ban efforts across the U.S. in 2022 when she covered part of her classroom bookshelf in red tape with the words “Books the state didn’t want you to read.”

The decision Thursday went against a judge who had advised the Oklahoma Board of Education not to revoke the license of Summer Boismier, who had also put in her high school classroom a QR code of the Brooklyn Public Library’s catalogue of banned books.

For that, the board pulled her license. And All Boismier did was highlight the ridiculousness of the state government’s actions and provide opportunities for students to discover for themselves the content Oklahoma legislators unilaterally decided they should no longer have access to.

There’s nothing more American than someone fighting censorship, especially when that person is tasked with educating and informing developing minds. But the Oklahoma government doesn’t want Americans teaching in its schools. And it clearly doesn’t want anyone — no matter what age or position — to question the status quo being imposed by the censors in its midst. All it wants is unquestioning equivocation — the sort of thing that, if adopted by the founding fathers, would have resulted in us never referring to them as “founding fathers.” This would still be a British colony, or failing that, a former British colony now presided over by China or strip-mined of anything of value periodically by successive European nations with their own takes on colonialism before settling in for a long run of corrupt governments and military coups.

But we’re not that. We’re the land of liberty. Or supposed to be. Firing teachers for pushing back against censorship isn’t an American ideal. It’s apparently an Oklahoman ideal, although it would be a stretch to think all Oklahomans support this sort of thing.

But one politician has managed to convert a personal vendetta into a chilling effect that will harm teachers, librarians, and other government employees across the state. State Superintendent Ryan Walters has been trying to get Bosmier fired for two years. And now he’s finally succeeded.

Walters, who was a candidate for Oklahoma’s top education office when Boismier was teaching, had called on the board in 2022 to revoke her teaching license in a letter he shared on social media.

“There is no place for a teacher with a liberal political agenda in the classroom,” Walters had wrote. He accused her of providing “banned and pornographic material” to students.

Strong words from the state sup. Strong words indeed. Of course, one feels Walters would be completely supportive of a teacher with a “conservative political agenda” presiding over a classroom of young impressionables. His follow-up statement — that Bosier was fired for “breaking the law” that prohibits instruction on topics related to race and gender (and let’s just take a beat to recognize just how amazingly shitty that law is) — doesn’t add anything that would alter the immediate reaction to this news. That reaction being: the state will always fire people who don’t align themselves with the bigots running the government.

He also added this:

He accused her of providing “banned and pornographic material” to students.

This is just as patently false as it is technically false. Bosmier didn’t provide any material to anyone. In fact, she taped off a section of her own classroom bookshelf to prevent access. Handing the kids a QR code to a list of banned books doesn’t “provide” this material to anyone. All it gives them is a list of books. It’s up to the students to do what they will with that information.

But discussing this in rational terms is useless. These are not rational people. These are people steeped in hatred who have the power to inflict misery on anyone who pushes back against their agenda. The state superintendent doesn’t seem to like any political agenda other than his own and the ones pushed by the party he clearly supports. That’s not how America is supposed to work. There’s supposed to be free and open discussion of competing views — something that encourages younger minds to consider all the facts and draw their own conclusions.

For all the whining about “indoctrination” of students with “liberal agendas,” state officials clearly aren’t opposed to indoctrinating kids. They just want to be the ones doing the indoctrinating. It’s sickening and, unfortunately, it’s not the political career-killer it once was. Now, going as far right as you can — even past the Constitutional confines these people claim to support — is encouraged and rewarded. Many more people will be up against the wall before America (hopefully) moves past this embrace of the worst people to ever hold public office.

Filed Under: 1st amendment, bigotry, book ban, censorship, oklahoma, ryan walters, schools, summer bosnier

Tennessee’s New Quasi-Book Ban Law Results In School Shutting Down Library Right Before Classes Resume

from the hope-you're-happy,-censors dept

Like far too many legislators in far too many states, Tennessee’s lawmakers have jumped on the book banning bandwagon. For years, public libraries and school libraries were stocked at the discretion of librarians and largely operated without a lot of interference from state governments. While attempts to ban certain books happened now and then, there was never a concerted effort to remove wide swaths of literature from public library shelves.

Now, it’s just the sort of thing that happens multiple times on a daily basis. And the number of book challenges and book ban attempts continue to increase exponentially as idiots push their personal agendas using the government’s power to control what content the public has access to.

The law passed by the state legislature doesn’t actually ban books from school libraries. But no matter what the text says, that’s obviously the end goal. (h/t BookRiot)

Passed earlier this year, the bill amended the state’s “Age-Appropriate Materials Act,” signed into law by Republican Gov. Bill Lee in 2022, which, according to the ACLU of Tennessee, requires schools to maintain and post lists of the materials in their libraries and to evaluate challenged materials to determine whether or not they are “age-appropriate.”

So, now every Tom, Dick, and Karen can simply challenge a book and force librarians to review the content to see whether or not it’s “age-appropriate.” The initial bill didn’t even bother to define the few terms it bothered to use to describe the age-appropriateness of content, much less provide librarians with guidelines for handling challenges and/or eventual book removals.

The “fixed” version isn’t much better. While it does provide a list of things legislators think are inappropriate for all students (including those in their senior year of high school, where they’re often treated legally as adults when charged with crimes), the laundry list of inappropriate things is still far too vague.

H.B. 843 clarifies that books containing “nudity, or descriptions or depictions of sexual excitement, sexual conduct, excess violence, or sadomasochistic abuse” are not appropriate for K–12 students, regardless of the context in which those descriptions or depictions appear in the material.

How much violence is “excessive?” Will health textbooks depicting nudity, sexual conduct, and “sexual excitement” be removed from classrooms? Will no one under the age of 18 be able to access content they’re legally allowed to access anywhere else but in a public library?

Perhaps more importantly, what of the Bible?

During debate on the Tennessee Senate floor, state Sen. Jeff Yarbro (D) noted that the bill’s definition of what is “inappropriate” applies to the Bible. “You cannot read the book of Samuel or Kings or Chronicles, much less much of the first five books of the Bible, without significant discussions of rape, sexual excitement, multiple wives, bestiality — numerous things. That’s before you get in just to, you know, very express and explicit descriptions of violence,” Yarbro argued, according to WKRN News 2.

If this point gets pressed, you can rest assured a carve-out will be created for “religious texts,” but… you know… only applied to one specific religion and its main text.

The terms are vague and overly broad. The guidelines for compliance are still mostly nonexistent. And so, at least one school is reopening for the school year with its library closed.

A Wilson County high school is warning teachers to skip classroom libraries and closed the school library over concerns surrounding a new state law.

Under the law, any brief mention of sex, nudity or excess violence can lead to a book ban.

The Wilson County Director of Schools says they are temporarily closing the library at Green Hill High School to sort through books to make sure they get rid of the those that are required to be banned.

So, as teachers and librarians follow the government’s orders to ensure they’re only exposed to content the legislative majority likes, students are going be struggling to comprehend the things they’re learning in civics classes about their fundamental rights.

And all the bill’s supporters have to offer are patently false assertions about how bad things have been for unprotected students prior to the institution of this law.

Senator Pody explains they are trying to protect children from pornography which they’ve found in the past to be available in public schools.

I guarantee you this isn’t true. Notably, Senator Pody offers no times, dates, locations, or any other verification of his claim “pornography” has been found in school libraries or classrooms. Unfortunately, he’s representative of the legislative majority and its ideals. It’s nothing but censorship propelled by bigotry and backed by lies. Caught in the crossfire are the kids and the public school employees who just want to give them the best education they can.

Filed Under: 1st amendment, age appropriate, bill lee, book ban, censorship, libraries, tennessee

Utah’s Book Banning Law Claims Judy Blume, Five Other Female Authors As Its First Victims

from the terrible-people-helping-other-terrible-people-be-more-terrible dept

Utah’s plans to erect a theocracy within the United States continue uninterrupted. While it’s always been more of a religious conclave than a US state for years, thanks to the outsized influence of the Mormon church, the past eight years have seen a much more dramatic drift to the far right of the political spectrum. Utah isn’t the only state in a hurry to violate long-held constitutional rights in the wake of the unexpected elevation of Donald Trump to the office of US president, but it’s definitely feeling a lot more comfortable letting its inherent biases guide its governance and legislation.

The state’s legislators have hung their hats on a slew of bills written with the sole intent of marginalizing anyone and anything not straight, conservative, white, and (if need be) devoutly religious. A theocracy is in the making. The only thing slowing it down is deciding which version of God should be considered the “official” version of God.

The state’s governor, Spencer Cox, has signed off on laws that ban drag shows, govern bathroom usage, and declare protected First Amendment expression illegal. Like several other states run by so-called “conservatives,” Utah has passed laws targeting social media companies and the content carried by public libraries.

All of these laws are being challenged in court, but one of the state’s many recent unconstitutional laws has paid off for the censorial crafters of these lawless laws. As Ella Creamer reports for The Guardian, the state’s book ban law, which went into effect at the beginning of last month, has paid off. Books certain people don’t like are now unavailable to anyone in public libraries across the state.

Books by Margaret Atwood, Judy Blume, Rupi Kaur and Sarah J Maas are among 13 titles that the state of Utah has ordered to be removed from all public school classrooms and libraries.

This marks the first time a state has outlawed a list of books statewide, according to PEN America’s Jonathan Friedman, who oversees the organisation’s free expression programs.

Not exactly the sort of subversive material you’d expect people who claim to “care about the children” to target. Judy Blume, in particular, has been a well-respected mainstay in the tween/teen marketplace of ideas for decades.

As Creamer reports, the state law is the worst kind of law: one that allows a very small minority of people to decide what the rest of the state gets to read.Under the new law, all public school libraries must remove books if they are banned by as few as three of the state’s 41 school districts. This is nothing more than codification of the heckler’s veto — something that’s never not been considered antithetical to First Amendment rights. And those rights include a right to access content, not just create it.

The ban list enabled by the law makes it clear the censors are only targeting very specific content they don’t like, rather than doing anything at all to protect kids from accessing actually harmful content.

Twelve of the 13 titles were written by women. Six books by Maas, a fantasy author, appear on the list, along with Oryx and Crake by Atwood, Milk and Honey by Kaur and Forever by Blume. Two books by Ellen Hopkins appear, as well as Elana K Arnold’s What Girls Are Made Of and Craig Thompson’s Blankets.

Supposedly, these books contain “pornographic or indecent” material. But even pornography is protected by the First Amendment. And “indecent” content isn’t nearly the same thing as “obscene” content, which can be regulated without violating constitutional protections.

Unfortunately, this is just the way things will be going forward in a disturbingly large portion of the United States. Rights are no longer considered rights. They’re just something to be sacrificed on the many altars overseen by legislators who feel it’s not just an obligation, but a God-given duty, to impose their morality on others. Worse, there’s an alarming number of Americans who have enjoyed these freedoms for years cheering on each successive pressing of boot heels to throats, if only because it’s not their own throats at the moment.

But that’s why these rights should be protected by everyone. As the saying goes, if you give the government an inch, it will start to believe it’s a ruler. And that’s not what it is: it is there to serve the public, not the other way around. Cheering on the repression of certain people and ideas just because you don’t personally like them doesn’t make you a good American. It just makes you a shitty human being.

Filed Under: 1st amendment, book ban, censorship, free speech, spencer cox, utah

Fifth Circuit Is Going To Take Another Swing At Its Extremely Messy Library Book Removal Decision

from the hopefully,-it-won't-get-worse dept

I supposed the court had no choice, but I’m always a little wary when the Fifth Circuit decides to take another look at some litigation, especially when it involves certain amendments like the First. Or the Fourth.

This case, however, is a mess. It began (as far too many do these days) with a supposedly concerned citizen griping about some books they’d likely never even looked at, much less read. Rather than approach the Llano County library directly, they took their complaints to county judge Ron Cunningham. The judge, unbelievably, ordered the library to remove the books, including the (and I’m quoting directly here) “books about butts and farts.”

Llano County Commissioner Jerry Moss also inserted himself into this mess by telling the library director to comply with the apparently unlawful order from the judge, telling her to “pick her battles” and that refusing to comply with the judge’s request would result in “bad publicity.”

Having succeeded with getting “butts and farts” books off the shelves, another resident took a list written by former Texas state rep Matt Krause of books he considered to be “pornographic filth” to the judge, who then ordered the library director to remove all books that “depict any type of sexual activity or questionable nudity.” (Matt Krause is exactly the sort of person you think he is, even if this is all you know about him at this point.)

While that order did not clear the shelves of dozens of romance novels, it did result in the removal of LGBTQ+ content, as well as two books about racism in the United States (Caste; They Called Themselves K.K.K.). These are the sorts of books being challenged and banned all over the US right now because the Party of Free Speech has collectively decided no one should be allowed to learn about endemic racism and/or sexual identity.

This resulted in a lawsuit to void the judge’s order and return these books to the shelves. The lower court agreed with the plaintiffs and ordered the books to be made available again. The county appealed and the Fifth Circuit went to work making a mess of it.

The majority partly agreed with the plaintiffs. It said eight of the 17 pulled books needed to go back on the shelves. A concurring opinion pretty much agreed, but said the majority allowed too many books to be reinstated, taking issue with any of “butts and farts” books due to their (alleged) lack of artistic merit.

I disagree, first, because not all of the books express an “idea” or “viewpoint” in the sense required by the caselaw. I am referring to the items we have needed to label for clarity as the “butt and fart books.” Viewpoints and ideas are few in number in a book titled “Gary the Goose and His Gas on the Loose” — only juvenile, flatulent humor. Perhaps a librarian selected the book believing the juvenile content would encourage juveniles to read. Even if that is so, I do not find those books were removed on the basis of a dislike for the ideas within them when it has not been shown the books contain any ideas with which to disagree.

A longer dissent made better points, even if it didn’t really offer a clear path to victory for either party. It said the majority opinion was unworkable, because it applied subjective standards for book placement/removal that wouldn’t have prevented what happened here. Instead, it would make curation almost impossible and, quite possibly, deprive librarians of any control over book selection.

It also pointed out that removing the subjective standards wasn’t much better, which meant librarians could be forced to carry racist content just as surely as it would require them to carry books detailing racism in the United States. The final call, via the dissent, was this: curating public library content is government speech and, as such, the First Amendment standards do not apply. If we want libraries to do the best they can to serve their communities, librarians must be allowed the discretion to select books and decide which books they’d rather not have on their shelves.

The Associated Press is calling this a victory for Llano County officials, even though it’s nothing more than a short order informing the public this case is going to be reheard.

The decision to rehear the case was a victory for Llano County, whose lawyers argued that there were numerous errors in the June 6 opinion, including the incorrect claim that the books had not been returned the shelves pending appeals.

As much as I dread the Fifth taking another swing at this, it kind of has to. The decision it handed down raised at least as many questions as it answered. The underlying problem — a cadre of close-minded individuals intent on ridding libraries of content they don’t personally like — isn’t going to be addressed, no matter what the en banc court decides.

But the least the court can do on the second pass is take a closer look at the directives issued by the county judge, which has nothing to do with discretion and curation, and everything to do with one branch of the government acting as a censor for a different branch of the government. That’s the bigger issue here. Librarians should be allowed to curate content and they should be responsive to complaints from library patrons. But these patrons didn’t talk to the library director. They went straight to a judge and got the judge to issue orders that overrode the discretion of librarians. And unless that gets addressed, this will become a favorite tool for people who think they should get to decide what content everyone has access to.

Filed Under: 1st amendment, 5th circuit, book ban, free speech, jerry moss, library, llano county, ron cunningham, texas

Fifth Circuit Handles A Library Book Removal Case And Makes A Mess Of It

from the right,-but-also-wrong dept

There’s a lot of book banning going on right now in the Land of the Free. It’s mostly localized to certain areas of the country — states and cities overseen by bigots who finally feel they’re allowed to let their freak flag fly (instead of, or on top of the American flag which may or may not be right-side up, depending on recent jury decisions elsewhere in the country).

While it may seem like a groundswell movement seeking to make libraries safe places for certain thoughts, it’s usually just the overly enthusiastic efforts of a few people with massive ideological axes to grind. That’s why even Florida governor Ron DeSantis, who hasn’t met an unconstitutional bill he doesn’t like, had to dial back his state’s book ban-enabling law.

Texas is pretty much like Florida. It’s led by people who cater to the worst of their voting bases, allowing bigotry to run wild while pretending they’re doing this to protect all of their constituents, rather than just appeasing their most hateful ones.

Getting books pulled from libraries in Llano County, Texas led to litigation. And that litigation has led to this wild decision [PDF] from the Fifth Circuit Appeals Court. The Fifth Circuit is often terrible when it comes to the First Amendment. This one, however, gets its mostly right, while still messing things up enough that it’s not going to prevent further stupidity from citizens armed with ideological axes or the libraries that somehow believe these people have opinions worth respecting.

Here’s how this all started:

In August 2021, Llano resident Rochelle Wells, together with Eva Carter and Jo Ares, complained to [county Judge Ron] Cunningham about “pornographic and overtly sexual books in the library’s children’s section.” They were specifically concerned with several books about “butts and farts.” Wells had been checking out those books continuously for months to prevent others from accessing them. As library director, Milum had initially ordered those books because she thought, based on her training, that they were age appropriate. Because of the complaints, Cunningham told Milum to remove the books from the shelves. Commissioner Jerry Don Moss also requested that Milum remove the books, telling her that the next step would be going to court, which would lead to bad publicity, and advising her to “pick her battles.” She followed those instructions and removed the “butt and fart” books from both the library shelves and the catalog.

A few months later, in response to further complaints, [Judge ]Cunningham directed Milum to immediately pull all books from the shelves that “depict any type of sexual activity or questionable nudity.” That direction came via a forwarded email that Cunningham had received from a constituent named Bonnie Wallace. Wallace had sent Cunningham a list of books in the Llano County library system that appeared on Texas Representative Matt Krause’s list of objectionable material, referring to the books as “pornographic filth.” After receiving that list (“the Wallace list”) from Cunningham, Milum pulled the books from the shelves, allegedly to “weed” them based on the traditional MUSTIE factors. Milum testified that she would not have pulled the books had it not been for her receipt of the Wallace list. In fact, she had pulled no other books for review during that time period. By the end of 2021, seventeen books—all on the Wallace List—had been removed from the Llano County library system entirely.

“Butt and fart” may have gotten the foot in the door, but the real point was to remove books with more artistic merit, ones that made the requesters more unhappy than those that just contained juvenile humor. Here’s what was removed from the library, due to the combined actions of a judge, a commissioner, and three residents who thought they should get to decide what everyone else reads.

Seven “butt and fart” books, with titles like I Broke My Butt! and Larry the Farting Leprechaun;

Four young adult books touching on sexuality and homosexuality, such as Gabi, a Girl in Pieces;

Being Jazz: My Life as a (Transgender) Teen and Freakboy, both centering on gender identity and dysphoria;

Caste and They Called Themselves the K.K.K., two books about the history of racism in the United States;

Well-known picture book, In the Night Kitchen by Maurice Sendak, which contains cartoon drawings of a naked child; and

It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health.

Somehow there are always books about racism in the US on these lists. The books targeting LGBTQ+ reading material is par for the course as well.

Even more bullshit followed. The original library board was disbanded and reformed. The library director (Amber Milum) was prohibited from attending these meetings and forced to ask permission from the new board to purchase any new books. Copies of the books ordered off the shelves were donated to the library by the defendants’ attorney following the lawsuit but these books were never placed on the shelves or listed in the library’s catalog.

It should be pretty clear that everyone involved in the removal of these books was a government employee, running from the county judge to the county commissioner to the library director. As such, removing these books (which did not fall under any definition of obscenity) was a clear First Amendment violation, given that the books were targeted for their content and viewpoint.

So, it should have been an easy decision. The books should have gone back on the shelves and the defendants’ enjoined from engaging in this sort of unconstitutional stupidity ever again. There’s an injunction in here, but it gets complicated because this particular government agency feels it should also be able to engage in content-based restrictions.

While it does acknowledge that curation is part of a librarian’s job (to remove damaged books, older versions, or books rarely, if ever, checked out by patrons), this must be balanced by the presumptive First Amendment right of access to information. In this case, the library board (along with a local judge) decided to remove only certain content that a couple of residents complained about — content the board clearly didn’t care for either.

[W]e agree that library personnel must necessarily consider content in curating a collection. However, 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. That would violate the First Amendment and entirely shield all collection decisions from challenge.

But the Fifth Circuit doesn’t stop there. It modified the lower court’s injunction, which ordered the county library to return all books removed due to “viewpoint or content,” including the books specifically targeted by the complaining residents. It also forbade the library from removing any books for any reason until this case was resolved.

The Fifth says this goes too far. It limits the return order to the only eight of the 17 listed earlier and gives the library discretion to remove others, so long as those removals aren’t content-based. But that’s not much better. That’s the Fifth deciding what can or can’t be read based on its own interpretations of the contested books’ content.

The concurrence points this out. But, weirdly, it also suggests the majority didn’t go far enough in declaring some books unworthy of library placement due to their lack of… I guess… artistic merit? (Emphasis in the original.)

I find that some of the removals here satisfy the Campbell standard. The district court found that all removals were unconstitutional, stating: “Plaintiffs have clearly shown that Defendants’ decisions were likely motivated by a desire to limit access to the viewpoints to which Wallace and Wells objected.”

I disagree, first, because not all of the books express an “idea” or “viewpoint” in the sense required by the caselaw. I am referring to the items we have needed to label for clarity as the “butt and fart books.” Viewpoints and ideas are few in number in a book titled “Gary the Goose and His Gas on the Loose” — only juvenile, flatulent humor. Perhaps a librarian selected the book believing the juvenile content would encourage juveniles to read. Even if that is so, I do not find those books were removed on the basis of a dislike for the ideas within them when it has not been shown the books contain any ideas with which to disagree.

Wow. Judge Leslie Southwick read the majority decision and decided to compose a concurrence that basically says: “What if… and hear me out… some books are just too stupid to be made available to the public?” The judge says these books have no “ideas with which to disagree.” Maybe so, but someone still wanted them removed because of their content, and multiple government employees took actions to make that happen. That’s what needs to be prevented, and it’s not up to judges to decide whether or not a book they wouldn’t particularly like can be accessed by others.

The concurrence then goes further to suggest that as long as anyone can imagine a reason to remove a book, it might be constitutional so long as the presiding judge thinks the books are too stupid to be given First Amendment protection.

Wallace and Wells objected to the butt and fart books on the basis that they (1) promoted grooming” of minors and (2) were sexually explicit. These objections do not convert the resulting removals into viewpoint-based decisions.

Somehow, the judge has words to say about the juvenile nature of the “butt and fart” books but nothing to say about the ridiculousness of the assertions made by the Llano County residents who sought to have these books removed from the library.

To that end, the concurrence says the more limited book return order by the Appeals Court is better of the two (the lower court ordered the return of all books to the library’s shelves and catalog), but that it would have been better if the Fifth Circuit had disallowed the return of even more of the contested books.

I conclude that the plaintiffs have not met their burden to show a likelihood of success on the merits of their constitutional challenges to the removal of the butt and fart books, In the Night Kitchen, and It’s Perfectly Normal. The plaintiffs are, therefore, not entitled to a preliminary injunction requiring the return of those books to the Llano County Libraries.

Then the dissent shows up to say everything above is wrong. It calls the rest of the judges (on both levels) the “library police.” And not without reason. Two consecutive courts have decided what can and can’t be returned to the library. The lower court said all of the books. The Appeals Court said about half of them. The concurrence says even fewer books are worth of library placement.

Each judge provided their own reason and citations supporting their conclusions. But, as the dissent points out, they’re often contradictory. On one hand, the courts agreed libraries could still curate their collections. But they disagreed as to how this curation could be accomplished under the Constitution. It’s a complete mess and this decision does nothing to clear it up:

[E]ven assuming courts can police libraries’ collection decisions, what standard would they apply? The only one proposed by Plaintiffs (and the district court) is to forbid “content or viewpoint discrimination.” As shown, that is a non-starter. It would leave a librarian powerless to remove from the shelves all manner of bigoted screeds. It would perversely require librarians to “balance” legitimate scientific volumes with reams of quackery. It would literally bar a library from stopping a subscription to Penthouse magazine. In short, it is a standard in open war with the very concept of a library, whose mission is to assess materials precisely in terms of content and viewpoint and thereby “separate out the gold from the garbage.” (quoting Katz, supra, at 6).

Defendants’ counterproposal is that a library’s collection decisions must be “rational.” That is more modest than Plaintiffs’ proposal, but no more helpful. After all, what constitutes an “irrational” collection decision? Featuring the romantic works of E.L. James? Classifying The DaVinci Code as “Literature”? The mind reels at judges concocting “standards” for adjudicating such insoluble subjectivities. It would be no different than judges opining on whether the NEA should fund the latest “re-imagining” of Hamlet. Or whether a public television station should air old episodes of The Joy of Painting instead of the new season of Call The Midwife. Those are matters of esthetic, social, and moral judgment and no judge-made test can possibly say whether their resolution in any given case was “rational.” […] The same goes for a public library’s decision about which books to feature and which books to exclude.

But does the dissent have a solution? Yes. But it’s not all that much better. It says library curation is government speech, which is not subject to the Free Speech Clause. The government may not silence the speech of citizens, but it’s not required to express every idea constituents want it to express either. Libraries should be free to curate content, even when that curation effort is guided by bigots who just want certain content taken out of the public’s hands.

The dissent says this is not a great outcome, but it’s ok. And if people like the plaintiffs want to see something better from public officials and government employees, they’re free to load up on better public officials.

Energized voters can bend public officials to their will, as this case amply shows. Plaintiffs’ lamentations to the contrary, that does not amount to “book banning.” It means that a local government heeded its citizens. True, the upshot is that Llano County’s books may differ from the books in Travis or Harris County. But variety is a feature of our system, not a bug.

Which is probably as close to right as it gets. We want libraries to fight back when faced with removal requests, but if they’re expected to follow an arbitrary list of restrictions on curation, they’re more likely to comply with the type of people who like to demand the removal of books.

And it’s not like other cases we’ve dealt with involving public libraries and the books they can carry. Two other state laws ruled unconstitutional involved unconstitutional acts by other government bodies. In Arkansas, a new law would have allowed the state to bring criminal charges against librarians for “providing harmful materials to minors.” Meanwhile, back in Texas, the new law would have forced private companies (book publishers) to create and post “sexual content ratings” for any books sold to libraries or schools.

Those are both very different things than what’s being discussed here. And given the facts of this case, there’s no perfect answer. Curation is a two-way street. To be free to retain books in the face of bogus removal efforts, librarians must also be free to remove them when the circumstances warrant that. The problem here is the local government officials with the power to force the library to comply decided to side with people motivated by irrational hate. And the only way to fix that is to remove officials who think the worst constituents should be given the most credence.

Filed Under: 1st amendment, 5th circuit, book ban, free speech, llano county, texas

After Inexplicably Allowing Unconstitutional Book Ban To Stay Alive For Six Months, The Fifth Circuit Finally Shuts It Down

from the nonsensically-delaying-justice dept

Texas is in a close race with Florida for the title of “Most Unconstitutional Laws Enacted.” Florida’s legislators will probably end up taking this title because they seem crazier/more productive than their counterparts in Texas.

But let’s not encourage those Texas underachievers! These are bad laws written by worse people. They’re almost universally incapable of surviving a constitutional challenge.

Unless they’re passed in the Fifth Circuit. Then all bets are off. The Fifth Circuit Court of Appeals has upheld obviously unconstitutional laws twice in recent months. And six months ago it chose to allow Texas to enforce its unconstitutional book ban simply by refusing to keep an injunction put in place by the district court.

It’s not like it was a close question. The lower court’s ruling explained in detail how the state’s READER Act (Restricting Explicit and Adult-Designated Educational Resources) violated the Constitution so hard it could not possibly be allowed to remain in force. This decision was appealed and, last September, the Appeals Court inexplicably decided the law could be enforced until it finally got around to examining the case.

Nearly six months later, the Appeals Court has finally handed down its ruling. And it’s not even a close question here, either, which makes this delay all that more frustrating.

The law requires book vendors selling to school libraries to issue sexual-content ratings for all books they have sold or will sell. Books containing “sexually explicit” or “sexually relevant” content must be flagged as such, subjecting them to possible removal or restricted access.

Books flagged by the new rating system must be submitted to the Texas Education Agency (TEA), which enforces the restriction/removal process. Any books sold in the past that make the list must be “recalled” from the educational institutions that purchased them. The law also requires booksellers to list flagged books “in a conspicuous place on the agency’s Internet website.”

Clearly the law violates the First Amendment. Not only is it prior restraint (because it deters booksellers from offering certain books for sale), it’s also compelled speech — the forcible application of ratings to books in order to continue selling books to school libraries.

As the book vendor plaintiffs point out, sales are pretty much nonexistent as schools have paused all purchasing until the rating system is in place. They also point out it could cost several million dollars to vet all past and present books carried by these vendors — something that will likely put at least one vendor (Blue Willow) completely out of business.

The state argued that even if those allegations are true, the government can still violate the First Amendment because the “commercial speech” exception applies. While it’s true commercial speech can be regulated to ensure consumers receive factual and accurate information, that’s not what’s happening here. From the opinion [PDF]:

According to the State, Zauderer applies here because the library-material ratings are “purely factual and uncontroversial” like a nutrition label; they simply tell the buyer what they are receiving rather than pass judgment or express a view on the material’s appropriateness for children. We disagree. The ratings READER requires are neither factual nor uncontroversial. The statute requires vendors to undertake contextual analyses, weighing and balancing many factors to determine a rating for each book. Balancing a myriad of factors that depend on community standards is anything but the mere disclosure of factual information. And it has already proven controversial.

And while “thinking about the children” can sometimes be a cognizable government interest demanding a limited incursion on constitutional rights, this ain’t it, Texas.

We agree with the State that it has an interest in protecting children from harmful library materials. But “neither [the State] nor the public has any interest in enforcing a regulation that violates federal law.”

The long-paused injunction is back on. As the court notes, there’s very little chance the state of Texas will be harmed by being unable to enforce a statute that “likely violates the First Amendment.” It goes back down to the court that got this right the first time. And, with any luck, this temporary injunction should swiftly be made permanent.

Filed Under: 1st amendment, 5th circuit, book ban, free speech, texas, zauderer

Iowa’s New Book Ban/Anti-LGBTQ Law Mostly Dead Following Federal Court Injunction

from the if-you-want-to-be-evil,-you'll-have-to-do-it-more-constitutionally dept

If you love to irrationally hate, you’ll hate this. The Iowa legislature recently shat out a bill that allowed the state to start punishing people for not being straight and/or white. It was signed into law by another hateful person, Governor Kim Reynolds — the head of (this) state that recently made it clear she’s willing to starve her state’s children to own the libs. I am not even kidding.

Iowa will not participate this summer in a federal program that gives $40 per month to each child in a low-income family to help with food costs while school is out, state officials have announced.

The state has notified the U.S. Department of Agriculture that it will not participate in the 2024 Summer Electronic Benefits Transfer for Children — or Summer EBT — program, the state’s Department of Health and Human Services and Department of Education said in a Friday news release.

“Federal COVID-era cash benefit programs are not sustainable and don’t provide long-term solutions for the issues impacting children and families. An EBT card does nothing to promote nutrition at a time when childhood obesity has become an epidemic,” Iowa Republican Gov. Kim Reynolds said in the news release.

Yeah… that’s how Iowa’s being run right now — by someone who thinks giving people $40/month for food will somehow contribute to childhood obesity. If that doesn’t make you vomit in your mouth a little and/or feel a bit stabby, I don’t know what to tell you.

Anyway, the law went into effect and immediately became the subject of two lawsuits. The first lawsuit was filed by concerned parents, students, and the GLBT Youth in Iowa Task Force. Easy enough to ignore, I suppose. The second lawsuit, however, featured a very heavy hitter in the list of plaintiffs: publishing heavyweight Penguin Random House. And that wasn’t the only powerful player in this litigation market. The other major plaintiff was the Iowa State Education Association, the union representing the state’s educators.

Codifying hate is always an option. But it’s rarely a constitutional option. And such is the case here, with this law neatly summarized by Courthouse News Service in its coverage of the ensuing lawsuits.

Among other things, the new law requires public school districts to ban books and materials containing descriptions or depictions of “sex acts” from all Iowa school libraries except for certain religious texts, such as the Bible, and forbids mention of sexual orientation or gender identity from kindergarten through the sixth grade, in or outside of the classroom. And, the law requires teachers, counselors, and other school staff to report to parents if a student asks to be referred to by names or pronouns that align with their gender identity.

When a law is already this shitty, any summary that begins with “among other things” makes it clear the “other things” aren’t any better than what’s contained in the summary. Here’s what the lawsuit filed by Penguin Random House had to say about just the book ban:

First, under the pretext of protecting students from “pornography,” Senate File 496 prohibits books in school libraries and classroom collections that contain a description or visual depiction of a “sex act.” This restriction applies to all grades, kindergarten through twelfth grade, without consideration of the book as a whole, only excepting religious books. By so broadly regulating the display and availability of books that are constitutionally protected as to at least a significant number of students, this standard violates the First and Fourteenth Amendments because it is an impermissible content-based restriction, restricts access to constitutionally protected books, and is unconstitutionally vague.

Second, a portion of Senate File 496 also appears, and is being interpreted by Iowa school districts, to prohibit books in school libraries and classroom collections that “relate” to “gender identity” or “sexual orientation.” This sweeping prohibition defines gender identity and sexual orientation so broadly that the prohibition could apply to all gender identities and any depiction of a romantic relationship. This prohibition violates the First and Fourteenth Amendments because it is an impermissible content-based restriction and is unconstitutionally vague. In practice this prohibition appears to have been intended to apply, and has been applied, to remove only books containing LGBTQ+ themes or characters or those written by authors within the LGBTQ+ community. Therefore, this prohibition also violates the First and Fourteenth Amendments because it discriminates against LGBTQ+ viewpoints and authors.

As I stated then, this law would never survive a constitutional challenge. The only thing left unanswered was how long it would take before a court blocked its enforcement.

We now have that answer: not long. Roughly a month after the lawsuits’ arrival in court, a decision has been handed down that blocks the law from being enforced (for the most part). (h/t NBC News for the update, but I’ll be deducting points because the broadcasting giant couldn’t be bothered to post a copy of the decision.)

The injunction order [PDF] consolidates both lawsuits to give both sets of plaintiffs the same answer: the law is not only bad, it’s unconstitutional.

The state loses badly here. Pretty much every aspect of the law violates the Constitution. The book ban fares the worst, with the court noting it has never before encountered such a broad attack on First Amendment rights. (All emphasis mine.)

As to the book restrictions, the Court GRANTS the Motions for Preliminary Injunction and ENJOINS the enforcement of Senate File 496. The law is incredibly broad and has resulted in the removal of hundreds of books from school libraries, including, among others, nonfiction history books, classic works of fiction, Pulitzer Prize winning contemporary novels, books that regularly appear on Advanced Placement exams, and even books designed to help students avoid being victimized by sexual assault. The sweeping restrictions in Senate File 496 are unlikely to satisfy the First Amendment under any standard of scrutiny and thus may not be enforced while the case is pending. Indeed, the Court has been unable to locate a single case upholding the constitutionality of a school library restriction even remotely similar to Senate File 496.

TL;DR: Do NOT be coming here with this bullshit. The book ban is benchslapped so hard, state legislators’ kids will be wearing Judge Stephen Locher’s handprints for weeks to come. (h/t Popehat, whom I’m pretty sure I stole that imagery from.)

That takes care of the book ban, which will never be allowed to be enforced ever… at least not in this nation.

As for the rest of the law? Well, that doesn’t go much better for the state, Governor, and the hideous lawmakers who thought this could actually be a law. It starts out sounding like a win for these hateful people who don’t deserve to be paid by the public…

First, nothing in the law restricts the ability of school districts, teachers, or other professionals to provide programs, promotion, and/or instruction of gender identity and sexual orientation to students in grade seven and above. School districts instead have full freedom to offer gay straight alliances (“GSAs”) or similar clubs that provide resources and support for LGBTQ+ students in grades seven and above. Teachers and other licensed professionals are not restricted in any way from serving as advisors for such GSAs, displaying rainbow flags, providing instruction on gay and transgender rights, and otherwise performing their responsibilities in a manner that emphasizes inclusiveness and respect for LGBTQ+ students in grades seven and above.

At first blush, it sounds like a possible win for the legislators who crafted a law meant to diminish the rights of certain people but inadvertently managed to actually uphold their rights, so long as those people had passed the sixth grade. But as anyone familiar with context can tell you, the “first” at the beginning of the paragraph means there’s going to be a “second.” And it’s the back half where the law goes wrong yet again.

Second, but conversely, there is also a misunderstanding of Senate File 496 as it relates to students in grade six and below. The law forbids programs, promotion, and instruction to students in those grades relating to “gender identity” and “sexual orientation,” but those terms are defined a neutral way that makes no distinction between cisgender or transgender identity or gay or straight relationships. Meaning: on its face, the law forbids any programs, promotion, or instruction recognizing that anyone is male or female or in a relationship of any sort (gay or straight). The statute is therefore content-neutral but so wildly overbroad that every school district and elementary school teacher in the State has likely been violating it since the day the school year started. This renders the statute void for vagueness under the due process clause of the Fourteenth Amendment because the State will have unfettered discretion to decide when to enforce it and against whom, thus making it all but impossible for a reasonable person to know what will and will not lead to punishment.

Yeah, you read that right. The bigoted legislators who want everyone to be subjected to a hetero-centric worldview inadvertently criminalized discussing heterosexuality. If it were up to me, I’d let this part of the law stay alive and force those fuckers to live with it. Any attempt to amend it would just end up being blocked by the courts, so there would really be no downside. Educators prone to fighting the “woke virus” or whatever would be subject to punishment the legislature clearly meant to target those more willing to treat students like human beings and not pass judgment on those that are different from them.

The injunction doesn’t block the entire law, but only because the current plaintiffs in these suits can’t demonstrate they’ll be harmed by it.

[N]o Plaintiff has standing to challenge the provisions of Senate File 496 requiring school districts to notify a child’s parents if the child asks for the use of pronouns that do not match the school’s registration records or otherwise seeks an accommodation relating to gender identity. Only the GLBT Youth Student Plaintiffs challenge this portion of the law, but they are all already “out” to their families and therefore not affected in a concrete way by this requirement. Thus, the Court has no authority to do anything except DENY the GLBT Youth Student Plaintiffs’ Motion for Preliminary Injunction as it relates to this aspect of Senate File 496.

That’s not the court saying this part of the law is good and correct and constitutional. That’s the court stating what’s needed to successfully challenge this particular aspect of this particularly awful law.

We’re seeing a lot of hate in this nation. That’s nothing new. Fortunately, the Constitution is still capable of shutting down the worst tendencies of the worst people writing laws. The nation’s courts may not always protect everyone (see also: Dobbs) but the lower levels are still doing their best (in most cases!) to prevent the government from devolving into the sort of hate-based governing that punishes people simply because of their sexual orientation or preferences. We’re still the land of the free. Unfortunately, we’re also the home of the brave cowards, people who can’t accept anything that doesn’t mirror their own extremely limited perceptions.

Filed Under: 1st amendment, bigots, book ban, censorship, injunction, iowa, kim reynolds, lgbtq, libraries, school library, schools, senate file 496, stephen locher
Companies: penguin random house

Judge Blocks Unconstitutional Book Ban Law Passed By Arkansas’ Self-Proclaimed Free Speech Warriors

from the free-speech-doesn't-mean-the-gov't-is-free-to-tell-you-to-STFU dept

The self-proclaimed free speech warriors of the Republican party have spent much of the past half-decade trying to find some way to force social media platforms to carry their often-objectionable speech. That’s what these asshats and hypocrites consider to be the real “censorship:” the actions of private companies these same people have long stated should not be forced to offer their services to people they don’t like.

In other words, no one should be forced to bake a “gay” cake. But on the other hand, private companies should be forced to publish the speech of people they’d rather not do business with.

Between the social media laws, the anti-drag laws, and everything in between that best soaks up the floor spittle generated by of the worst of the worst of their constituents, Republicans keep writing and passing laws that openly violate the Constitution. And they just keep losing in court every time a judge has a chance to take a look at the hate-blinded op-eds these legislators are trying to pass off as legitimate acts of government work.

Here it is again: performative shitheels being told by a federal court that their new favorite law is illegal.

Arkansas is temporarily blocked from enforcing a law that would have allowed criminal charges against librarians and booksellers for providing “harmful” materials to minors, a federal judge ruled Saturday.

U.S. District Judge Timothy L. Brooks issued a preliminary injunction against the law, which also would have created a new process to challenge library materials and request that they be relocated to areas not accessible by kids. The measure, signed by Republican Gov. Sarah Huckabee Sanders earlier this year, was set to take effect Aug. 1.

That’s from the Associated Press report on the latest injunction against the latest batch of free speech violations signed into law by state officials who should at least try to employ better lawyers to give these pieces of legislative shit a better pass before slashing their Hancock across a stack of papers to the applause of onlooking mouth-breathers.

[And the Associated Press should definitely start making the effort to actually post the court orders it discusses in articles, but a public document is not a limited good that can only be referenced when discussed. If the general public has access, AP has access. And — once again — it boggles the mind that in the year 2023 there are still major news agencies that refuse to embed the documents they report on.]

THAT BEING SAID… let’s move on.

The other great thing about decisions like this one [PDF] that slap down obviously unconstitutional laws is that it appears judges are as sick of this performative bullshit as millions of Americans who actually think rights should be respected and that they should, at the very least, not be treated as (perhaps temporary) doormats just because people who are supposed to serve the greater good, along with all their constituents, have instead decided to blow money on pantomime buffoonery for the appreciation of the most dull-witted of their voting base.

It opens by explaining what the law intends to do, as well as the decades of case law it intends to upend:

Section 1 of Act 372 makes librarians and booksellers the targets of potential criminal prosecution for “[f]urnishing a harmful item to a minor.” Plaintiffs contend that if Section 1 goes into effect, public librarians and bookstore owners will face a grim choice:

Arkansas already criminalizes providing obscenity to minors. But it has long maintained a safe harbor for librarians “acting within the scope of [their] regular employment duties” if prosecuted for disseminating material “that is claimed to be obscene.” See Ark. Code Ann. § 5-68-308(c). That immunity has not been questioned since the Arkansas Supreme Court found the exemption “reasonable on its face” nearly four decades ago.

So, in an effort meant to block a very specific subset of content some parents might find objectionable for some minors, the state legislature — including the state’s governor — decided it was OK to throw out the First Amendment along with four decades of case law supporting immunity for librarians. Fuck the librarians, said Governor Sanders and the bill’s supporters, as the court notes. Something that has never been a problem for decades is suddenly a concern worth threatening librarians with jail time over. (Emphasis in the original.)

In other words, the notion that a professional librarian might actually disseminate obscene material in the course of his or her regular employment duties was inconceivable to the state’s highest court. The statutory exemption protected librarians from meritless claims. Act 372 signals a fundamental change in how librarians are treated under the law.

A government-ordained attack on public libraries is almost inconceivable. The opinion quotes founding fathers who recognized the utmost importance of having free access to publications and works of literature. Well respected philanthropists (also quoted in the opinion) have repeatedly gone on record in support of publicly-funded libraries, which democratize the spread of information — something that’s even more important now that these entities often provide free internet access to people who can’t afford or readily access this undeniable essential of everyday life.

And yet, here we are, watching (along with an incredulous federal judge) a state decide it’s fully within the rights (it doesn’t actually possess) to jail librarians just because there’s a slim possibility a minor might access content these legislators have unilaterally decided (without the benefit of ruling on the disputed content itself) is de facto obscene.

It is no stretch of the imagination to foresee that these same legislators would object heavily — even up to the point of hastily erected legislation — to any reform efforts that might strip cops, prosecutors, or even legislators themselves of long-held immunities. But these same people think it’s entirely fine to do the same thing to other public employees, just because they don’t like a very small percentage of any public library’s inventory.

And there’s no need to guess what kind of content is being singled out as potentially illegal. That’s already on the record:

Plaintiff Adam Webb, Garland County Library’s Executive Director, states that his library has already received a “blanket request” to remove books from the collection due to their content and/or viewpoint, namely, “all materials with LGBTQ characters”; and he expects to see challenges to “those same books, as well as others dealing with similar themes,” made “repeatedly under Act 372.” (Doc. 22-15, ¶ 21)

Back to the court’s ongoing rejection of this reprehensible law:

The vocation of a librarian requires a commitment to freedom of speech and the celebration of diverse viewpoints unlike that found in any other profession. The librarian curates the collection of reading materials for an entire community, and in doing so, he or she reinforces the bedrock principles on which this country was founded. According to the United States Supreme Court, “Public libraries pursue the worthy missions of facilitating learning and cultural enrichment.”

[…]

The librarian’s only enemy is the censor who judges contrary opinions to be dangerous, immoral, or wrong.

The public library of the 21st century is funded and overseen by state and local governments, with the assistance of taxpayer dollars. Nonetheless, the public library is not to be mistaken for simply an arm of the state. By virtue of its mission to provide the citizenry with access to a wide array of information, viewpoints, and content, the public library is decidedly not the state’s creature; it is the people’s.

The state argues it has a “paramount interest” in preventing minors from accessing “obscene materials.” This apparently includes parents buying allegedly “obscene” materials for minors in their own home — something that definitely appears to run contrary to the rest of the law, which says any parent or person — whether or not they have an affected minor (or indeed, even reside in the state) can initiate proceedings against library employees.

Any “person affected by . . . material” in a library’s collection may “challenge the appropriateness” of that material’s inclusion in the main collection. Id. at § 5(c)(1). Material subject to challenge is not limited to sexual content. There is no definition of “appropriateness,” so any expression of ideas deemed inappropriate by the challenger is fair game. Section 5 does not require a book challenger to be a patron of the library where the challenge is made, nor does it impose a residency requirement.

This is what the new law would force librarians to do — something the court says are credible assertions that not only support ongoing litigation, but demand the court step in and block the law:

Librarians will be disinclined to risk the criminal penalty that may follow from lending or selling an older minor a book that could be considered “harmful” to a younger minor, since the new law makes no distinctions based on age and lumps “minors” into one homogenous category…

Librarians and booksellers fear exposure under Section 1 to the risk of criminal prosecution merely by allowing anyone under the age of 18 to browse the collection.

Librarians maintain that a quantity of books in their collections very likely qualify as “harmful to [younger] minors” under the law. Even if any such book is successfully identified and relocated to the “adult” section, librarians will have to closely police the browsing habits of all minors to make sure they do not stray outside the marked “children’s” or “young adult” sections of the library—a task librarians maintain is physically impossible and antithetical to the mission and purpose of public libraries.

Librarians and booksellers anticipate they will have to remove all books that could possibly be considered harmful to the youngest minors from the shelves entirely.

The librarians are right. The state is in the wrong.

Plaintiffs have established this “realistic danger.” If libraries and bookstores continue to allow individuals under the age of 18 to enter, the only way librarians and booksellers could comply with the law would be to keep minors away from any material considered obscene as to the youngest minors—in other words, any material with any amount of sexual content. This would likely impose an unnecessary and unjustified burden on any older minor’s ability to access free library books appropriate to his or her age and reading level. It is also likely that adults browsing the shelves of bookstores and libraries with their minor children would be prohibited from accessing most reading material appropriate for an adult—because the children cannot be near the same material for fear of accessing it. The breadth of this legislation and its restrictions on constitutionally protected speech are therefore unjustified.

And boom goes the injunction as the sportscasters say. Temporary for the moment, but it’s highly unlikely there’s anything the state can say to prevent this from becoming permanent. It’s a law meant to punish librarians for content in libraries certain members of this state’s government don’t like. And, considering they’re supposed to be the adults in the room, it’s amazing they feel so comfortable slapping on ideological blinkers and wandering around like children seeking to treat long-held rights as piñatas.

Filed Under: 1st amendment, arkansas, book ban, booksellers, censorship, for the children, free speech, harmful to minors, libraries, obscenity, sarah huckabee sanders