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Plaintiffs suing the Prattville library argued Wednesday that government speech doctrine does not apply to the selection of library books.
The Autauga-Prattville Public Library board of trustees has focused on challenging a lawsuit filed by patrons by questioning the plaintiffs’ standing.
However, the board had to argue the merits of the case in order to oppose the plaintiffs’ motion for a preliminary injunction, and the argument from the board rests almost entirely on the concept that libraries have broad discretion to pick and choose library books under the government speech doctrine.
“…as for the single argument on which it hangs its hat, the Board is wrong: the government speech doctrine does not apply to Plaintiffs’ First Amendment claims,” the plaintiffs wrote in their most recent motion. “This Court should enter a preliminary injunction.”
The plaintiffs argue that the government speech doctrine allows governments to express a viewpoint through the selection of monuments, posters promoting its war effort, or its own parades—but does not extend to what library books are placed on shelves.
The plaintiffs cite Matal v. Tam as a warning that courts “must exercise caution before extending our government speech precedents.”
“'[S]imply affixing a government seal of approval,’ such as via federal trademark registration, does not transform the speech into a government-endorsed message,” the plaintiffs argue. “Indeed, if it did, the ‘government could silence or muffle the expression of disfavored viewpoints.’ The Board ignores this warning. The Court should not.”
The plaintiffs cite three court cases, including one recent decision within the 11th Circuit, that reinforce that the selection of library books do not fall under government speech.
“The Court is not persuaded that decisions regarding the content of school libraries is [sic] ‘government speech’ that is not subject to any constitutional constraints,” a Florida district judge ruled in a challenge to book removals at Escambia County Schools.
And in Arkansas, a judge issued a ruling that dealt specifically with censorship at a public library.
“Defendants are unable to cite any legal precedent to suggest that the state may censor non-obscene materials in a public library because such censorship is a form of government speech,” the judge wrote.
The plaintiffs dismissed the board’s argument that another 11th Circuit precedent proves otherwise. The board argued that a line from an opinion in ACLU of Florida v. Miami-Dade County School Board indicates that the selection of library materials is government speech.
“As the Board acknowledges, the Eleventh Circuit disposed of the case explicitly without reaching the question of whether a school library’s removal of a certain book was government speech,” the plaintiffs argued. “Thus, the court’s reference to the government-speech doctrine is—definitionally—dicta. And other district courts in this Circuit have understood it as such.”
Dicta refers to a comment made by a judge in an opinion that is not necessary to resolve the case, which is not legally binding on other courts.
Plaintiffs say this reliance on dicta does not answer the three fundamental questions of whether the selection of library books meets the criteria for government speech.
“In actual government speech cases, the Eleventh Circuit uses three factors to determine whether the doctrine applies: “(1) whether the government maintains control over the speech; (2) whether the type of speech has traditionally communicated government messages; and (3) whether the public would reasonably believe that the government has endorsed the speech,” the plaintiffs argue.
“…But the board’s opposition doe snot discuss these factors—perhaps because all three confirm that public libraries’ curation decisions are not government speech.”
This is likely the last substantive filing necessary before Judge Myron Thompson issues a ruling on the board’s motion to dismiss the case entirely and plaintiffs’ motion for a preliminary injunction. If Thompson were to issue a preliminary injunction, it would likely roll back the Prattville Library policy to its original form before the policies were changed under leadership of a newly constituted board of trustees,
There are still a few items left to be submitted or ruled on though before that weighty decision. The Freedom to Read Foundation has requested to submit an amicus brief in the case, and defendants have until Oct. 1 to approve of or oppose that motion. Plaintiffs have already given their support to including the amicus brief.
Thursday in a surprise filing, the board asked the court for permission to file a supplemental brief to its motion to dismiss the case, citing new precedent from the 11th Circuit upholding a state rule that transgender individuals must undergo surgery before they can change the sex designation on their licenses.
Plaintiffs Thursday moved to oppose that motion, arguing that the briefing is too late and that the precedent would not be relevant anyway.
“Moreover, Corbitt will not aid the Court in analyzing those arguments, nor the arguments raised in the Board’s renewed motion to dismiss,” plaintiffs wrote. “The Board did not attach its proposed brief, making it difficult for the Court to judge whether that brief would be useful. But because Corbitt provides no applicable gloss on the Board’s jurisdictional arguments nor the government speech doctrine, it would not.”
Plaintiffs also question how the brief would support the board’s motion to dismiss, which is based purely on issues of standing and not government speech doctrine.
