One of the most important First Amendment cases in America is happening in Texas right now. At oral arguments before the 5th Circuit Court of Appeals on Tuesday, conservative lawyer Jonathn Mitchell asked the court to discard a ruling that has protected Texas libraries since 1995. If his argument is successful, it would weaken public libraries’ protections against book bans.
The current case started in 2021. Seven library patrons in Llano County sued officials for removing 17 books from their shelves. These books dealt with racism, rights struggles, and LGBT issues. Attacking libraries for carrying “woke” material has become a common practice of the Texas right, and they have been successful in stripping numerous titles from both schools and public libraries.
The requests for removal came from local community organizers accusing the library of promoting “critical race theory,” another common conservative buzz-phrase used to attack material seen as too far left-wing politically. Eight of the books were restored by the order of District Judge Robert Pitman.
The case got the attention of Republican attorneys general across the nation. Eighteen of them, including our own Ken Paxton. Florida Solicitor General Henry Whitaker spoke to the court.
Mitchell is looking to overturn Campbell v. St. Tammany Parish School Board. In 1995, the 5th Circuit ruled that governments were not allowed to ban books from libraries simply because they did not like the content. The ruling only applied to Texas, Louisiana, and Mississippi. The book in question then was Voodoo & Hoodoo by Jim Haskins, a history of religious traditions from Caribbean and African people that became popular on the Gulf Coast.
By pushing the 5th Circuit to reconsider Campbell, the attorneys general are hoping to see the case move to the conservative U.S. Supreme Court. There, a ruling might possibly empower conservative groups to strip libraries of their collections for political or bigoted reasons.
“Unlike the First Amendment, which has been written into the constitution for 233 years, the government speech doctrine is a judge-made rule of relatively recent vintage,” Matthew Borden, an attorney for the plaintiffs, said in court. “When you have it being used to do the things that the First Amendment doesn’t allow — discriminate by viewpoint, suppress unpopular ideas — … the doctrine has to give way.”
Texas leads the nation in book bans according to PEN America. The fight against “woke” books being publicly available through schools or libraries has fueled everything from these challenges to the push for school vouchers. Proponents of the bans claim that simply by making the books available, the government is engaging in speech biased against Republicans. Opponents say the removals are also free speech as well as censorship. Current law is on the side of the opponents, but with eighteen of the country’s top lawyers arguing in front of a right-wing court, that may soon change.
