I think the Leesburg/Lake County situation bears out one lesson I've repeatedly emphasized on this blog: the importance of qualified legal advice. The Lake County commissioners took a wise step that is skipped in far too many censorship debates: they consulted the county attorney, asking for a legal opinion on the requested re-shelving. The value of this step is demonstrated by the abrupt end of the censorship campaign. The commissioners clearly understood that they could not accede to the censors' demands because the county attorney's opinion was unequivocal. It is worth noting a few quotations from the attorney's memo to the commissioners, which is available through Open Records Request:
Courts have generally held that the relocation of a book from a children’s section to the adult section of the public library constitutes a violation of the First Amendment of the U.S. Constitution, unless such publications are deemed obscene as that term is defined by the U.S. Supreme Court and Florida Statutes, or unless such decision is based upon established, regular, and facially unbiased procedures for review of controversial materials.In other word, just moving the books from one section to another, depending on the motivation for that move, can violate Free Speech rights. Books can certainly be removed if they are obscene, but determining that a book is obscene must be based on court precedents and state statutes, and not merely on personal opinions. Transparent procedures for considering such actions must avoid giving the appearance of bias.
Therefore, the government cannot limit access to library materials unless the government can demonstrate that the restriction is necessary to achieve a compelling governmental interest and there are no less restrictive means available.Note that here the attorney has carefully included the important phrase "and there are no less restrictive means available." This phrase is critical to understanding Free Speech law, and is nearly always omitted by would-be censors when they talk about the compelling state interest in protecting children from obscene materials.
However, where the government, in making their decision to remove or relocate a publication, ignores the advice of literary experts, ignores the views of librarians and teachers, and ignores the guidance of literary publications that rate books for students, it faces a challenge that the decision was based upon irregular and ad hoc procedures.In other words, pandering to public opinion without considering expert advice can cause legal problems.
In rendering this legal opinion, the county attorney repeatedly cited four court precedents:
Board v. Pico
Counts v. Cedarville School District
Right to Read Defense Committee of Chelsea v. School Committee of the City of Chelsea
Sund v. City of Wichita Falls
These are cases I've relied on quite heavily in this blog and my related website when countering the claims of would-be censors. My estimation of the importance of these cases has gone up a notch after seeing how an attorney applied them to a typical censorship campaign.
This brings up a second important point: not every attorney knows about these cases. While every attorney understands the First Amendment in a general sense, a detailed understanding of all the court decisions and their implications is a specialization not every attorney has. It can be useful, then, to provide a list of these cases to any attorney who is not a First Amendment specialist but who is faced with a censorship issue. The attorney will form her or his own opinion, of course, but providing this list of cases can save a lot of time for everybody.
(Click HERE to see information on these and other cases, including formal citations).