Eugene Volokh's Blog, page 262

[Jonathan H. Adler] A Critique of Justice Kagan's Supreme Court Ethics Reform Proposal

[Could a panel of lower court judges evaluate ethics complaints against Supreme Court justices?]

Over the summer, Justice Elena Kagan offered support for an ethics code for Supreme Court justices and suggested possible ways such a code could be enforced, such as through a panel of lower court judges. She reiterated this position earlier this month.

Would such a proposal work? James Burnham has doubts.

This proposal has several fundamental problems. For starters, it would give a future chief justice extraordinary power over his or her colleagues—power that some future, malevolent chief justice could easily abuse. By selecting the lower court judges who stand in judgment of the justices, the chief justice could put a thumb on the scale of those determinations. Gaining an upper hand on an intractable colleague would be as easy as stacking the ethics panel with that colleague's antagonists. We can certainly hope no judge would abuse such authority. But to borrow from the old adage—if judges were angels, no ethics panel would be necessary.

And consider this dynamic in the context of a problem facing the Court right now: leaks of confidential information. Last weekend, the New York Times printed an exposé on the most recent Supreme Court term, replete with details of internal memos, the justices' deliberations, and more. We have no idea who leaked this sensitive information to the Times—and particularly whether any justice was involved—but the leaks appear designed to undermine Chief Justice John Roberts and cast an unflattering light on the Court's majority in certain important decisions. The judiciary's ethical canons flatly prohibit politically motivated leaks of confidential judicial deliberations. Canon 4(D)(5) states: "A judge should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge's official duties." Presumably, a campaign to influence the chief justice and his colleagues by leaking "nonpublic information" to the New York Times would meet that description.

It's a fair question, then, how the proposed ethics panel would address this prima facie ethical violation at the Court. Someone at the Supreme Court provided confidential information to reporters. Would the chief justice's hand-selected panel of lower court judges conduct a leak investigation at the Court? Would the ethics panel have compulsory process over Court staff? What about the justices themselves? Could the ethics panel demand internal documents from the Court? Could the ethics panel sanction a law clerk, staff member, or justice who refuses to participate in its inquiry? These questions would arise immediately if such an institution existed.

It's also unclear how the proposed ethics panel would enforce its determinations. Allowing lower court judges to force the recusal of specific justices is a recipe for disaster: it would create the real prospect of an obscure judicial panel changing the outcome of an important Supreme Court case. Or perhaps the panel could go further and suspend offending justices? That would be even more calamitous, enabling the chief justice's lower court appointees to change the composition of the Court without regard to life tenure, presidential appointment, or Senate confirmation.

Russell Wheeler of the Brookings Institute offers a more sympathetic assessment of Kagan's proposal, but also acknowledges there are serious questions about how such a program would be implemented.

Is any such set of reforms necessary? Congress retains the authority to discipline justices that fail to engage in "good behavior" through impeachment—and Congress could well enact or endorse a set of standards, the violation of which, would justify initiating an impeachment inquiry.  The problem, of course, is that impeachment requires a broader political consensus about alleged misconduct that currently exists.

The post A Critique of Justice Kagan's Supreme Court Ethics Reform Proposal appeared first on Reason.com.

[Eugene Volokh] Security Clearance Denied for Watching Furry Porn Depicting Animated 16-Year-Olds

From Bierly v. Dep't of Defense, decided Wednesday by Judge Royce Lamberth (D.D.C.):

In 2020, Bierly was offered employment with the Air Force Joint Warfare Analysis Center in Dahlgren, Virginia as a Student Trainee. As a condition of his employment, Bierly was required to maintain a Top Secret with Special Compartmented Information (TS/SCI) security clearance, for which he was polygraphed by NSA investigators in February 2020. Starting in June 2020, Bierly began working for the Air Force in a probationary capacity….

In November 2022, the DCSA notified Bierly of its intent to revoke his security clearance pursuant to Security Executive Agent Directive (SEAD) 4, Guideline D, which provides for revocation on the basis of the subject's sexual behavior. DCSA's notification included a Statement of Reasons (SOR) document, explaining the agency's rationale for its preliminary revocation determination. The SOR indicated that, during his polygraph, Bierly admitted to viewing pornographic videos featuring "furries," which may refer either to real people wearing animal costumes or to animated images of anthropomorphic animals.

Bierly confessed that some of the furries in the videos he watched were depicted as minors as young as age 16. The SOR advised that Bierly's history of "engaging in criminal sexual behavior by viewing and masturbating to pornographic images of minors" and intent to continue doing so constituted a "security concern." For his part, Bierly objects to characterizing the videos as child pornography because they featured animated characters rather than actual 16-year-old people….

Bierly's constitutional claims are as follows: Count I claims that viewing animated furry pornography is protected speech under the First Amendment, and that DCSA's suspension of his security clearance therefore infringes this right.

Count II argues that DCSA's suspension of his security clearance abridges Bierly's First Amendment freedom to associate with others who share his political, religious and cultural beliefs. Count III contends that SEAD 4, which allows the DCSA to withhold clearance based on sexual behavior that "demonstrates a lack of judgment or discretion … or may subject the individual to undue influence of coercion, exploitation, or duress," is unconstitutionally overbroad under the First Amendment. Count IV challenges the same language in SEAD 4 as unconstitutionally vague. Count V is a substantive due process claim, arguing that the viewing of legal pornographic material is a protected liberty interest that the DCSA has wrongfully abridged. Count VI is a Fifth Amendment Equal Protection argument, alleging that the defendants have unequally and arbitrarily applied SEAD 4 against Bierly, and that this uneven application fails strict scrutiny….

The court avoided the substantive constitutional questions, in part because federal precedent provides that "the grant of security clearance to a particular employee … is committed by law to the appropriate agency of the Executive branch" and therefore "employment actions based on denial of security clearance are not subject to judicial review ….," especially when it comes to requests for injunctions seeking the grant of a clearance (to oversimplify in some measure).

The court also rejected Bierly's separate statutory claims under the Administrative Procedure Act, Freedom of Information Act, and Privacy Act. Note that Bierly's Complaint states that, "Mr. Bierly admitted to watching 16 year old Furry pornography when he was 15 years old, and the polygrapher used that age for all subsequent Furry pornography that Mr. Bierly admitted to watching," though that wouldn't affect, I think, the court's analysis.

The government is represented by Assistant U.S. Attorney Jeremy S. Simon.

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[Eugene Volokh] "Put a Walmart Bag on Her Head … to Keep the Sex Witches Away": Court Upholds Limit on Aunt's Access to Divorced Couple's Children

From Styles v. Styles, decided Wednesday by the Arkansas Court of Appeals, in an opinion by Judge Kenneth Hixson, joined by Judges Stephanie Potter Barrett and Wendy Scholtens Wood:

In the final order, the trial court ordered that Angela's twin sister, Andrea, not be left alone with the children or communicate with them in any way except as authorized in the order. The trial court found that Andrea "poses a clear threat to the emotional well-being of the children based on earlier findings resulting from her testimony in open court." The trial court ordered that, if Andrea wished to see the children, the visitation would be supervised by a person of Jamey's choosing….

The testimony at trial showed that Andrea had exhibited concerning behavior, including praying in the presence of the children for a spirit of confusion to come upon one of Jamey's sisters and her family. Andrea also thought Jamey's sister was a witch and controlled Andrea's mind, and Andrea shared this with the children.

There was also testimony that, while working at Angela's [dermatology] clinic, Andrea put a Walmart bag on her head and stated that she had to wear it to keep the sex witches away. As a result of Andrea's behavior at the clinic, she was banned from the clinic by the Arkansas State Medical Board. Finally, the children's attorney ad litem, who was very familiar with the case, recommended that the children have no contact with Andrea unless it was supervised by someone other than a relative.

While we agree with the principle that a parent's visitation rights cannot be denied for their religious beliefs, we observe that Andrea is not these children's parent, and we further conclude that the trial court's decision to limit the children's contact was motivated not by religious considerations but rather by the well-being of the children. We hold that, on this record, the trial court did not clearly err in finding that it was in the children's best interest to have only restricted contact with Andrea.

Bart W. Calhoun (McDaniel Wolff PLLC) represents the father.

The post "Put a Walmart Bag on Her Head … to Keep the Sex Witches Away": Court Upholds Limit on Aunt's Access to Divorced Couple's Children appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: September 20, 1968

9/20/1968: The New York City Landmarks Preservation Commission denied a certificate of no exterior effect to the Penn Central Transportation Co. The Supreme Court found that the City of New York did not violate the Takings Clause in Penn Central Transportation Co. v. New York (1978).

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[Josh Blackman] Man Indicted For Threatening To Lynch "Corrupt" Justice Thomas And His "Insurrectionist" Wife

[There are consequences to the rhetoric about the Court from high ranking officials.]

Yesterday the Department of Justice indicted Panos Anastasiou for making threats against "Supreme Court Justices 1-6." Threats were also made against "Family Members 1 and 2" of "Supreme Court Justices 1 and 2." The indictment doesn't name who the six Justices and their family members are, but it isn't hard to figure things out. The motion to seek a detention hearing lists the specific messages that the defendant submitted through the Supreme Court's website. I will reproduce theme here, as relayed by DOJ.

January 4, 2024: "I'd like to see [Former President 1 and Supreme Court Justice 1] hanging together from an Oak tree. I'd gladly provide the rope and pull the handle."

May 10, 2024: "Subject: N***** [Supreme Court Justice 1]", "I'd like to see you have a real lynching and I'll donate the tree and pull the lever… you worthless piece of n***** shit."1

May 16, 2024: "I would have had NO reservations about walking up to [Supreme Court Justice 2] and not asking him to take it down but to put a BULLET in this mother fuckers head."

May 17, 2024: "I'm going to call and urge my fellow Vietnam veterans… to drive by the [Supreme Court Justice 2]'s house with their AR15's and when fucking [Supreme Court Justice 2] and his fucking PIECE OF SHIT CUNT WIFE are HOME spray the home of these disrespectful mother fuckers with hundreds of rounds… hopefully killing these SCUMBAG COCKSUCKERS. Hopefully N***** [Supreme Court Justice 1] and his white trailer trash n***** loving insurrectionist wife are visiting."

June 18, 2024: "I don't want to see these two corrupt mother fuckers assassinated… I'd like to see them TORTURED worse than Kim Jung Un would torture his own family. You know, like putting electrodes up their ass and on their balls, needles under their finger nails, pulling their teeth with pliers, etc etc. Make these SCUMBAGS beg for their lives."

July 1, 2024: "ASSASSINATING THESE COCKSUCKERS IS THE ONLY PANACEA… that includes the CONVICTED CRIMINAL, [Former President 1]. Again as an AMERICAN and to defend the constitution and democracy I want the assassinations by any ENTITY of the government or even a PATRIOTIC AMERICAN to commence. And PLEASE start with the assassination of the N***** and HERMAPHRODITE. As a Vietnam veteran and if I had the means and way I'd assassinate them myself. These fuckers are NOT ABOVE THE LAW."

July 3, 2024: "WE NEED MASS ASSASSINATIONS. If you're corrupt you're corrupt… don't give us this official and unofficial bullshit. You mother fuckers are UNELECTED and Americans have no trust in you. The internet is abuzz with Americans clamoring for your ASSASSINATIONS. We need to assassinate you fuckers and put your heads on a pike and use them as soccer balls. I want to be the first to kick [Supreme Court Justice 6] head down Pennsylvania Ave. You don't want to ask me what I'd like to do to the N***** and [Supreme Court Justice 2]."

July 5, 2024: "We should make [Supreme Court Justices 1-6] be AFRAID very AFRAID to leave their home and fear for their lives everyday."

Justice 1 is Justice Thomas. Family member 1 is Ginni Thomas.

Justice 2 is Justice Alito. Family member 2 is Martha Ann Alito.

And I am just going to guess that Justices 3 through 6 include Chief Justice Roberts, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett. I'm not sure for certain who Justice 6 is, and why the defendant wants to kick his or her head down Pennsylvania Avenue.

I am grateful that the defendant was apprehended, but these threatening messages began nearly eight months ago. Far be it from me to question law enforcement, but it seems in recent times that the government has failed to act upon threats until guns were in the vicinity of public officials. Do would-be assassins get one free shot at a Justice's ear? Are they allowed to hide for twelve hours in a bush outside the Justice's home? We know the Kavanaugh assassin was able to take a stroll past the Justice's house. I'm glad DOJ finally got around to indicting him! In the meantime, Justice Barrett needs to explain to her children why she has a bullet-proof vest.

Let me make a broader point. There is a common theme in the defendant's rants: the Justices are corrupt, they are in cahoots with President Trump, and Ginni Thomas is an insurrectionist. Where could the defendant possibly have heard such messages? Surely, one could find these comments in the dregs of social media. But these slanders are also issued repeatedly by leading Democratic lawmakers. Indeed, the entire basis of President Biden's "Court Reform" plan is that the Justices are "corrupt" and cannot be trusted. There are consequences to the rhetoric about the Court from high ranking officials.

I wish more people in positions of power would defend the Court. I praise in the highest terms a recent speech that Kannon Shanmugam delivered at Duke, as reported by the Wall Street Journal. Kannon points out how public officials use language that is similar to Panos Anastasiou's, minus the racial slurs. Kannon offers some examples:

… the attacks have been accompanied by unusually toxic rhetoric. Consider statements like these:

• "The extreme far-right, MAGA majority on the United States Supreme Court is totally out of control."

• "This activist, extremist MAGA court faces a legitimacy crisis."

• "The problem is not that the Supreme Court is just conservative. The problem is that it is corrupt."

• "We must restore justice and balance to the rogue, radical Supreme Court."

• "The Supreme Court is a cesspool of corruption devastating our communities."

These statements do not come from random people; all of them come from members of Congress. And it does not take much imagination to realize what the rhetoric elsewhere looks like.

And Kannon expressly ties this sort of rhetoric with the assassination attempt against Justice Kavanaugh:

As observers across the political spectrum noted in the immediate aftermath of the attempted assassination of former President Trump, the rhetoric in American public life, on both sides, has more generally become overheated; indeed, we practicing lawyers (myself included) sometimes cross the line, too. But I believe that the attacks on the Court's legitimacy, and the accompanying rhetoric, are having two deeply concerning effects. First, as the two distinguished recent leaders of this school's Bolch Judicial Institute, David Levi and Paul Grimm, have recently warned, attacks on the legitimacy of the courts are contributing to the threat of violence against judges in general. And the same can be said with regard to the Supreme Court in particular. Most obviously, a man has been charged with the attempted assassination of Justice Kavanaugh after allegedly turning up at his home with a gun and other weapons. (The man has pleaded not guilty and is awaiting trial.) Others have recently been charged with or detained for making threats against the Chief Justice and Justice Barrett. It is impossible to draw a direct link between the attacks on the Court's legitimacy and any of these recent alleged crimes. But when even members of Congress are threatening that Justices will "pay the price" and "won't know what hit them" if they issue decisions reaching certain outcomes, it is not unreasonable to conclude that the rhetoric around the Court's legitimacy risks adding to the problem.

Kannon is exactly right. As we are told over and over again, words have consequences.

And I only wish more members of the Supreme Court bar would be so vocal in speaking out on this issue. They make a lot of money off of the Court. Certainly their firms, and clients, would appreciate even a modest defense of the Justices.

The same charge goes to the Department of Justice. I'm looking right at you Attorney General Garland. You are quite fond of criticizing former-President Trump, whom your special counsel is trying to convict, but criticism should also be targeted at your boss. Ditto for Solicitor General Prelogar, who should spend a little less time sitting with Vanity Fair, and spend more time explaining why her boss's proposal would be so destructive for the Court. One wonders if any other Attorney General would ever approve of such a puff piece about the Solicitor General.

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[Eugene Volokh] California Litigants Must Ask for Pseudonymity, Rather Than Just Filing Under a Pseudonym

From L.A. Superior Court Judge Frank Tavelman's order last Friday in Roe v. Smith:

Plaintiffs have not adhered to the proper procedure for proceeding anonymously. Before a party can proceed anonymously, they must move the Court for permission to do so. This procedure is addressed in Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105 (hereinafter DFEH). There the Court observed the following:

Procedurally, because a hearing is required, a party who wants to proceed anonymously will file the initial complaint or petition conditionally under a pseudonym and then move for an order granting permission to proceed that way. If the request is granted, the initial pleading can remain. If pseudonym use is denied, the pleading must be amended to state the party's true name.

Here, no motion was made to proceed anonymously, and no hearing was ever conducted on Plaintiff's right to do so. This procedural posture is important because it places the burden on the party seeking to proceed anonymously to demonstrate an overriding interest. Plaintiff's failure to move for permission to proceed anonymously has essentially improperly shifted this burden to First Amendment and Defendants. Plaintiffs have never demonstrated to the Court that they can overcome the presumption of openness provided by CRC Rule 2.550(c)….

Seems quite correct to me; the binding California Court of Appeal precedent in DFEH already made it clear, but trial court decisions such as this are important reminders of it as well.

Note that I'm involved in this case as lawyer for the First Amendment Coalition, which moved to depseudonymize the plaintiffs (who are suing for libel); for more on the arguments against libel plaintiffs suing pseudonymously, see this post. The court denied our motion without prejudice to our making the same arguments later, because it concluded that plaintiff needs to move for pseudonymity first, and we can then argue against that motion. Thanks to Benjamin Diamond Wofford, who just graduated from Stanford Law School and who worked on this case.

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[Eugene Volokh] No Pseudonymity for Plaintiff Challenging Suspension Under Title IX

[So holds the Eleventh Circuit, upholding the district court's decision—but the court's standard of review suggests that the exact oppose district court decision might have been upheld, too.]

Yesterday's Eleventh Circuit decision in Doe v. Florida Gulf Coast Univ. Bd. of Trustees (by Eleventh Circuit Judges Robert Luck, Andrew Brasher, and Nancy Abudu) involved a plaintiff who was suing under Title IX, challenging the University's decision to suspend him for allegedly having sex with his ex-girlfriend "when she was too intoxicated to consent." Plaintiff sought to proceed under a pseudonym—quite routine in such cases. But the district court said no, and the Eleventh Circuit held that the district court's decision wasn't an abuse of discretion:

We have laid out several considerations relevant to determining whether a district court should allow a litigant to proceed anonymously[:] … "whether the party seeking anonymity (1) is challenging government activity; (2) would be compelled, absent anonymity, to disclose information of utmost intimacy; or (3) would be compelled, absent anonymity, to admit an intent to engage in illegal conduct and thus risk criminal prosecution." "The 'information of utmost intimacy' standard" generally relates to topics like "abortion" as well as "prayer and personal religious beliefs." "On the other hand, courts have often denied the protection of anonymity in cases where plaintiffs allege sexual assault, even when revealing the plaintiff's identity may cause her to 'suffer some personal embarrassment.'" … We have [also] considered, for example, [4] whether "the party seeking anonymity is a minor," [5] whether the person "faces a real threat of physical harm absent anonymity," and [6] whether the movant would face "social stigma" if forced to proceed under the movant's true name.

The appellate court held that the district court didn't abuse its discretion as to the utmost intimacy and stigma factors:

As to Doe and Roe's sexual history, and any accompanying information related to Roe's potential infection, we have recognized that "courts have often denied the protection of anonymity in cases where plaintiffs allege sexual assault, even when revealing the plaintiff's identity may cause her to 'suffer some personal embarrassment.'" And here, Doe contends that his complaint and supporting materials reveal—at most, in his view—consensual encounters, so the district court did not make a clear error in judgment when finding this information did not warrant granting the motion.

We also can't say that the district court abused its discretion in determining that the information about Roe did not compel granting anonymity. [This seems to refer to her "potential [sexually transmitted] infection, mental health and medication … [and] alcohol and drug use." -EV] The information related to her is similar to the information Doe relies on as to himself, which we've already determined did not require granting the motion. And we've never held that medical information alone establishes grounds for anonymity…. "[T]he fact that a case involves a medical issue is not a sufficient reason for allowing the use of a fictitious name, even though many people are understandably secretive about their medical problems." …

Next, to the extent Doe argues that information about his alcohol and drug use is of the utmost intimacy, that position finds no support in our precedent, and this information isn't anything like what we have previously held falls into this category.

Doe also hasn't demonstrated the district court abused its discretion when it found that any alleged social stigma Doe will face didn't outweigh the presumption that his proceeding should be a public one. Put simply, he does not cite any evidence of these harms, and instead only asserts in briefing that they are "near[ly] certain[ ]" to occur.

And the court likewise held the district court didn't abuse its discretion as to factors 1, 3, and 4:

[T]he district court did not abuse its discretion in concluding that, even though Doe's lawsuit was against a public entity (the University), this did not necessarily weigh in favor of anonymity….

We also see no error in how the district court addressed Doe's concerns over an alleged fear of prosecution …. The district court found that any statute of limitations related to Doe's drug and alcohol use had already run by the time of its order, and Doe doesn't challenge that determination…. And as it relates to his sexual harassment determination, Doe's lawsuit will not force him to admit an intent to engage in illegal conduct. To the contrary, Doe alleges that the University reached the wrong result because it violated his constitutional rights and refused to follow its established procedures for handling sexual harassment allegations.

Doe tries to rely on his "age and status" as a college student to support his argument that his motion should have been granted. Our precedent has considered "whether the plaintiffs were minors." But Doe is not a minor, and he wasn't a minor at any time relevant to this lawsuit. So this, like Doe's other arguments, does not demonstrate the district court abused its discretion. We are satisfied that the district court adequately considered the totality of the circumstances and made a determination well within the zone of choices available to it.

Doe ends by cautioning that affirming the district court would "likely result in no Title IX litigant being able to proceed anonymously," citing a case from the First Circuit he believes supports reversal here. But we agree with the First Circuit "that the confidentiality of a Title IX disciplinary proceeding may sometimes—but not always—furnish grounds for finding an exceptional case warranting pseudonymity." As shown here, the district courts in our circuit are more than capable of balancing plaintiffs' privacy interests against the constitutional right to access judicial proceedings and exercising their broad discretion to grant anonymity in appropriate cases.

So here's the problem, as I see it: Because the Eleventh Circuit reviewed the district court's decision for "abuse of discretion," and held only that "Doe … hasn't demonstrated the district court abused its discretion," this gives virtually no guidance on how district courts actually should exercise their discretion. A court could have reached the opposite result on the same facts, and it too likely wouldn't have been seen as abusing its discretion. (This might be why the Eleventh Circuit released this case as a nonbinding memorandum, rather than a binding precedent—it actually decides very little that could be binding on future district courts.)

Indeed, the great majority of courts considering such Title IX wrongful discipline cases have allowed pseudonymity (see pp. 1441-48 of The Law of Pseudonymous Litigation), often on facts very close to these. Among district courts in the Eleventh Circuit, the split in the cases I found in my 2022 research was 3 to 3. So it just looks like the plaintiff had the bad luck to come before a public-access-friendly judge rather than a privacy-friendly judge. I'm not sure what the right rule is in cases such as this; but luck of the draw seems like a poor solution.

Sacha Dyson and Kevin M. Sullivan (Bush Graziano Rice & Hearing) represent the university.

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[Eugene Volokh] "Discard [Library] Books … That Reflect Gender, Family, Ethnic, or Racial Bias"

[Professional librarian sources seem split on viewpoint-based book removals: some firmly call for viewpoint neutrality, while others say that books should be evaluated for "biased viewpoints."]

[1.] Next week, the entire en banc Fifth Circuit will be hearing Little v. Llano County, a case involving allegations of viewpoint-based book removals in a public library. As I've noted before, the Supreme Court has never resolved whether such removals are unconstitutional. Pico v. Bd. of Ed. (1982), which considered the matter as to public school libraries, split 4-4 on the subject, with the ninth Justice, Justice White, expressly declining to resolve the substantive question. (The Pico Justices generally agreed that schools could remove some material as age-inappropriate because of its vulgar or sexual content; the debate was about viewpoint-based removals.)

U.S. v. American Library Ass'n (2003), which dealt with the related question of Internet filtering in public libraries generally, was also a splintered decision, and didn't resolve the broader question, either. A 1995 Fifth Circuit panel decision had generally precluded such viewpoint-based removals, but the Fifth Circuit en banc court will need to consider whether that decision should stand: Rehearing by the full en banc court is the normal way that federal appellate courts reconsider whether three-judge panel decisions should be overruled.

I'm not sure what the answer here should be. I tentatively think a public school is entitled to decide which viewpoints to promote through its own library: School authorities can decide that their library will be a place where they provide books they recommend as particularly interesting/useful/enlightening/etc., essentially as supplements to the school curriculum (over which the school has broad authority). The process of selecting library books is part of the government's own judgment about what views it wishes to promote. And the ability to reconsider selection decisions—including in response to pressure from the public, which is to say from the ultimate governors of the public schools—should go with the ability to make those decisions in the first place. To be sure, some such decisions may be foolish or narrow-minded, but they're not unconstitutional.

But this doesn't necessarily resolve the question of how librarians should administer non-school public libraries, which aren't the adjunct to any sort of school curriculum. Libraries are much more about giving more options to readers, rather than about teaching particular skills and attitudes to students. The case for viewpoint neutrality is therefore stronger there—though not, I think, open and shut. (Note also that even the challengers in this case leave open the possibility that courts shouldn't scrutinize book acquisition decisions to decide whether they are viewpoint-based, but only book removal decisions. See Appellees' En Banc Brief at 43-44 & n.13, 50.)

In any case, that's the big picture; here, I want to talk about a particular twist in the dispute, which can be particularly well seen in a friend-of-the-court brief filed by the Freedom to Read Foundation, the Texas Library Association, and American Library Association. The passage, and the sources it cites, refer to the necessity to remove books on some criteria—this is called "weeding," and some sources suggest that each year a public library would generally weed out 5% of its stock—and discuss which criteria are proper:

There are various methods for weeding library collections. One is the "CREW" method, which stands for "Continuous Review, Evaluation, and Weeding." CREW contains six general guidelines under the acronym "MUSTIE":

Misleading: factually inaccurate

Ugly: beyond mending or rebinding

Superseded by a new edition or by a much better book on the subject

Trivial: of no discernible literary or scientific merit

Irrelevant to the needs and interests of the library's community

Elsewhere: the material is easily obtainable from another library.[26]

When weeding, the goal is "to maintain a collection that is free from outdated, obsolete, shabby, or no longer useful items."[27]

Weeding is not the removal of books that, in the view of government officials, contain "inappropriate" ideas or viewpoints. Professional librarian practice is crystal-clear: "While weeding is essential to the collection development process, it should not be used as a deselection tool for controversial materials."[28]

[26] Lester Asheim, Not Censorship But Selection, Am. Libr. Ass'n, www.ala.org/advocacy/intfreedom/NotCe... (last visited Sept. 10, 2024); see also Rebecca Vnuk, The Weeding Handbook: A Shelf-By-Shelf Guide 6 (2d ed. 2022) (describing MUSTIE method).

[27] Jeanette Larson, CREW: A Weeding Manual for Modern Libraries at 11, Tex. State Libr. & Archives Comm'n (2012), at 11, https://www.tsl/texas.gov/sites/defau... (last visited Sept. 10, 2024).

[28] Collection Maintenance, supra note 23 (emphasis added) [Collection Maintenance & Weeding, Am. Libr. Ass'n, https://www.ala.org/tools/challengesu... (last visited Sept. 10, 2024).

But here's the twist: As the government defendants earlier briefing makes clear, both The Weeding Handbook (note 26) and A Weeding Manual (note 27) expressly contemplate "removal of books that, in the view of government officials, contain 'inappropriate' ideas or viewpoints." Here are some passages from A Weeding Manual (emphasis added):

For all items, consider the following problem categories and related issues:

Poor Content: … Material that contains biased, racist, or sexist terminology or views …

Juvenile Fiction … Consider discarding older fiction especially when it has not circulated in the past two or three years. Also look for books that contain stereotyping, including stereotypical images and views of people with disabilities and the elderly, or gender and racial biases.

323 (Immigration & Citizenship) … Weed biased or unbalanced and inflammatory items.

330 (Economics) … Weed career guides with gender, racial, or ethnic bias.

390 (Customs, Etiquette & Folklore) … Discard books that lack clear color pictures. Holiday-specific books may only circulate once or twice a year. Discard books that are MUSTIE or that reflect gender, family, ethnic, or racial bias.

398 (Folklore) … Weed based on the quality of the retelling, especially if racial or ethnic bias is present.

709 (Art History) … While information may not become dated, watch for cultural, racial, and gender biases.

740 (Drawing & Decorative Arts) … Discard books on crafts that are no longer popular (macramé) or that feature gender bias.

793-796 (Games and Sports) … Watch for gender and racial bias in sports and athletics.

800 (Literature) … Watch for collections that feature gender or nationality bias and outdated interests and sensitivities.

E (Easy Readers/Picture Books) … Weed books that reflect racial and gender bias.

JF (Juvenile Fiction) … Evaluate closely for outdated styles, artwork, and mores, or biased viewpoints.

Some of these criteria, to be sure, may be defended on various grounds, including that books that contain what to appear outdated viewpoints are just not going to be as useful or interesting to new generations of readers. But that still involves viewpoint-based decisionmaking (as opposed to using viewpoint-neutral criteria such as whether the book has in fact been checked out in the last few years).

The Weeding Handbook, published by the American Library Association itself, likewise calls for some viewpoint-based removal decisions:

It is … imperative to view materials through the lens of diversity and inclusion. Outdated or misrepresentational material needs to be removed on a regular basis. The Washington Office of Superintendent of Public Instruction has a very thorough tool for screening for biased content available online, … Washington Model Resource: Screening for Biased Content in Instructional Materials. [That tool is focused on classroom materials, but the Weeding Handbook is suggesting that it be adapted to library materials as well. -EV]

Carefully evaluate books on Black history, women's issues, and gender for language and bias…. Are materials free of stereotypes and assumptions?

[Quoting one librarian favorably:] "Removing the Dr. Seuss books that are purposefully no longer published due to their racist content is absolutely acceptable because it's an act of basic collection maintenance. It is our professional duty to make those carefully chosen decisions to ensure our collections are up-to-date and suitable for the communities we serve…. Librarians who claim to be antiracist need to remove these books…."

Libraries would do well to remember the first 'M' in MUSTIE: Misleading. CREW goes even further to define that "material that contains biased, racist, or sexist terminology or views" should be weeded.

[Quoting another librarian favorably:] "… This … highlights a new and much needed discussion in weeding principles: the weeding out of harmful materials with racist cultural stereotypes." "My philosophy is indeed to let it go when it comes to racially offensive material."

And this seems to represent broader attitudes among many librarians. A 2021 School Library Journal report notes, without criticism, that 47.3% of public library respondents (and 65.1% of school library respondents) included in "criteria for weeding" "inappropriate content (e.g., racist, biased, etc.). The California Department of Education Weeding the School Library publication (to be sure, it's focused on school libraries) expressly noted that "Books containing racial, cultural or sexual stereotyping" should be weeded as "misleading."

To be sure, there are other documents from the ALA that seem to take a much more pro-viewpoint-neutrality view, e.g., this statement (originally adopted in 1973) from "Evaluating Library Collections: An Interpretation of the Library Bill of Rights":

The collection-development process is not to be used as a means to remove materials … because the materials may be viewed as controversial or objectionable. Doing so violates the principles of intellectual freedom and is in opposition to the Library Bill of Rights.

Some resources may contain views, opinions, and concepts that were popular or widely held at one time but are now considered outdated, offensive, or harmful. Content creators may also come to be considered offensive or controversial. These resources should be subject to evaluation in accordance with collection-development and collection-maintenance policies. The evaluation criteria and process may vary depending on the type of library. While weeding is essential to the collection-development process, the controversial nature of an item or its creator should not be the sole reason to remove any item from a library's collection. Rather than removing these resources, libraries should consider ways to educate users and create context for how those views, opinions, and concepts have changed over time.

Failure to select resources merely because they may be potentially controversial is censorship, as is withdrawing resources for the same reason.

The American Library Association opposes censorship from any source, including library workers, faculty, administration, trustees, and elected officials. Libraries have a profound responsibility to encourage and support intellectual freedom by making it possible for the user to choose freely from a variety of offerings.

And when I talked to librarians about this earlier this year, many of them also endorsed the viewpoint-neutrality approach. I also asked Deborah Caldwell-Stone, Director of the ALA Office for Intellectual Freedom / Freedom to Read Foundation, and she reaffirmed the viewpoint-neutrality position of the FFRF and ALA amicus brief, as well as of the Evaluating Library Collections statement quoting above. She added, "Citing to examples of weeding resources that are published by others or books that represent the view of a particular author should not be seen as an endorsement of every statement contained in those resources."

But I think it's hard to say, as the ALA Brief does, that there's a "crystal-clear" "[p]rofessional librarian practice" of viewpoint neutrality. Rather, it appears that there is a pretty major split among librarians and among those who discuss library weeding policy: Some view the weeding of certain views as legitimate and indeed recommend such weeding, while others insist on viewpoint-neutral criteria.

Who is right and who is wrong is a complicated question. But the debate shouldn't be seen, I think, as being between some solid professional norm of viewpoint-neutrality and conservative political departures from such a norm.

The post "Discard [Library] Books … That Reflect Gender, Family, Ethnic, or Racial Bias" appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: September 19, 1907

9/19/1907: Justice Lewis Powell's birthday.

Justice Lewis Powell

The post Today in Supreme Court History: September 19, 1907 appeared first on Reason.com.

[Eugene Volokh] Thursday Open Thread

[What's on your mind?]

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