Court: Lawsuit Can Continue Against Library That Moved All LGBTQ Children’s Books To The Adult Section
The First Amendment doesn't just protect what you say. It also protects your right to hear what others say. It guarantees a right to published information. It protects a whole lot of stuff certain politicians sincerely wish it didn't because it gets in the way of pushing their bigoted ideals.
Right now, there's a wave of anti-LGBTQ legislation sweeping the country. Legislators - pretending they care about children - are trying to prevent everyone from accessing certain creative expression (or saying certain things) these politicians don't agree with.
And pretty much every time they engage in this form of censorship, they get smacked down by courts. The Constitution doesn't care about your hateful feelings. Rights must be respected, even by petty would-be tyrants undeserving of anyone's respect.
A lawsuit, filed by patrons of a county library in Arkansas, has been allowed to move forward by a federal court. The First Amendment lawsuit plausibly alleges the library's decision to move anything determined to be LGBTQ" from the children's section to the adult's section violates the First Amendment right to equitable access to information. (via Courthouse News Service)
Here's how this started, according to the decision [PDF] that moves this lawsuit forward:
[I]n late 2022 or early 2023 the Crawford County Library System implemented a policy under which its library branches must remove from their children's sections all books containing LGBTQ themes, affix a prominent color label to those books, and place them in a newly-created section called the social section." Plaintiffs allege this policy was imposed on the Library System by the Crawford County Quorum Court in response to political pressure from constituents who objected, at least partly on religious grounds, to the presence of these books in the children's section.
The use of a court to pressure a (government-funded) library into doing something it had never felt a need to do before is already a pretty plausible First Amendment cause of action. If the quorum court hadn't imposed this policy, there's a good chance the library would never have bothered stigmatizing certain content.
This sort of thing is not an anomaly in the United States, much less Arkansas in particular.
This is not the only lawsuit currently pending in the Western District of Arkansas that concerns children's books in public libraries. In Fayetteville Public Library et al. v. Crawford County, Arkansas et al., Case No. 5:23-cv-5086, a host of public libraries, librarians, library patrons, nonprofits, and booksellers sued various state actors, challenging the constitutionality of Arkansas Act 372 of 2023 (Act 372"). Section 1 of Act 372 defines a new Class A misdemeanor called furnishing a harmful item to a minor." Section 5 requires that [e]ach county or municipal library shall have a written policy for addressing challenged material that is physically present in the library and available to the public," and imposes certain minimum criteria that libraries must incorporate into those policies.
It's a movement in Arkansas, propelled by bigoted legislators and assisted by bigoted residents and the occasional county quorum court. No doubt the listed lawsuit will end with in a loss for the government but, for the time being, these litigants want this particular county library to stop violating the First Amendment.
The state argued the plaintiffs had no standing to bring a lawsuit against the library. Wrong, says the court:
The amended complaint alleges that all three Plaintiffs are members and users of the Crawford County Library System," and that their minor children are also users of the Crawford County libraries." Their pleadings also allege that the County's library system has segregated children's books with LGBTQ themes onto separate shelves in the adult section of the library and affixed stigmatizing labels to them signaling controversial content, and that the motivation for this policy was at least in part religious. Since Plaintiffs are members and users of these libraries, one can reasonably infer from the pleadings that they have directly encountered the shelves at issue here. And Plaintiffs obviously find this practice unwelcome, as they have brought this lawsuit with the goal of ending it. That is sufficient to confer standing upon them to bring their Establishment Clause claim, at least at this early stage of the lawsuit.
It also argued no injury had been suffered because the books were merely moved (and marked with the county's LGBTQ equivalent of the scarlet letter...), rather than removed. Wrong again, says the court.
As for Plaintiffs' claim that the County's policy restricts their First Amendment right to receive information: the County argues Plaintiffs have not been injured because their access to the books in question has not been restricted. Children are still allowed to roam the adult section, and there are no formal limitations on who may browse or check out the books at issue here. However, this argument confuses restriction with outright prohibition. When a plaintiff shows that her ability to access information has been impeded by state action, however minimally, then that is a sufficiently concrete injury to confer standing for a First Amendment claim.
Moving the books is problematic on its own. Making sure anyone who tries to access them has to carry around a marked" book is worse.
Plaintiffs allege that the County has removed children's books from the children's sections of its libraries where children and their parents would expect to find them, and has attached stigmatizing labels to them that could subject individuals who browse them or check them out to embarrassment or opprobrium from library staff members or other patrons. This is a sufficiently concrete burden on Plaintiffs' ability to access information to give them standing to bring this lawsuit.
And that's obviously the point of this unconstitutional exercise: to out" patrons who express an interest in content the government (under pressure from resident bigots) has decided needs to be not only segregated, but clearly marked as something the government dislikes.
The state also argued there was no First Amendment right to access information, at least not in this context. It quoted a Supreme Court decision dealing with public school libraries and claimed this meant public county libraries weren't subject to this part of First Amendment protections. Unsurprisingly, it's wrong here as well.
This argument is simply wrong, on two fundamental levels. First, Supreme Court majorities have in fact repeatedly acknowledged, in a wide variety of contexts, that the First Amendment protects the right to access information. See, e.g., Stanley v. Georgia, 394 U.S. 557, 564 (1969) (It is now well established that the Constitution protects the right to receive information and ideas.") (collecting cases); see also Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read . . . ."). The precise contours of that right may sometimes be complicated or unclear, but there can be no reasonable debate as to whether the right exists and enjoys First Amendment protection.
Second, although the County is correct that Pico dealt with the right to access information in a school library rather than in a library that was open to the general public, this indicates that the right's scope is broad-not narrow.
In that case, dealing with a public school library, the Supreme Court weighed the right to access against the limitations on minors' rights that are part of the school experience. In cases like these, schools may have more latitude to restrict access to information for other overriding government concerns. Even if the court had decided public schools had blanket permission to restrict access to information (and it didn't), that doesn't apply to a case involving a county library accessible by anyone, not just minors/students.
Right now, the bigot-propelled status quo will remain in place. The lawsuit moves forward but the books still remain segregated and labelled. As the court notes, an injunction preventing the library from moving books would prevent it from featuring popular books or moving frequently requested books to a more easily accessed area. But the lack of injunction doesn't mean there's no plausible First Amendment allegations.
Eventually, this will end in the desegregation of these books or the county passing a law attempting to codify its First Amendment violation. Either way, the government will lose and the people will win. And yet, it's clear to anyone observing the state of the nation that losing lawsuit after lawsuit is doing nothing to deter bigots from violating rights in hopes of oppressing certain people and suppressing certain views.