What Has the Supreme Court Said About When Government Libraries May Remove Books?

My one disagreement with the Eighth Circuit’s decision in Turkish Coalition of America, Inc. v. Bruininks (8th Cir. May 3, 2012) has to do with the Circuit’s description of Board of Ed. v. Pico:

TCA relies on [Pico], in which secondary school students challenged a school board’s removal of certain books from school libraries. In Pico, the Supreme Court, citing the “right to receive ideas,” id. at 867, ruled that the First Amendment was violated if the school board members “intended by their removal decision to deny [students] access to ideas with which [the school board] disagreed, and if this intent was the decisive factor in [the] decision,” id. at 871.

This, I think, misdescribes Pico, in which a majority of the Court actually didn’t rule on the subject.

  1. All nine Justices in Pico seemed to agree that removing books for some reasons would be constitutional, for instance if the books used vulgarities that were reasonably seen as inappropriate for the books’ target age group.
  2. Four Justices (Brennan, Marshall, Stevens, and Blackmun) took the view that removing books based on disagreement with the ideas that the books expressed would be unconstitutional; they therefore voted to affirm the appellate court decision, a decision that sent the case back to trial court for factfinding on the motivation for the removals.
  3. But the same number of Justices — four (Burger, Powell, Rehnquist, and O’Connor) — took the view that a government’s removal of books from its own library was constitutionally permissible (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans), and thus no further factfinding on the true motives was necessary.
  4. That leaves one Justice, Justice White. He did concur in the judgment, voting to affirm the lower court decision that sent the case down for factfinding. But he expressly declined to endorse the constitutional view of either group. Rather, he voted to send the case down to the lower courts for further factfinding, without deciding whether a finding of viewpoint discrimination by the school board would indeed qualify as a First Amendment violation.

Here is Justice White’s reasoning:

The District Court found that the books were removed from the school library because the school board believed them “to be, in essence, vulgar.” Both Court of Appeals judges in the majority concluded, however, that there was a material issue of fact that precluded summary judgment sought by petitioners. The unresolved factual issue, as I understand it, is the reason or reasons underlying the school board’s removal of the books. I am not inclined to disagree with the Court of Appeals on such a fact-bound issue and hence concur in the judgment of affirmance. Presumably this will result in a trial and the making of a full record and findings on the critical issues.

The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case. If, for example, the District Court concludes after a trial that the books were removed for their vulgarity, there may be no appeal. In any event, if there is an appeal, if there is dissatisfaction with the subsequent Court of Appeals’ judgment, and if certiorari is sought and granted, there will be time enough to address the First Amendment issues that may then be presented.

I thus prefer the course taken by the Court in Kennedy v. Silas Mason Co., 334 U.S. 249 (1948), a suit involving overtime compensation under the Fair Labor Standards Act. Summary judgment had been granted by the District Court and affirmed by the Court of Appeals. This Court reversed, holding that summary judgment was improvidently granted, and remanded for trial so that a proper record could be made. The Court expressly abjured issuing its advice on the legal issues involved. Writing for the Court, Justice Jackson stated:

“We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts. While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.

“Without intimating any conclusion on the merits, we vacate the judgments below and remand the case to the District Court for reconsideration and amplification of the record in the light of this opinion and of present contentions.”

We took a similar course in a unanimous per curiam opinion in Dombrowski v. Eastland, 387 U.S. 82 (1967). There we overturned a summary judgment since it was necessary to resolve a factual dispute about collaboration between one of the respondents and a state legislative committee. We remanded, saying: “In the absence of the factual refinement which can occur only as a result of trial, we need not and, indeed, could not express judgment as to the legal consequences of such collaboration, if it occurred.”

The Silas Mason case turned on issues of statutory construction. It is even more important that we take a similar course in cases like Dombrowski, which involved Speech or Debate Clause immunity, and in this one, which poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here. I therefore concur in the judgment of affirmance.

So Pico doesn’t stand for anything on the First Amendment question: The Justices split 4-4 on that question, and Justice Brennan announced the decision of the Court only because his procedural bottom line (send the case down to the lower court for application of his First Amendment test) was the same as Justice White’s (send the case down to the lower court for further factfinding, and wait to decide the First Amendment issue later). And this agreement on the procedural bottom line doesn’t give Justice Brennan’s four-Justice opinion any more precedential weight than the weight of Chief Justice Burger’s four-Justice opinion.

Note also that the Court’s fractured decision in United States v. American Library Ass’n — where there was also no majority opinion — doesn’t resolve the issue, either. And no other decisions outside the library context dictate, or in my view strongly suggest, a result. If the library were treated as a “designated public forum” that’s generally open for a nearly limitless variety of speech, then the library wouldn’t be able to set up viewpoint-based restrictions on such speech. But library shelving decisions have never been treated as such a forum, because the choice of what books to select in the first place inherently involves some content-based and often some viewpoint-based judgment. There’s no caselaw that squarely tells us whether there are nonetheless constitutional constraints on such judgment, or whether removal decisions are constitutionally different from selection decisions.