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`Case: 23-50224 Document: 251 Page: 8 Date Filed: 09/11/2024Case: 23-50224 Document: 285-1 Page: 1 Date Filed: 09/20/2024
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`No. 23-50224
`
`United States Court of Appeals
`For the
`Fifth Circuit
`
`LEILA GREEN LITTLE, et al.,
`
`– v. –
`LLANO COUNTY, et al.,
`
`Plaintiffs-Appellees,
`
`Defendants–Appellants.
`
`___________________________
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`CASE NO. 1:22-CV-424-RP
`
`BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION
`AND ACLU OF TEXAS
`IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE
`
`Chloe Kempf
`Brian Klosterboer
`Edgar Saldivar
`Adriana Piñon
`ACLU FOUNDATION OF TEXAS, INC.
`P.O. BOX 8306
`Houston, TX 77288
`(713) 942-8146
`ckempf@aclutx.org
`
`Vera Eidelman
`Elizabeth Gyori
`AMERICAN CIVIL LIBERTIES
` UNION FOUNDATION
`125 Broad Street, 18th Floor
`New York, NY 10004
`(212) 549-2500
`veidelman@aclu.org
`
`Counsel for Amici Curiae
`
`

`

`
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`CERTIFICATION OF INTERESTED PARTIES AND CORPORATE
`DISCLOSURE STATEMENT
`
`Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amici
`
`curiae American Civil Liberties Union and ACLU of Texas state that they do not
`
`have a parent corporation and that no publicly held corporation owns 10 percent or
`
`more of their stock.
`
`Pursuant to Rule 29.2, the undersigned counsel of record certifies that the
`
`following listed persons and entities have an interest in the outcome of this case.
`
`These representations are made in order that the judges of this Court may evaluate
`
`possible disqualification or recusal.
`
`Person or Entity
`
`Connection to Case
`
`American Civil Liberties Union
`
`ACLU Foundation of Texas, Inc.
`
`Vera Eidelman
`
`Elizabeth Gyori
`
`Chloe Kempf
`
`Brian Klosterboer
`
`Adriana Piñon
`
`Edgar Saldivar
`
`Amicus curiae
`
`Amicus curiae
`
`Counsel to amici
`
`Counsel to amici
`
`Counsel to amici
`
`Counsel to amici
`
`Counsel to amici
`
`Counsel to amici
`
`Dated: September 10, 2024
`
`By: /s/ Vera Eidelman
`Vera Eidelman
`
`i
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`

`

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`TABLE OF CONTENTS
`
`STATEMENT OF INTEREST .................................................................................. 1
`INTRODUCTION ..................................................................................................... 2
`ARGUMENT ............................................................................................................. 4
`I. BOOK REMOVALS ARE SUBJECT TO FIRST
`AMENDMENT SCRUTINY ..................................................................... 4
`A. First Amendment scrutiny applies to government efforts to
`remove books from public library shelves ....................................... 4
`B. ALA, Finley, and Forbes are not to the contrary. ............................. 7
`II. GOVERNMENT OFFICIALS CANNOT REMOVE LIBRARY
`BOOKS TO PRESCRIBE WHAT SHALL BE ORTHODOX
`IN MATTERS OF OPINION ................................................................... 12
`A. Pursuant to the school library cases, removals that seek to
`impose a pall of orthodoxy in matters of opinion violate the
`First Amendment ............................................................................ 13
`B. Removing books to aim at the suppression of dangerous
`ideas or to drive an idea from the marketplace is equally
`unconstitutional under the government subsidy or
`government program cases ............................................................. 15
`C. Removing books from public libraries to impose political
`orthodoxy in ideas would also violate the First Amendment
`under nonpublic forum doctrine ..................................................... 19
`CONCLUSION ........................................................................................................ 22
`CERTIFICATE OF COMPLIANCE ....................................................................... 24
`CERTIFICATE OF SERVICE ................................................................................ 25
`
`ii
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`

`

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`Case: 23-50224 Document: 251 Page: 11 Date Filed: 09/11/2024Case: 23-50224 Document: 285-1 Page: 4 Date Filed: 09/20/2024
`
`Cases
`
`TABLE OF AUTHORITIES
`
`ACLU of Florida, Inc. v. Miami-Dade County School Board,
`557 F.3d 1177 (11th Cir. 2009) .......................................................................... 13
`
`Arkansas Educational Television Commission v. Forbes,
`523 U.S. 666 (1998) .................................................................................... passim
`
`Board of Education, Island Trees Union Free School District No. 26 v. Pico,
`457 U.S. 853 (1982) .................................................................................... passim
`
`Brown v. Louisiana,
`383 U.S. 131 (1966) ..................................................................................... 14, 18
`
`Campbell v. St. Tammany Parish School Board,
`64 F.3d 184 (5th Cir. 1995) ................................................................................ 14
`
`Case v. Unified School District No. 233,
`908 F. Supp. 864 (D. Kan. 1995) .......................................................................... 6
`
`Chiu v. Plano Independent School District,
`260 F.3d 330 (5th Cir. 2001) ....................................................................... 20, 21
`
`Cornelius v. NAACP Legal Defense & Educational Fund,
`473 U.S. 788 (1985) .............................................................................................. 9
`
`Counts v. Cedarville School District,
`295 F. Supp. 2d 996 (W.D. Ark. 2003) ................................................................ 6
`
`Doe v. City of Albuquerque,
`667 F.3d 1111 (10th Cir. 2012) ............................................................................ 7
`
`Fayetteville Public Library v. Crawford County, Arkansas,
`684 F. Supp. 3d 879 (W.D. Ark. 2023) ....................................................... 17, 18
`
`Ginsberg v. New York,
`390 U.S. 629 (1968) .............................................................................................. 9
`
`GLBT Youth in Iowa Schools Task Force v. Reynolds,
`No. 24-1075, 2024 WL 3736785 (8th Cir. Aug. 9, 2024) .................................... 6
`
`iii
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`

`

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`
`
`Hannegan v. Esquire, Inc.,
`327 U.S. 146 (1946) ....................................................................................... 2, 18
`
`Kreimer v. Bureau of Police for Town of Morristown,
`958 F.2d 1242 (3d Cir. 1992) ........................................................................ 7, 17
`
`Legal Services Corporation v. Velazquez,
`531 U.S. 533 (2001) ..................................................................................... 15, 18
`
`Little v. Llano County,
`103 F.4th 1140 (5th Cir. 2024) .........................................................................2, 7
`
`Matal v. Tam,
`582 U.S. 218 (2017) ............................................................................................ 16
`
`Miller v. California,
`413 U.S. 15 (1973) ................................................................................................ 9
`
`Minarcini v. Strongsville City School District,
`541 F.2d 577 (6th Cir. 1976) ....................................................................... 13, 17
`
`Minnesota Voters Alliance v. Mansky,
`585 U.S. 1 (2018) ................................................................................................ 20
`
`Moody v. NetChoice, LLC,
`144 S. Ct. 2383 (2024) .......................................................................................... 8
`
`Muir v. Alabama Educational Television Commission,
`688 F.2d 1033 (5th Cir. 1982) ..................................................................... 16, 19
`
`National Endowment for the Arts v. Finley,
`524 U.S. 569 (1998) .................................................................................... passim
`
`Neinast v. Board of Trustees of the Columbus Metropolitan Library,
`346 F.3d 585 (6th Cir.2003) ................................................................................. 7
`
`Perry Education Ass'n. v. Perry Local Educators’ Ass’n,
`460 U.S. 37 (1983) .............................................................................................. 20
`
`Pleasant Grove City v. Summum,
`555 U.S. 460 (2009) .............................................................................................. 8
`
`
`
`iv
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`

`

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`
`Regan v. Taxation With Representation of Washington,
`461 U.S. 540 (1983) ........................................................................... 3, 11, 12, 17
`
`Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Board,
`502 U.S. 105 (1991) ............................................................................................ 11
`
`Stanley v. Georgia,
`394 U.S. 557 (1969) ............................................................................................ 12
`
`Sund v. City of Wichita Falls, Texas,
`121 F. Supp. 2d 530 (N.D. Tex. 2000) .......................................................... 7, 14
`
`Turner Broad. System, Inc. v. Federal Communications Commission,
`512 U.S. 622 (1994) ............................................................................................ 12
`
`United States v. American Library Association, Inc.,
`539 U.S. 194 (2003) .................................................................................... passim
`
`West Virginia Board of Education v. Barnette,
`319 U.S. 624 (1943) ................................................................................. 4, 12, 13
`
`Statutes
`
`47 U.S.C.A. § 254 ...................................................................................................... 9
`
`Other Authorities
`
`Amy K. Garmer, Public Libraries in the Community,
`13 I/S: J.L. & POL’Y FOR INFO. SOC’Y 1 (2016) .................................................. 18
`
`
`
`v
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`

`

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`
`STATEMENT OF INTEREST1
`The American Civil Liberties Union (“ACLU”) is a nationwide, non-partisan,
`
`non-profit organization. The ACLU Foundation of Texas, Inc. (“ACLU of Texas”)
`
`is a state affiliate of the ACLU. Both organizations are dedicated to the principles of
`
`liberty and equality embodied in the Constitution and our nation’s civil rights laws,
`
`including freedom of speech. The ACLU was counsel in both Board of Education,
`
`Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982) and
`
`United States v. American Library Association, Inc., 539 U.S. 194 (2003). As
`
`organizations committed to protecting the rights to freedom of speech and freedom
`
`from government censorship, the ACLU and ACLU of Texas have a strong interest
`
`in the proper resolution of this case.
`
`
`
`
`
`
`
`
`
`1 Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), amici certify that no
`person or entity, other than amici, their members, or their counsel, made a monetary
`contribution to the preparation or submission of this brief or authored this brief in
`whole or in part. The parties have consented to the filing of this brief.
`
`
`
`1
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`

`

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`
`INTRODUCTION
`Public libraries exist to provide the public with free access to books,
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`information, and ideas. They offer people a universe of materials to explore, and
`
`enable patrons to make up their own minds about which are worthwhile. In many
`
`ways, they are the physical embodiment of the First Amendment principle that,
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`“[f]rom the multitude of competing offerings the public,” not the government, “will
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`pick and choose.” Hannegan v. Esquire, Inc., 327 U.S. 146, 158 (1946).
`
`As the panel dissent emphasized, notwithstanding—indeed, due to—the core
`
`function of public libraries, librarians necessarily have broad discretion to choose
`
`what books to offer. Little v. Llano Cnty., 103 F.4th 1140, 1167 (5th Cir. 2024)
`
`(Duncan, J., dissenting). Otherwise, public libraries would be little more than
`
`warehouses. Id. Librarians must decide what books are worthy of inclusion, and they
`
`can base those decisions on a book’s artistry, its eloquence, its entertainment value,
`
`and even its placement on bestseller lists, among other things. Of course, many of
`
`those judgments will be subjective (though informed by a librarian’s expertise and
`
`training) and they may well turn on the content, and the ideas, of a book.
`
`At the same time, some reasons for removing library books are plainly
`
`impermissible, particularly given the role, nature, history, and tradition of public
`
`libraries. A Democratic governor could not order the removal of all library books
`
`
`
`2
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`

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`advocating “Republican” ideals, nor could a predominantly Jewish city council ban
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`all copies of the New Testament to impose a single religious view.
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`This is clear not only from common sense, but also from First Amendment
`
`doctrine. The First Amendment prohibits government officials from prescribing
`
`what is orthodox, including via public library shelves. Defendants argue that, “[a]s
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`a matter of first principles,” the act of removing books from public libraries “should
`
`be treated as government speech,” Def. Suppl. Br. at 16, as did the panel dissent.
`
`Pico forecloses this argument, because eight justices in that case agreed that some
`
`reasons for removal would violate the First Amendment. And, even if Pico were not
`
`controlling on this point, immunizing book removals from First Amendment
`
`scrutiny would contradict scores of other Supreme Court cases.
`
`Cases that establish and apply First Amendment limitations on (1) the removal
`
`of books from school libraries, (2) government programs that necessarily pick and
`
`choose among private speech, and (3) nonpublic forums all hold that government
`
`officials cannot engage in “invidious viewpoint discrimination” that seeks to “drive
`
`certain ideas or viewpoints from the marketplace.” Nat’l Endowment for the Arts v.
`
`Finley, 524 U.S. 569, 587 (1998) (marks and citation omitted). Government actors
`
`may not “discriminate invidiously . . . in such a way as to aim at the suppression of
`
`dangerous ideas.” Regan v. Tax’n With Representation of Wash., 461 U.S. 540, 548
`
`(1983) (tax exemptions) (marks and citation omitted). Nor may they silence ideas in
`
`
`
`3
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`

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`an effort to “prescribe what shall be orthodox in politics, nationalism, religion, or
`
`other matters of opinion.” Pico, 457 U.S. at 872 (plurality op.) (quoting West
`
`Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).
`
`The Supreme Court has made clear that even when a government program
`
`necessarily involves making value judgments between instances of private speech—
`
`for example, National Endowment for the Arts grants, or a public-broadcast station’s
`
`plan for a political debate—officials may not use their curatorial authority to silence
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`unorthodox views. That rule is not new, and courts have successfully administered
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`it in school libraries, public libraries, and other public programs for decades. To
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`require anything less in public libraries now would ignore controlling caselaw, and
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`wholly distort their nature, function, and tradition.
`
`This Court should affirm the court below and hold that government officials
`
`cannot remove books from public library shelves in an effort to prescribe what shall
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`be orthodox in matters of opinion.
`
`I.
`
`ARGUMENT
`BOOK REMOVALS ARE SUBJECT TO FIRST AMENDMENT
`SCRUTINY.
`A.
`First Amendment scrutiny applies to government efforts to remove
`books from public library shelves.
`In Pico, the Supreme Court’s only case about book removals, a majority of
`
`justices agreed on one thing: government officials’ decision to remove books from
`
`library shelves will violate the First Amendment if the facts are egregious enough.
`
`
`
`4
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`

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`The three-justice plurality concluded that “the First Amendment rights of students
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`may be directly and sharply implicated by the removal of books[.]” 457 U.S. at 866
`
`(plurality op.). Justice Blackmun agreed that the Supreme Court’s cases “command”
`
`a First Amendment limitation on why government officials may remove a library
`
`book. Id. at 878–79 (Blackmun, J., concurring). Justice White agreed that the case
`
`should be remanded for further fact-finding about the school board’s specific reasons
`
`in the case—an exercise that would have been pointless if no facts could have
`
`established a violation of the First Amendment. Id. at 883–84. And Justice
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`Rehnquist, joined by Chief Justice Burger and Justice Powell in dissent, “cheerfully
`
`concede[d]” that “[o]ur Constitution does not permit the official suppression of
`
`ideas,” including in libraries. Id. at 907 (Rehnquist, J., dissenting (quoting plurality
`
`op.)) (emphasis in original).2 Thus, eight of the justices in Pico agreed that library
`
`book removals can violate the First Amendment.
`
`It is not hard to understand why. As the plurality stated, and Justices
`
`Blackmun and Rehnquist echoed, of course “a Democratic school board, motivated
`
`by party affiliation” could not “order[] the removal of all books written by or in favor
`
`of Republicans,” nor could an “an all-white school board, motivated by racial
`
`animus, decide to remove all books authored by blacks or advocating racial equality
`
`
`2 Though they doubted that the “extreme examples” of partisan or political
`disapproval posited by the plurality would “arise in the real world,” these justices
`agreed that the scenarios would violate the Constitution if they ever did. Id.
`
`
`
`5
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`

`

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`and integration.” Id. at 870–71 (plurality op.); see also id. at 878 (Blackmun, J,
`
`concurring), id. at 907 (Rehnquist, J., dissenting).
`
`Equally, county and library officials, motivated by their own atheism, could
`
`not decide to remove all books suggesting that God exists, nor could religious board
`
`members remove all Harry Potter books because they disagree with “witchcraft” as
`
`a viable religion. Counts v. Cedarville Sch. Dist., 295 F. Supp. 2d 996, 1002 (W.D.
`
`Ark. 2003). Officials could not choose to remove all books advocating for a higher
`
`minimum wage, broader gun rights, or cheaper public transportation because they
`
`believe those are the wrong political views. Nor could officials remove a “novel
`
`depicting a fictional romantic relationship between two teenage girls,” Case v.
`
`Unified Sch. Dist. No. 233, 908 F. Supp. 864, 867 (D. Kan. 1995), because they
`
`believed the book “promoted or glorified” a “lifestyle” they viewed as sinful and
`
`abnormal. Id. at 871.
`
`As discussed further below, government officials have considerable discretion
`
`to decide what books to remove from public libraries—but that discretion is not
`
`boundless. To the contrary, as these examples illustrate, the First Amendment has a
`
`role to play in assessing the removal of books from public library shelves. Indeed,
`
`no court faced with removal of books from public libraries has held that no First
`
`Amendment scrutiny applies. See GLBT Youth in Iowa Sch. Task Force v. Reynolds,
`
`No. 24-1075, 2024 WL 3736785, at *2–3 (8th Cir. Aug. 9, 2024) (rejecting argument
`
`
`
`6
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`

`

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`that “the placement and removal of books in public school libraries” constitutes
`
`government speech); Sund v. City of Wichita Falls, Tex., 121 F. Supp. 2d 530, 548
`
`(N.D. Tex. 2000) (holding that book removals from public library shelves must
`
`undergo First Amendment scrutiny, which applies with “even greater force” than in
`
`the school library context).3
`
`B.
`ALA, Finley, and Forbes are not to the contrary.
`Notwithstanding the fact that Pico “cannot be overruled by the en banc court,”
`
`Def. Suppl. Br. at 23, the panel dissent argued that a library’s book removal choices
`
`“are government speech to which the Free Speech Clause does not apply.” Little,
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`103 F.4th at 1177 (Duncan, J., dissenting). To make that argument, the dissent
`
`primarily relied on United States v. American Library Association, Inc., 539 U.S.
`
`194 (2003), National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), and
`
`Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998)—
`
`three cases that are not about government speech, and that do apply First
`
`Amendment scrutiny.
`
`
`3 Every appellate court to consider restrictions on access to the ideas contained in
`public libraries has held that they must withstand First Amendment scrutiny. See
`Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1251 (3d Cir.
`1992); Neinast v. Bd. of Trs. of the Columbus Metro. Libr., 346 F.3d 585, 591 (6th
`Cir.2003); Doe v. City of Albuquerque, 667 F.3d 1111, 1128 (10th Cir. 2012).While
`these cases consider restrictions on physical access to public library buildings, if
`First Amendment scrutiny did not attach to restrictions on libraries’ provision of
`information—including, in large part, through the books on their shelves—it would
`not attach to restrictions on building access either.
`
`
`
`7
`
`

`

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`The dissent was right to point to these cases for the proposition that, in the
`
`context of certain government programs—including Internet access in public
`
`libraries, arts funding, and political debates on public-broadcast television—the
`
`government has broad, even content-based, discretion to choose what speech to
`
`include. But it overlooked the fact that, in each of those cases, the Supreme Court
`
`held that private speech was at issue—and that the First Amendment applied.4
`
`In United States v. American Library Association (“ALA”), the Court
`
`considered the constitutionality of a program that gave “federal assistance to [public
`
`libraries] to provide Internet access” as long as they installed “software to block
`
`images that constitute obscenity,” “child pornography” or material that is “harmful
`
`
`4 The dissent also relied on Pleasant Grove City v. Summum, 555 U.S. 460 (2009).
`Summum is a government speech case, and it follows the proper approach for
`determining when government speech is at issue. See id. at 470–472 (considering
`history, public perception, and extent of government control). As Plaintiffs argue,
`not one of those factors supports the argument that the government is speaking when
`it removes books from public library shelves. Pl. Suppl. Br. at 21–36. Nor does
`Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024) change the result. While the First
`Amendment protects curation by private actors, it typically prohibits “curation” by
`the government. See id. at 2407 (directing this Court to revisit its decision regarding
`government regulation of private curation because, though “[s]tates (and their
`citizens) are of course right to want an expressive realm in which the public has
`access to a wide range of views . . . the way the First Amendment achieves that goal
`is by preventing the government from tilting public debate in a preferred direction.”
`(cleaned up and citation omitted)).
`
`
`
`
`8
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`

`

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`to minors.” 539 U.S. at 199 (plurality op.).5 The restriction was content-, not
`
`viewpoint-based.
`
`To determine whether the federal law imposed an unconstitutional condition,
`
`the plurality began by “examin[ing] the role of libraries in our society.” Id. at 203
`
`(plurality op.). It explained that a public library’s role is to “decid[e] what private
`
`speech to make available to the public,” id. at 204 (emphasis added), and it cited
`
`Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788 (1985), a
`
`nonpublic forum case, with approval in upholding the federal law. ALA, 539 U.S. at
`
`206 (plurality op.). See Section II.C infra. While noting that “[p]ublic library staffs
`
`necessarily consider content in making collection decisions and enjoy broad
`
`discretion in making them,” id. at 205 (plurality op.), nowhere did the plurality
`
`conclude that that discretion is boundless. Instead, it emphasized the ways in which
`
`the restrictions at issue were consistent with the nature, history, and purpose of
`
`libraries’ collection decisions more broadly, and—narrowly echoed by Justice
`
`Kennedy in his concurrence—highlighted the ease with which a patron could
`
`unblock any improperly blocked site, something that would not matter if blocking
`
`raised no First Amendment concerns to begin with. Id. at 208–09 (plurality op.); see
`
`also id. at 214 (Kennedy, J., concurring).
`
`
`5 The law at issue, 47 U.S.C.A. § 254(h)(7)(G), defined “harmful to minors”
`consistent with the requirements of Ginsberg v. New York, 390 U.S. 629 (1968) and
`Miller v. California, 413 U.S. 15 (1973).
`
`
`
`9
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`

`

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`The plurality also concluded that “[t]he principles underlying Forbes and
`
`Finley . . . apply to a public library’s exercise of judgment in selecting the material
`
`it provides to its patrons,” id. at 205. As discussed below, see Section II.B infra,
`
`those “principles” include First Amendment scrutiny and a prohibition on invidious
`
`viewpoint discrimination aimed at suppressing dangerous ideas.
`
`Like ALA, Finley is not a case about government speech, and it is a case that
`
`applies First Amendment scrutiny. In that case, the Supreme Court considered a
`
`facial challenge to a federal law that required the National Endowment for the Arts
`
`to “tak[e] into consideration general standards of decency and respect for the diverse
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`beliefs and values of the American public” when considering grant applications.
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`Finley, 524 U.S. at 572 (cleaned up, citation omitted). The Court recognized that the
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`NEA “may decide to fund particular projects for a wide variety of reasons,” from
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`technical proficiency to creativity to contemporary relevance, and that “[a]ny
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`content-based considerations that may be taken into account in the grant-making
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`process are a consequence of the nature of arts funding.” Id. at 585. It upheld the law
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`on its face.
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`At the same time, the Court was careful to explain that “the denial of a grant
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`. . . [because] of invidious viewpoint discrimination” would present a different
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`scenario. Id. at 586–87. Far from immunizing the NEA’s decision-making from First
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`Amendment scrutiny, the Court made clear that, “even in the provision of subsidies,
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`the Government may not ‘aim at the suppression of dangerous ideas,’” id. at 587
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`(quoting Regan, 461 U.S. at 550), and that “a more pressing constitutional question
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`would arise if Government funding resulted in the imposition of a disproportionate
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`burden calculated to drive ‘certain ideas or viewpoints from the marketplace,’” id.
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`(quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502
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`U.S. 105, 116 (1991)).
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`Finally, in Forbes, the Court held that a state-owned public television
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`broadcaster could exclude an independent candidate from its election debate as long
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`as the exclusion decision was “a reasonable, viewpoint-neutral exercise of
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`journalistic discretion,” 523 U.S. at 669—squarely applying the First Amendment
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`scrutiny that governs nonpublic forums. See Section II.C, infra. Recognizing that,
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`“in many cases it is not feasible for the broadcaster to allow unlimited access to a
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`candidate debate,” the Court nevertheless held that “the requirement of neutrality
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`remains; a broadcaster cannot grant or deny access to a candidate debate on the basis
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`of whether it agrees with a candidate’s views.” Id. at 676.
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`Thus, while the government may have “broad discretion to make content-
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`based judgments in deciding what private speech to make available to the public” in
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`public libraries, see ALA, 539 U.S. at 204–05 (plurality op.) (discussing Forbes and
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`Finley), it does not have complete immunity from First Amendment scrutiny.
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`II. GOVERNMENT OFFICIALS CANNOT REMOVE LIBRARY
`BOOKS TO PRESCRIBE WHAT SHALL BE ORTHODOX IN
`MATTERS OF OPINION.
`Supreme Court cases make clear not only that the First Amendment applies,
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`but also what it requires. “At the heart of the First Amendment lies the principle that
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`each person should decide for himself or herself the ideas and beliefs deserving of
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`expression, consideration, and adherence.” Turner Broad. System, Inc. v. F.C.C.,
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`512 U.S. 622, 641 (1994). “Our whole constitutional heritage rebels at the thought
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`of giving government the power to control men’s minds,” including through “telling
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`a man . . . what books he may read[.]” Stanley v. Georgia, 394 U.S. 557, 565 (1969).
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`In the context of public libraries, this First Amendment principle demands that
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`government officials cannot remove books in order to “prescrib[e] what shall be
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`orthodox in . . . matters of opinion.” Pico, 457 U.S. at 872 (plurality op.) (quoting
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`Barnette, 319 U.S at 642.
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`Every doctrinal path available to the Court—the First Amendment standards
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`that govern (1) the removal of books from school libraries, (2) limitations on
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`government programs that pick and choose among private speech, and (3) nonpublic
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`forums—all lead to the same result: government officials cannot remove books “[to
`
`aim] at the suppression of dangerous ideas,” Regan, 461 U.S. at 550 (citation
`
`omitted), “to drive certain ideas or viewpoints from the marketplace,” Finley, 524
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`U.S. at 587 (marks and citation omitted), or to instill a pall of orthodoxy in matters
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`of opinion, Barnette, 319 U.S. at 642.
`
`A.
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`Pursuant to the school library cases, removals that seek to impose a
`pall of orthodoxy in matters of opinion violate the First
`Amendment.
`Whatever they make of Pico, courts assessing the removal of books from a
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`school library essentially boil the First Amendment question down to “whether the .
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`. . [removal] decision . . . was motivated by . . . a desire to promote political
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`orthodoxy and by opposition to the viewpoint of the book.” ACLU of Fla., Inc. v.
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`Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1227 (11th Cir. 2009). That is the Pico
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`plurality’s rule: government actors “may not remove books from school library
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`shelves simply because they dislike the ideas contained in those books and seek by
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`their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion,
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`or other matters of opinion,’” 457 U.S. at 872 (quoting Barnette, 319 U.S. at 642).
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`It is also Justice Blackmun’s rule: “school officials may not remove books [from
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`school libraries] for the purpose of restricting access