A Definitive Case

In September of 2000 the US District Court in Texas made its final decision in a case known as Sund v. City of Witchita Falls (121 F.Supp.2d 530). The case has some striking similarities to the library controversy in West Bend, and illustrates how courts apply Free Speech principles and established precedents to questions of censorship. Once again, it appears that much of the West Bend complaint has already been dealt with elsewhere. A modicum of homework should have made it clear to the West Bend censors that there was nothing to be gained by undertaking the controversy that has lead to so much community bitterness.

The court's opinion in this case directly contradicts many of the legal claims made by SafeLibraries, Ms. Maziarka, and other censors:

• The idea that Heather Has Two Mommies could even remotely qualify as "obscene" is so ridiculous it was never seriously mentioned in this case.
• Even when prompted by community input, governments cannot censor on the basis of content or point of view (when a book falls within protected speech)
• Courts take censorship seriously, even when very small in scale, affecting only a handful of books in a small town library.
• Re-shelving (moving books from the children's area to the adult area within the library) can be an unlawful infringement upon Free Speech, even when no other access restrictions are put in place.
• Parents concerned about what their children might find in the library should accompany their children to the library, and have no right to inflict their opinions on other parents or on the community as a whole.

The controversy in Wichita Falls started in 1997, when the public library there purchased two copies each of Leslea Newman's Heather Has Two Mommies and Michael Willhoite's Daddy's Roommate. Heather Has Two Mommies is on the Maziarka List, meaning that it's one of the books challenged in West Bend by Ginny Maziarka and the so-called West Bend Citizens for Safe Libraries. I reviewed the book in a blog post of August 26th. Daddy's Roommate is sufficiently similar to Heather to assume that it, too, would have been objected to by Maziarka and the WBC4SL, but the West Bend library just doesn't have a copy.

In the words of the court's decision

". . . in May 1998, a number of individual and special interest groups began attempts to censor the Books-which they considered to be offensive and objectionable. These individuals and groups, many of whom objected to the perceived messages of Heather and Daddy's Roommate on religious grounds, felt as if they were waging a “moral battle” against the Books.

The city's Library Advisory Board agreed to review the books, and after careful consideration made a non-binding recommendation that the books remain in the children's area of the library. This did not deter the would-be censors, who took their complaint to the City Council. The council at first resisted, but after what the court described as "relentless pressure," came up with what they thought was a compromise. Their "compromise" was a bill that came to be known as the "Altman Resolution," which allowed citizens to force the library to remove (i.e., re-shelve) books from the children's area to the adult area within the library. The resolution allowed this re-shelving process to be applied to books intended for children 12 and younger, if a specifically worded petition were signed by at least 300 adult library card holders.

In 1999, more than 300 signatures on the specified petition were gathered and turned over to the library, and the library complied with the Altman Resolution by moving the books from the children's section to the adult section. A group of parents and their children sued the city and the library on Free Speech grounds. They were quickly granted a temporary injunction requiring the books to be returned to the children's area. A short time later this became permanent, when the court ruled definitively against the city and the censors.

The court's "Conclusions of Law" were unequivocal:

The Altman Resolution, both on its face and as applied to the removal of Heather Has Two Mommies and Daddy's Roommate from the children's area of the Library to the adult section, violates Plaintiffs' federal and state constitutional rights to receive information. The Resolution and the Book removals burden fully-protected speech on the basis of content and viewpoint and they therefore cannot stand.
. . . .
The right to receive information is vigorously enforced in the context of a public library, “the quintessential locus of the receipt of information.” . . . In Pico, for example, the Supreme Court made clear that government officials may not remove books from school library shelves “simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’
. . . .
The Wichita Falls Public Library, like all other public libraries, is a limited public forum for purposes of First Amendment analysis. . . . In a limited public forum, the government's ability to restrict patrons' First Amendment rights is extremely narrow. Thus, the City cannot limit access to library materials solely on the basis of the content of those materials, unless the City can demonstrate that the restriction is necessary to achieve a compelling government interest and there are no less restrictive alternatives for achieving that interest.
. . . .
In addition, because the only children's books located in the adult sections of the Library will be those removed under the Altman Resolution, the Resolution attaches an unconstitutional stigma to the receipt of fully-protected expressive materials.
. . . .
Moreover, if a parent wishes to prevent her child from reading a particular book, that parent can and should accompany the child to the Library, and should not prevent all children in the community from gaining access to constitutionally protected materials. Where First Amendment rights are concerned, those seeking to restrict access to information should be forced to take affirmative steps to shield themselves from unwanted materials; the onus should not be on the general public to overcome barriers to their access to fully-protected information.