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Federal judge weighs in on whether libraries are “government speech”

The case will be one to watch for Alabamians particularly if it makes its way to the 11th Circuit.

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While the battle over how governments curate library collections broils in Alabama, a district judge in Florida on Monday denounced an argument that library books are “government speech.”

U.S. District Judge Kent Wetherell ruled Monday that a lawsuit can move forward against the Escambia County School District, denouncing an argument from the Florida attorney general that libraries are government speech.

“… the fact that the traditional purpose of a library is to provide information on a broad range of subjects and viewpoints, the court simply fails to see how any reasonable person would view the contents of the school library (or any library for that matter) as the government’s endorsement of the views expressed in the books on the library’s shelves,” Wetherell said in his ruling. “… the speech embodied in a library collection is materially different from the speech embodied in government-sponsored parades, prayers, art exhibits, and monuments on public property.”

Although this is just the opinion of one district judge not even in the state of Alabama, Wetherell’s remarks rebut an argument that has been used by Alabama citizens pushing for moving certain books from sections intended for minors.

Laura Clark, president of the American Center for Law and Liberty, wrote an op-ed for 1819 News in December making the argument that removing books from the library is not a first amendment violation specifically because it is “government speech.” The ACCL and 1819 News were both spawned by Alabama Policy Institute, although API is no longer directly affiliated with either organization.

Both Laura Clark and her husband Matt Clark, who stepped down as president of the ACCL to serve as a senior staff attorney to Alabama Supreme Court Chief Justice Tom Parker, have made the argument that libraries are government speech.

“Books in a public library are considered government speech according to United States v. American Library Assn., Inc. (2003),” Laura Clark wrote in her opinion piece. “In this case, the Supreme Court explained that the government has the discretion to make content-based judgments in deciding what private speech to make available to the public — private speech such as books.”

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The opinion specifically dealt with whether a requirement to enable internet filters in public libraries interfered with the first amendment rights of patrons, but the opinion does note that “to fulfill their traditional missions of facilitating learning and cultural enrichment, public libraries must have broad discretion to decide what material to provide to their patrons.”

With the ongoing lawsuit in Florida, it appears this will be an opinion that book challengers plan to leverage in their attempt to move or remove books they deem too sexually explicit or to contain ideologies they disagree with.

In Escambia County Schools, more than 2,000 books have been removed from shelves—including five dictionaries.

The case will be one to watch for Alabamians particularly if it makes its way to the 11th Circuit Court of Appeals, where a ruling would set precedent for Alabama as well.

Jacob Holmes is a reporter at the Alabama Political Reporter. You can reach him at [email protected]

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