by Gregory T. Smith, E Kenneth Friker, and James W. Fessler

Material selection can be highly contentious as a community may take issue with a particular book and demand that it be removed from their local library. The library’s decision to either agree and remove the book or to disagree and keep the book has legal consequences. What are the legal guidelines a library must follow when a request is made to remove a book? What types of books may be removed?

A federal court of appeals recently addressed this issue after a request was made to remove a book from a Miami-Dade County school library. American Civil Liberties Union of Florida, Inc. v. Miami-Dade School Board, 557 F. 3d 1177 (11th Cir. 2009). The book at issue, “Vamos a Cuba” was a book with basic information about life in Cuba. The book contained information about geography, people, customs, language, and so on. A parent, and former Cuban political prisoner, made a request to the school board that the book be removed from the library because it contained many factual inaccuracies; namely it did not reflect the plight of the Cuban people and distorted the reality of life in the country.

The school board, after holding many hearings and receiving recommendations from school committees, agreed with the requestor and removed all forty-nine copies of the book from its library shelves. A week after the books were removed, several parents, students and the American Civil Liberties Union filed a lawsuit in the Florida federal court system claiming that the removal of “Vamos a Cuba” violated their First Amendment rights to freedom of speech and access to information and that the decision to remove the book denied them of their rights under the Fourteenth Amendment’s due process clause.

In response to a motion to dismiss the lawsuit filed by the school board, the trial court held that the plaintiffs had a likelihood of success on the merits of their claims for violations of the First and Fourteenth Amendments. The school board appealed this decision and the appellate court overruled the trial court, holding that the plaintiffs had no likelihood of success on the merits of any of their claims and that no First or Fourteenth Amendment violation had occurred.

In reaching its decision, the appellate court noted that government officials, when determining which books to discard, may not decide to remove materials “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.” Board of Education v. Pico, 457 U.S. 853, 872 (1982). The appellate court noted that the school board’s decision to remove “Vamos a Cuba” was not motivated by personal feelings, but was made on the grounds that the book contained demonstrably false statements. At the core of the court’s reasoning is the proposition that removal of books from a library that are factually inaccurate does not violate the First Amendment, because for “whatever else it prohibits, the First Amendment does not forbid a school board from removing a book because it contains factual inaccuracies, whether they be of commission or omission. There is no constitutional right to have books containing misstatements of objective facts shelved in a school library.” American Civil Liberties Union of Florida, 557 F.3d at 1202. The appellate court reversed the trial court, holding that the school board did not violate the First or Fourteenth Amendment rights of plaintiffs and that removal of the book was proper. The plaintiffs filed a request with the United States Supreme Court for final review of the case; the Supreme Court denied the request, making the appellate court’s decision final.

Though this case involved a school library, and not a public library, the same First Amendment principles apply regarding selection of material and the grounds on which books may be removed from library collections. Your library policies and procedures should be designed to allow board members to remove books only for valid reasons, lest a lawsuit be filed against the library challenging the decision on First Amendment grounds.

E. Kenneth Friker, James W. Fessler and Gregory T. Smith are attorneys with Klein, Thorpe and Jenkins, Ltd., a law firm with offices in the Civic Opera Building at 20 North Wacker Drive in Chicago and at 15010 S. Ravinia in Orland Park. The firm concentrates in the representation of local libraries, Library Districts and Library Systems, as well as other units of local governmental.

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Published December 16, 2009 in vol. 3, iss. 24 [View]