The Legal Doctrine That Says Censorship Is a First Amendment Right

This is worth digging into the legal weeds because A) it's going to keep coming up and B) a Florida case successfully beat it.

When it comes to free speech, it's a topsy turvy country out there. Take the Alachua County School Board in Florida. They had a batch of parents doing that thing where they would protest a book by reading isolated excerpts in board meetings, going for shock value without context. The board is now in trouble for objecting to that language. Their attorney has given them guidelines to help them Be Better, including this one--

Merely offensive language is not enough. Comments when viewed as a whole must be obscene (crude, abusive, vulgar, pornographic or indecent).

In other words, the naughty speech the member of the public is delivering in the meeting must be considered in the larger context of their speech. Yes, the same naughty excerpt that they're reading without any consideration of the larger context of the complete work. The context of the quoting should be considered, but the context of the actual quote can be ignored. 

Also in the Free State of Florida, attorneys are working another theory by which the First Amendment is used to justify the suppression of First Amendment rights. 

The authors of And Tango Makes Three write in The Atlantic about this theory, deployed in their lawsuit over the banning of their book in Escambia Couty schools.

In casting about for a way to defend the ban, the school board landed on the theory that library books represent “government speech.” The government, the board explained, has its own First Amendment rights and must be allowed to speak as it wishes. Thus, it can remove any library book it finds objectionable for any reason.

This is a silly argument, but this isn't the first time it has been rolled out. The Supremes used it in 2009 in Pleasant Grove City v. Summum, ruling that Pleasant Grove, Utah, could refuse to allow a certain monument in its park because "Placing a monument in a public park is government speech, so it is not controlled by the First Amendment." In other words, the government is exercising its own First Amendment rights when it refuses to let someone else speak. In 2015 they let Texas refuse to issue certain specialty license plates.

The government speech argument was used against libraries successfully this May in the wingnut-let First Circuit Court of Appeals issued a divided opinion that nobody can challenge the banning of books because that is government speech. It starts from the not unreasonable position that any library involves curation choice because no library can carry all the books in the world. 

Wrote Judge Stuart Kyle Duncan for the majority, "That is what it means to be a library—to make judgments about which books are worth reading and which are not, which ideas belong on the shelves and which do not. If you doubt that, next time you visit the library ask the librarian to direct you to the Holocaust Denial Section."

I'll give the theory high marks for honesty. But there are some issues here. First of all, I'm not sure librarians would agree that their job is to decide "which books are worth reading"-- there's also a hefty helping of "what the customers want to read." Sure, they are supposed to separate the junk from the better stuff. Duncan also throws in the old "if the library doesn't carry it, they can get it somewhere else," and I'm trying to imagine what act of government censorship that would not cover. 

This is some seriously upside-down thinking. The First Amendment is meant to prevent government censorship, not provide legal cover for it.

But if you want some excellent arguments against applying the theory of government speech to Florida-style library book bans, we need look no further than another Florida book ban case recently decided in  the US Middle District Court of Florida just a couple weeks ago. In his decision, Judge Carlos Mendoza pointed out several problems with the argument.

One was that the way Florida's book banning law is constructed, the bans constitute not government speech at all. Parents, Mendoza wrote, certainly have the right to object to “direct the upbringing and education of children,” but the government cannot “repackage their speech and pass it off as its own.”

Mendoza warned of the danger of the government speech doctrine, quoting from Matal v. Tam (a case about a band trying to register an offensive band name). 

But while the government-speech doctrine is important—indeed, essential—it is a doctrine that is susceptible to dangerous misuse. If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.

Mendoza considers other courts' viewpoints on the question of whether or not library book selection constitutes government speech, and the winning quote comes from the Eighth Circuit Court in GLBT Youth in Iowa Schools Task Force v. Reynolds:

The Eighth Circuit has soundly rejected the argument, stating: “if placing these [disparate] books on the shelf of public school libraries constitutes government speech, the State ‘is babbling prodigiously and incoherently.’”

The law does not, Mendoza argues, involve any sort of "expressive activity" by the government, but simply following a law that requires "the removal of books that contain even a single reference to the prohibited subject matter, regardless of the holistic value of the book individually or as part of a larger collection."

Perhaps this crazy-pants doctrine is going to work its way up to the Supremes (Mendoza's decision will undoubtedly be appealed), in which case who knows if they will cheerfully declare that the government's First Amendment rights include the right to take away citizens' First Amendment rights. It seems Mendoza may even have anticipated that journey, as he has quoted Justice Alito several times in his opinion. Here's hoping libraries survive this.