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The Autauga-Prattville Public Library board must file it’s opposition by Friday to a motion from plaintiffs for a preliminary injunction that would block the library’s policies.
While the board attempted to have the case dismissed on standing without having to argue the merits, attorney Bryan Taylor hinted in court last month about where their argument would draw from.
Taylor confirmed to APR that the board is pointing to a dissent written by Judge Stuart Kyle Duncan in a 5th Circuit Court ruling on Little v. Llano County. The other two judges in that three-judge panel found that the removal of 17 children’s books at the Llano Public Library violated law and ordered the books placed back on the shelf.
“Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree,” the court ruled. “Because that is apparently what occurred in Llano County, Plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment claim, as well as the remaining factors required for preliminary injunctive relief.”
But in Duncan’s 46-page dissent, he argues that the other two judges created an inoperable framework that effectively will make courts the “library police” and argues that library books should be considered government speech.
“Henceforth, these rules will govern each and every public librarian in this circuit, each and every time she takes a book out of circulation,” Duncan wrote. “And who will apply these rules? Federal judges, naturally. You’ve heard of the Soup Nazi? Say hello to the Federal Library Police.”
Duncan finds that the “simple answer” to the problem is that a library’s selection of books constitutes government speech, an argument that has already been posited by Laura Clark, who serves as the APPL board attorney.
Although the 5th Circuit panel ultimately ruled that the removal of the books violated the free speech clause of the First Amendment, that decision is now void as the 5th Circuit Court has decided to review the case again en banc, meaning all circuit judges will rehear the arguments and come to a new conclusion.
That leaves the door open for precedent to be set that libraries can decide what content to remove or acquire regardless of what the disfavored content is.
Judge Jacques L. Weiner took issue with Duncan’s idea that their ruling would turn judges into the library police.
“The dissent accuses us of becoming the ‘Library Police,’ citing a story by author Stephen King. But King, a well-known free speech activist, would surely be horrified to see how his words are being twisted in service of censorship,” Weiner wrote. “Per King: ‘As a nation, we’ve been through too many fights to preserve our rights of free thought to let them go just because some prude with a highlighter doesn’t approve of them.’ Defendants and their highlighters are the true library police.”
The APPL board must file its opposition to plaintiff’s request for a preliminary injunction by Friday.The case differs from Little v. Llano County in that this lawsuit deals primarily with policies at the Prattville Library that would impact the director’s decision to acquire or remove certain books. While numerous books have been pulled from shelves, it is unclear whether those books will be permanently removed from the library, which could trigger a new claim.
