No Right to Trans Propagandize Kids in Schools: Florida AG Amicus Brief on Pico and School Libraries

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

Case No. 3:23-cv-10385-TKW-ZCB

PEN AMERICAN CENTER, INC., ET AL.,

          Plaintiffs,

                    v.

ESCAMBIA COUNTY SCHOOL BOARD,

          Defendant.

BRIEF OF AMICUS CURIAE THE STATE OF FLORIDA

IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS

INTRODUCTION AND STATEMENT OF INTEREST

     Plaintiffs challenge “the decisions of the Escambia County School Board (‘the School Board’) to remove and restrict” certain materials in “public school libraries within the Escambia County School District.” DE25-1 at 1–2. The restrictions, Plaintiffs say, violate the First Amendment because the government may not restrict access to materials “based on viewpoint” or “deny students access to ideas with which” the “school board disagrees.” DE25-1 ¶¶ 218, 225 (cleaned up). But public-school systems make value-based judgments like that every day. They exclude materials like Nazi propaganda because they disagree that Nazis were wonderful, regardless of any educational value the materials may have. Viewpoint-based educational choices are constitutionally permissible because public-school systems, including their libraries, convey the government’s message, and, when the government speaks, it may “regulate the content of . . . its own message,” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995), “including choosing not to speak and speaking through the removal of speech that the government disapproves,” Gundy v. City of Jacksonville, 50 F.4th 60, 71 (11th Cir. 2022) (cleaned up). Plaintiffs—who include the authors and publishers of certain books restricted by Defendant—are free to take their concerns to the ballot box. See Pleasant Grove City v. Summum, 555 U.S. 460, 468–69 (2009). But they have no constitutional right to inculcate Florida’s schoolchildren with their preferred ideas through Florida’s school libraries. To vindicate that principle, the Attorney General respectfully submits this amicus brief in support of Defendant’s motion to dismiss.

ARGUMENT

I.     PLAINTIFFS FAIL TO STATE A FIRST AMENDMENT CLAIM.

     1.  Plaintiffs contend that “[s]chool libraries are . . . of great importance to book authors and book publishers, especially with regard to books aimed at” their intended audience—“children and young adults.” DE25-1 ¶ 41. In their view, “[t]he libraries within the School District constitute, at a minimum, non-public forums,” and, “[b]ecause they are non-public forums, the School Board cannot” restrict access to materials “based on viewpoint.” Id. ¶ 218. That is wrong because Florida’s public-school libraries are a forum for government, not private, speech. And when the government speaks, it “can freely select the views that it wants to express, including choosing not to speak and speaking through the removal of speech that the government disapproves.” Gundy, 50 F.4th at 71(cleaned up).

     Although the Eleventh Circuit has not yet addressed whether the government’s “book collection (and book removal) decisions” for school libraries are “government speech,” ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1201 (11th Cir. 2009),[ 1 ] the Supreme Court and Eleventh Circuit have repeatedly held that the government’s authority to “regulate the content of . . . its own message,” Rosenberger, 515 U.S. at 833, includes the discretion to select materials and content for compilation and presentation to citizens, be it a government parade,[ 2 ] a broadcasted debate,[ 3 ] a state-university commencement,[ 4 ] or a state-sponsored art gallery.[ 5 ] In Pleasant Grove City v. Summum, for example, the Supreme Court held that the selection of monuments for a public park was government speech, even when the monuments were funded or donated by private parties. 555 U.S. at 470–73. “Government decisionmakers select[ed] the monuments that portray[ed] what they view[ed] as appropriate for the place in question, taking into account such content-based factors as esthetics, history, and local culture.” Id. at 472. Accordingly, the “decision to accept certain privately donated monuments while rejecting respondent’s” was “government speech,” and the government was not required to “maintain viewpoint neutrality” in making that decision. Id. At 479, 481. 

     As the Supreme Court has explained, “forum analysis and heightened judicial scrutiny . . . are also incompatible with the discretion that [government-run] libraries must have to fulfill their traditional missions.” United States v. Am. Libr. Ass’n, Inc., 539 U.S. 194, 205 (2003) (plurality op.). Like the monument park in Summum, a library’s purpose is “to provide its patrons with materials of requisite and appropriate quality, not to create a public forum for [private parties] to express themselves.” Id. at 209 n.4. “To fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons,” and need not “provide universal coverage.” Id. at 201. Like the selection of monuments, “the government speaks through its selection of which books to put on the shelves and which books to exclude,” People for the Ethical Treatment of Animals, Inc. v. Gittens, 414 F.3d 23, 28 (D.C. Cir. 2005), because that selection reflects the government’s view about what materials have the “requisite and appropriate quality,” Am. Libr. Ass’n, Inc., 539 U.S. at 204, 206 (plurality op.) (citations omitted); see also Bryant v. Gates, 532 F.3d 888, 898 (D.C. Cir. 2008) (Kavanaugh, J., concurring) (the government speaks when it “compil[es]” the “speech of third parties” in a public library). And because the compilation of library materials is government speech, the First Amendment does not bar the government from making viewpoint-based choices about what to curate. See Gittens, 414 F.3d at 29; Am. Libr. Ass’n, 539 U.S. at 204–05 (plurality op.).

     That principle applies with even more force in public-school libraries, the purpose of which is to support the government’s educational mission by “providing materials that properly supplement the basic readings assigned through the standard curriculum.” Zykan v. Warsaw Cmty. Sch. Corp., 631 F.2d 1300, 1308 (7th Cir. 1980). By curating a school library, the government conveys its view on which books have the “requisite and appropriate quality” to bolster student development. Am. Libr. Ass’n, 539 U.S. at 204 (plurality op.) (citation omitted). “Absurd results would follow,” Dean v. Warren, 12 F.4th 1248, 1266 (11th Cir. 2021), if private parties were allowed to hijack the government’s message by forcing their preferred books onto school-library shelves, see Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 572–73 (1995) (parade organizers not required to include voices they wished to exclude); Leake, 14 F.4th at 1253 (same for government parade organizer). Forcing the government “to speak” in a school library “what [it] do[es] not believe on pain of” lawsuit, 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2313–14 (2023), would put policy decisions about what to teach in schools in the hands of litigants rather than elected representatives. “Indeed, it is not easy to imagine how government could function if it lacked this freedom.” Summum, 555 U.S. at 468. “If every citizen were to have a right to insist” that his preferred books be included in a school’s library, “debate over issues of great concern to the public would be limited to those in the private sector.” Id. (citing Keller v. State Bar of Cal., 496 U.S. 1, 12–13 (1990)). The government would not only have to curate those litigants’ preferred materials, but also reallocate resources and student attention away from those that advance the government’s selected educational mission. See Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477, 479 (7th Cir. 2007).

     Plaintiffs make much of Defendant’s professed commitment in its policy manual to provide in school libraries “a wide range of materials of different difficulty levels, with diversity of appeal and representing different points of view.” DE25-1 ¶¶ 39–40 (citing DE25-1 Exh. 1 at 8–9). But the policy manual merely identifies that goal as one among many competing objectives for Defendant’s libraries—among them, “provid[ing] a broad background of information in all areas of knowledge,” “support[ing] the general educational goals of the District and the objectives of specific courses,” and “[s]upport[ing] the professional needs of teachers and administrators.” DE25-1 Exh. 1 at 7–8. If anything, the policy manual confirms that Defendant’s libraries are not a forum for free expression, warning that “[n]o parent, guardian or resident of the county has the right to determine the reading, viewing or listening resources for students other than their own children” and reserving to school officials—not authors, publishers, or students—the authority to “mak[e] the final selection for library-media.” Id. at 9, 12. Far from the blanket “accommodat[ion]” of “all applicants” that reflects a “lack of meaningful involvement in the selection” process and thus creates a forum for free expression, Defendant’s policies show that school officials “always select[]” their library materials and “maintain direct control” of them. Shurtleff v. City of Boston, 142 S. Ct. 1583, 1592–93 (2022) (citing Summum, 555 U.S. at 472–473, and Walker v. Tex. Div., Sons of Confederate Veterans, 576 U.S. 200, 213 (2015)). State law indeed requires as much. See Fla. Stat. § 1006.28(2)(d)(1) (“Each book made available to students through a school district library . . . must be selected by a school district employee . . ., regardless of whether the book is purchased, donated, or otherwise made available to students.”); see also id. § 1006.28(2)(d)(2) (requiring that “[e]ach district school board . . . adopt procedures for developing library . . . collections” to “support . . . state academic standards and aligned curriculum, and the academic needs of students and faculty.”).

     2.  The Student Plaintiffs are just as wrong that the First Amendment bars the government from restricting library books “for the purpose of ‘deny[ing] students access to ideas with which’ the school district disagrees.” DE25-1 ¶ 225 (citing Pico, 457 U.S. at 870–71 (plurality op.). The government has no constitutional obligation to present educational material with which it disagrees. Because a “listener’s right to receive information is reciprocal to the speaker’s right to speak,” Doe ex rel. Doe v. Governor of N.J., 783 F.3d 150, 155 (3d Cir. 2015), that right cannot be deployed to interfere with the government’s own message. Students certainly have no more right to control what the government puts in its libraries than they do to control the content of a school cheer, see Dean, 12 F.4th at 1265–66 (cheerleading is government speech), or the message they communicate while participating in a training practicum, see Keeton v. Anderson-Wiley, 664 F.3d 865, 877 (11th Cir. 2011)(same for school practica).

     In arguing the contrary, Plaintiffs attach considerable significance to Board of  Education v. Pico, in which a plurality of the Supreme Court concluded that school library materials may not be selected “in a narrowly partisan or political manner.” 457 U.S. at 870. But the Eleventh Circuit has recognized that Pico was “a badly fractured decision” that is “of no precedential value as to the application of the First Amendment to these issues” and “establishes no standard.” Miami-Dade Cnty. Sch. Bd., 557 F.3d at 1199–1200 (quotations omitted). In addition, Pico predates the Supreme Court’s government-speech cases, which—as Justice Rehnquist foreshadowed—would have required a different result in that case. See 457 U.S. at 920 (Rehnquist, J., dissenting) (“[T]he Court will far better serve the cause of First Amendment jurisprudence by candidly recognizing that the role of government as sovereign is subject to [stricter] limitations than [its] role” as “educator.”).

II.     PLAINTIFFS FAIL TO STATE AN EQUAL PROTECTION CLAIM.

     Plaintiffs also claim that “[m]any of these books have been targeted simply because they address themes relating to race, sexuality, or gender identity” and, from that they infer the “intent . . . to exclude speech by authors based on their race, sexuality, or gender identity.” DE25-1 ¶ 236. In other words, Plaintiffs allege that Defendant’s governmental message constitutes invidious discrimination in violation of the Equal Protection Clause. That claim fails for the same reason as Plaintiffs’ First Amendment claims: “[A] government entity is entitled to say what it wishes and to select the views it wants to express,” with a notable exception for the establishment of religion. Am. Atheists, Inc. v. Port Auth. of N.Y. & N.J., 760 F.3d 227, 246 (2d Cir. 2014) (cleaned up) (rejecting equal protection claim alleging animus in the adoption of the September 11 Memorial at Ground Zero). Accordingly, “the Equal Protection Clause does not apply to government speech.” Fields v. Speaker of Penn. House of Representatives, 936 F.3d 142, 161 (3d Cir. 2019); see Freedom from Religion Found., Inc. v. City of Warren, 707 F.3d 686, 698 (6th Cir. 2013); Bloomberg v. Blocker, 586 F. Supp. 3d 1251, 1258 (M.D. Fla. 2022). That makes sense because, when—as here—the government speaks for itself rather than creating a forum for private speech, it necessarily treats all citizens equally.

CONCLUSION

     For the foregoing reasons, as well as those stated in Defendant’s motion to dismiss, the Court should dismiss all claims against Defendant.

[NOTES]

[ 1 ]  In Miami-Dade County School Board, the court had no occasion to decide that question because the plaintiffs lost even under the “standard . . . of their dreams”—“the standard that failed to attract a majority in the Pico case.” 557 F.3d at 1202 (citing Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 872 (1982) (plurality op.)).

[ 2 ]  See Leake v. Drinkard, 14 F.4th 1242, 1253 (11th Cir. 2021).

[ 3 ]  Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998).

[ 4 ]  Id.

[ 5 ]  Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 586 (1998).

                                                  Respectfully submitted,

                                                  ASHLEY MOODY

                                                    Attorney General

                                                  HENRY C. WHITAKER (FBN 1031175)

                                                    Solicitor General

                                                  /s/ Daniel W. Bell    

                                                  DANIEL W. BELL (FBN 1008587)

                                                    Chief Deputy Solicitor General

                                                  DAVID M. COSTELLO (FBN 1004952)

                                                    Deputy Solicitor General

                                                  Counsel for Amicus Curiae the State of Florida

Office of the Attorney General

The Capitol, PL-01

Tallahassee, Florida 32399-1050

(850) 414-3300

(850) 410-2672 (fax)

daniel.bell@myfloridalegal.com

CERTIFICATE OF SERVICE

     On this 22nd day of August, 2023, a true and correct copy of the foregoing was filed with the Court’s CM/ECF system, which will provide service to all parties.

                                                  /s/ Daniel W. Bell      

                                                  Chief Deputy Solicitor General

COMMENTS BY SAFELIBRARIES:

Links to cases cited have been added by me for everyone's ease and understanding.

SafeLibraries has written about Miami-Dade County School Board previously, and what a coincidence, another American Library Association "partner" in "Unite Against Book Bans" is back again to gaslight America—meanwhile, notice it's perfectly legal to keep political propaganda out of schools, Cuba then, the "transgender" lies now:

• "Cert Denied: Vamos a Cuba; Cuban-Americans Lead Way for Districts to Back Parents Rights Against ALA/ACLU False Claims of Banning and Censorship," by Dan Kleinman, SafeLibraries, 17 November 2009.
• "Humberto Fontova, the Media's 'Book Banning' Claims, and the ALA's Opposition to the 'Right to Apply Accuracy' in Public Schools," by Dan Kleinman, SafeLibraries, 17 February 2009.

And I love the way Florida Attorney General Ashley Moody used the American Library Association's greatest loss, US v. ALA, 539 US 194 (2003), where ALA spent over a million and a half dollars on a massive loss for ALA and ACLU, against the librarians yet again.  It's the gift that keeps on giving—to parents.  And notice how ALA just keeps plowing ahead with false information that harms school kids.

Then she used the policies of the school itself to argue in favor of dismissal of the case.  Really, a devastating amicus curiae brief for those who want the school kids to keep reading pervasively vulgar and educationally unsuitable material.

So all those books about pronouns and genders and trans rights?  All propaganda, all based on a fiction, also based on some people (especially ALA librarians themselves) trying to push things on kids in public schools using public funding to do so.  All illegal, despite state or federal laws requiring "diversity," "equity," and "inclusion."  All may be removed from public school libraries.  Immediately!  Buh bye!  The question is, will people continue to let ALA, NEA/AFT and ACLU bully them into allowing the harm to continue?

#AmWriting now how school boards may legally remove every single #trans and pronoun propaganda book from school #libraries.

All the hoaxes by @ALALibrary, like #UniteAgainstBookBans #BooksSaveLives #BannedBooksWeek, and calling parents “extremists” is all to hide that fact.… https://t.co/A7WscngvMm

— Dan Kleinman of SafeLibraries® (@SexHarassed) December 16, 2023

Lastly, for those who don't yet know, much local opposition to efforts by parents to protect children from harm caused by school librarians and school libraries is in reality artificially created with the time and platform and money of the American Library Association itself.  See:

• "Tennessee Walking Horses - TN Parents Astroturfed by ALA Use High Stepping Lies to Overwhelm Rutherford County Library Board; It's an ALA Pattern Nationwide," by Dan Kleinman, SafeLibraries, 15 December 2023.

—

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safelibraries.blogspot.com/2023/12/no-right-to-trans-propagandize-kids.html

On Twitter:

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Join World Library Association:

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A Local Governing Authority May Remove Its Library Board of Control Appointees At Any Time: Louisiana Attorney General Opinion 23-0015

Jeff Landry

Attorney General

State of Louisiana

Department of Justice

Civil Division

P.O. Box 94005

Baton Rouge, LA

70804-9005

February 13, 2023

OPINION 23-0015

The Honorable Raymond E. Garofalo, Jr. Louisiana House of Representatives District 103 100 Port Blvd., 2nd Floor Chalmette, LA 70043

64-1 LIBRARIES La. R.S. 25:214       La. R.S. 33:1415 A local governing authority may remove its library board of control appointees at any time.  Recalls La. Atty. Gen. Op. No. 01-29, in part.

Dear Representative Garofalo:

We received your request for an opinion of this office regarding the removal of members of a library board of control.  Specifically, you asked whether a local governing authority may remove its appointees to a library board of control prior to the expiration of their terms.

State law, La. R.S. 25:211-224, governs the creation, control, operation, and funding of most parish and municipal public libraries in Louisiana. 1  The local governing authority of a parish or municipality may, or in some cases must, "create, establish, equip, maintain, operate and support a public library in such parish or municipality." La. R.S. 25:211. 2  The governing authority of a parish or municipality, such as a police jury, parish council, or city council, creates a public library by ordinance. La. R.S. 25:212.  Each public library is governed by a board of control.  The governing authority of a parish or municipality appoints citizens of the parish or municipality as the members of the library board of control—five members for municipal libraries and five to seven members for parish libraries. La. R.S. 25:214(A) and (B).  Members of a library board of control serve five-year terms as set forth in statute. Id. 3  The mayor or parish president, or their designee, also serves as a member of the library board of control. Id.

A previous opinion of this office answers your question in the negative, stating, "[W]here the legislature specifically provided terms for these positions, it is the opinion of this office

____________________

1 These statutes apply to all parishes and municipalities that do not operate under a home rule charter. Home rule charter jurisdictions possess the authority to create and operate public libraries without reliance on La. R.S. 25:211-224, though the libraries in some home rule jurisdictions may be created pursuant to these laws. The library statutes "are unnecessary to empower home rule governments to create libraries." La. Atty. Gen. Op. No. 17-0193. However, "once a parish has established a library pursuant to La. R.S. 25:211, it must adhere to the provisions of that title regardless of the plan of government." La. Atty. Gen. Op. No. 16-0163 (citing La. Atty. Gen. Op. No. 76-1843).

2 A local governing authority must create a library "when not less than twenty-five per cent of the duly qualified property taxpayers resident in such parish or municipality shall petition the governing authority thereof to establish such a public library for such parish or municipality." Id.

3 The first members of a library board of control serve terms of staggered lengths, but all subsequent members serve five-year terms. Id.

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OPINION 23-0015

Representative Raymond E. Garofalo, Jr.

Page 2

that the Lafourche Parish Council lacked the authority to terminate members of the [library] board prior to the expiration of their term." La. Atty. Gen. Op. No. 01-29.  This 2001 opinion cites to La. Atty. Gen. Op. No. 74-1732, which reached the same conclusion in reliance on earlier jurisprudence, Stoker v. Police Jury of Sabine Par., 190 So. 192 (La.App. 2 Cir. 1939).

However, La. Atty. Gen. Op. No. 01-29 failed to consider a relevant statute enacted in 1987.  That statute provides, in relevant part, "Where a parochial or municipal governing authority is given the power to appoint members to boards or commissions, whether presently or hereafter created, the governing authority shall also have the power to remove and replace the members or commissioners." La. R.S. 33:1415(A).  At least two Louisiana appellate courts have interpreted La. R.S. 33:1415(A) and applied it to permit parish governing authorities to remove board members whom the governing authorities appointed to their positions.

In Law Enforcement District v. Avoyelles Parish Police Jury, 98-996 (La.App. 3 Cir.

2/3/99), 736 So.2d 842, the court found that the legislature enacted La. R.S. 33:1415(A) "to specifically grant to governing authorities the power to remove and replace members of an agency created by them," and that the language of the provision "unconditionally empowers the Police Jury to remove and replace members of this committee." Id. at 846-47. 4  Similarly, the court in McIntosh v. Madison Parish Police Jury, 554 So.2d 227 (La.App. 2 Cir. 1989), recognized the authority of a parish police jury to remove members of a port commission "at will," pursuant to La. R.S. 33:1415(A), even where the port commission was created by legislation which also provided the lengths of the commissioners' terms of office. Id. at 229.  Thus, in view of La. R.S. 33:1415(A) and the appellate courts' interpretations thereof, where a local governing authority is empowered to appoint members to a board or commission, the governing authority also possesses the ability to remove said appointees. 5

We acknowledge that another provision of La. R.S. 33:1415 could be misconstrued to cast doubt on the above principle as applied to library boards of control.  Louisiana Revised Statute 33:1415(C) provides that if there is a conflict between La. R.S. 33:1415 and any provision of La. R.S. 25:211-224, the latter prevails.  One could assume that a local governing authority's power to remove the members of a library board of control must conflict in some way with La. R.S. 25:211-224.  However, nothing in La. R.S. 25:211-224 purports to limit a local governing authority's discretion in managing its appointments to a library board of control.  Although La. R.S. 25:214 establishes five-year terms for library board of control members, the statute does not prohibit or otherwise regulate removal of appointees.  The mere existence of a set term for an appointee does not conflict with a governing authority's ability to remove an appointee and appoint a

____________________

4 The court also reasoned that La. Const. art. VI, § 15's grant of "general power" to parish governing authorities over the bodies they create "contemplates the power to remove members of the agency, restricted or limited only when other provisions of law place limitations on the power of removal as to a particular agency." Id. at 846.

5 See also La. Atty. Gen. Op. No. 17-0121 (Pursuant to La. R.S. 33:1415(A), parish council "may establish by ordinance the bases for removal of recreation district board members, including removal without cause.").

---

OPINION 23-0015

Representative Raymond E. Garofalo, Jr.

Page 3

replacement for the remainder of that statutorily established term.  See McIntosh, 554 So.2d at 229.

Instead, La. R.S. 33:1415(C) prevents local governing authorities from exercising other facets of power over library boards of control.  In La. Atty. Gen. Op. No. 04-0053, we relied on La. R.S. 33:1415(C) to advise that a police jury could not reduce or line-item veto library employees' salaries—an exercise of fiscal control over the library otherwise seemingly allowed by La. R.S. 33:1415(B)—because to do so would conflict with the library board of control's express authority to employ and set salaries for library

employees, as set forth in La. R.S. 25:215(A).  Moreover, if the Legislature did not intend for library boards of control to be subject to at least some of the provisions of La. R.S. 33:1415, these boards would have been included in La. R.S. 33:1415(D), which exempts planning commissions, zoning commissions, and ethics commissions from all aspects of La. R.S. 33:1415.

Considering the foregoing, it is the opinion of this office that a local governing authority may remove its library board of control appointees at any time.  To the extent La. Atty. Gen. Op. No. 01-29 conflicts with this conclusion, that opinion is recalled.

We trust this adequately responds to your request.  However, if our office can be of further assistance, please do not hesitate to contact us.

                                        With best regards,

                                        JEFF LANDRY 

                                       ATTORNEY GENERAL

                                       BY: /s/

                                            Alexander T. Reinboth 

                                            Assistant Attorney General

JL:ATR

SOURCE: Louisiana Attorney General Opinion 23-0015
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Parents May Legally Read Explicit Books at School Board Meetings: Mama Bears of Forsyth County v. McCall

We see again and again how parents are silenced by school boards when they try to read the explicit books school librarians are providing to school children.  It's okay for the kids to read the explicit material but not for adults on school boards to hear such material.  It's obvious evidence that the material is inappropriate for use in schools if it's inappropriate for use in school board meetings.

Along comes Mama Bears of Forsyth County v. McCall.  You can now read freely to school boards.  Let me know your experiences doing so by commenting below.

Gotta love them mama bears.

See:

Volokh, Eugene. “School District Consents to Protecting Citizens’ Rights to Read from School Library Books at Board Meetings.” Reason.Com (blog), February 6, 2023. https://reason.com/volokh/2023/02/06/school-district-consents-to-protecting-citizens-rights-to-read-from-school-library-books-at-board-meetings/.

FOX 5 Atlanta Digital Team. “Federal Judge Rules ‘Mama Bears’ Can’t Be ‘Censored’ from Reading Library Books to Board.” Text.Article. FOX 5 Atlanta. FOX 5 Atlanta, February 2, 2023. https://www.fox5atlanta.com/news/federal-judge-mama-bears-censored-reading-library-books-forsyth-county-school-board.

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URL of this page: 

safelibraries.blogspot.com/2023/02/parents-may-legally-read-explicit-books.html

Follow @SafeLibraries and Follow @SexHarassed

Library Bill of Rights Means 'Nothing': Berry v. Yosemite Community College District

A United States District Court judge has ruled that the American Library Association's so-called "Library Bill of Rights" actually means "nothing to indicate that there would be a private cause of action based upon a violation."  It is "not a federal statute."  Rather, it is "an unambiguous statement of principles that should govern the service of all libraries" that is "promulgated by the American Library Association."

In other words, when your local librarians cite the Library Bill of Rights as if it were some hard and fast rule of law equivalent to the Bill of Rights, or when your library board of trustees incorporates it into its own policy statements, you'll know four things—1) that's fake, 2) the Library Bill of Rights is meaningless in your community since it comes from ALA and not from your local law, or any law for that matter, 3) that's a sort of bullying by puffing up a mere promulgation of ALA as it if were real law, and you're labeled as the censor if you don't obey or if you insist that local law trumps a "statement of principles" from some organization based in Chicago, IL, and 4) they are hiding something.

It implies, for example, that it would be age discrimination to keep children from material inappropriate for them.  In reality, it's perfectly appropriate, and that's why Judith Krug and her ALA lost in the US Supreme Court where the Court said unanimously in United States v. American Library Association, 539 U.S. 194 (2003), "There are substantial Government interests at stake here: The interest in protecting young library users from material inappropriate for minors is legitimate, and even compelling, as all Members of the Court appear to agree."

ALA, on the other hand, says, "V. A person's right to use a library should not be denied or abridged because of ... age...."  See the difference?  By the way, the "V." is to give the appearance of legal legitimacy akin to the real Bill of Rights.

So, almost literally, a court has ruled ALA's so-called Library Bill of Rights means nothing, except to ALA itself and its members.

It is more of an "aspirational creed" than anything else: Reality Bites: The Collision of Rhetoric, Rights, and Reality and the Library Bill of Rights.

Here's what the United States District Court judge said about ALA's Library Bill of Rights in Berry v. Yosemite Community College District, Case No. 1:18-cv-00172-LJO-SAB. (E.D. Cal. Apr. 17, 2018):

E. Library Bill of Rights 

Plaintiff contends that Defendants violated Article III of the Code of Ethics of the Library Bill of Rights because they did not take the necessary legal steps before breaching her confidential library records and reporting them in the joint status report. However, the Code of Ethics of the Library Bill of Rights is not a federal statute, but is promulgated by the American Library Association. The Library Bill of Rights is an unambiguous statement of principles that should govern the service of all libraries. While the documents represent the polices of the American Library Association, there is nothing to indicate that there would be a private cause of action based upon a violation. See Interpretations of the Library Bill of Rights available at http://www.ala.org/advocacy/intfreedom/librarybill/interpretations (last visited April 16, 2018).

Which reminds me.  Libraries assert the Library Bill of Rights is the reason for allowing Drag Queen Story Hour to proceed.  But as we've seen the Library Bill of Rights means nothing.  What does mean something is the law that created the library.  Such laws require libraries to act for the benefit of the public, and Drag Queen Story Time actually harms the public, so it's against the law and can be stopped by application of the law—if people were only aware of the law.  But librarians don't want you to know that, that your own library law may preclude Drag Queen Story Hour.  They only want you to know about the Library Bill of Rights that in reality means nothing.  Isn't that interesting?  Makes you think.  This is what they are hiding by asserting the Library Bill of Rights, namely, that local laws controls, not some aspirational creed of an out-of-state organization.  See, for example:

• "How To Remove Drag Queen Story Hour From Libraries, Part 1: FOIA Library Law," by Dan Kleinman, SafeLibraries, 5 August 2019.

—

URL of this page: 
safelibraries.blogspot.com/2019/08/library-bill-of-rights-means-nothing.html

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@ALALibrary @OIF

Follow @SafeLibraries

Egli v. Chester County Library System, No. 18-4012 (E.D. Pa. Aug. 12 2019)

CHRISTOPHER EGLI, Plaintiff,
v.
CHESTER COUNTY LIBRARY SYSTEM, et al., Defendants.

Civil Action No. 18-4012.

United States District Court, E.D. Pennsylvania.

August 12, 2019.

CHRISTOPHER EGLI, Plaintiff, pro se.

CHESTER COUNTY LIBRARY SYSTEM, Defendant, represented by GUY A. DONATELLI, LAMB & MCERLANE, P.C.

MONTGOMERY COUNTY LIBRARY SYSTEM, Defendant, represented by JOHN P. GONZALES, MARSHALL DENNEHEY WARNER COLEMAN AND GOGGIN, P.C. & MONICA L. SIMMONS, MARSHALL DENNEHEY.

PENNSYLVANIA CABLE NETWORK & NATIONAL PUBLIC RADIO, Defendants, represented by MICHAEL BERRY, BALLARD SPAHR LLP & LESLIE MINORA, BALLARD SPAHR.

WHYY, INC., "RADIO TIMES", Defendant, represented by RONALD A. GILLER, GORDON & REES LLP & SARAH L. TOMKIN, GORDON REES SCULLY MANSUKHANI LLP.

MEMORANDUM OPINION

CYNTHIA M. RUFE, District Judge.

Pro se Plaintiff Christopher Egli filed suit against Defendants Chester County Library System ("CCLS"), Montgomery County Library System ("MCLS"), Pennsylvania Cable Network ("PCN"), National Public Radio ("NPR"), and WHYY, Inc., asserting violations under 42 U.S.C. § 1983, the Civil Rights Act of 1964, the Cable Communications Policy Act of 1984, and the Equality Act of 2010. Defendants have filed motions to dismiss Plaintiff's Complaint, and Plaintiff has filed a motion to add Lower Merion Township to the list of Defendants. Upon consideration of the motions and responses thereto, Defendants' motions to dismiss will be granted, Plaintiff's claims will be dismissed with prejudice and without leave to amend, and Plaintiff's motion to add Lower Merion Township will be dismissed as moot.

I. BACKGROUND^[1]

In early 2018, Plaintiff published a book titled "The Phantom Ogre; Exploring the Upside-Down World of anti-Semitism." According to Plaintiff, the book "examines the issue of anti-Semitism, offering ideas and thoughts about its causes and origins" while "simultaneously offering a critique of Judaism." Plaintiff sought to publicize his book and opinions at local libraries and through other media sources, without success.

In June and July 2018, Plaintiff allegedly contacted CCLS, which comprises 18 libraries, including Easttown Library. The "Materials Selection Policy" section of its website states that CCLS "strengthens and leverages the power of the public libraries in [its] community to ensure that every resident of Chester County has access to exceptional opportunities to read, learn, create, connect and contribute to a better quality of life." The Adult Program Coordinator of CCLS initially expressed interest in Plaintiff's presentation and asked for a copy of his book to review, but later emailed him back stating that the book talk does not meet CCLS' programming guidelines and included the following passage:

As with all Library-sponsored events, only those programs that promote and extend the Library's collections, services, goals and mission will be considered. A Library-sponsored program must not promote the services, products, or philosophy of an individual group.

Plaintiff alleges that this rejection was improperly based on the political content of the book, rather than according to the policy.

Plaintiff alleges that MCLS engaged similar conduct in rejecting his book and offer to present, which according to Plaintiff, consists of over 25 libraries, including Ludington Library. Despite Plaintiff's admitted inability to locate any specific policies of MCLS, he nonetheless alleges that MCLS cannot "pick and choose which religious views to promote — or exclude," particularly when it is publicly funded.

Plaintiff also alleges that PCN is a Pennsylvania-based television network which offers its programming throughout the Commonwealth in most cable packages. According to Plaintiff, PCN "is funded through subscriber fees paid by participating cable companies, and is regulated under 'The Cable Act.'" Plaintiff allegedly receives the network in his home through his Xfinity contract, and occasionally watches its "PA Books" program, which "offers one-on-one interviews with authors whose books are 'of interest to Pennsylvanians.'" Plaintiff wrote to PCN to request that he be featured on its "PA Books" program. PCN's director asked for a copy of Plaintiff's book to review, and a few weeks later, told Plaintiff that PCN was not "interested in interviewing him, adding[ ] 'the PA Books series focuses on nonfiction books with a Pennsylvania connection.'" Plaintiff alleges that PCN's decision in declining to interview him on its program reflected a "double standard" in deciding what was related to Pennsylvania, and that PCN simply did not want "to air political content [it] found objectionable."

Plaintiff alleges that he regularly listens to NPR, which he states is "partly funded by taxes, and [ ] regulated by the FCC." He admits in his Complaint that he has a long history of contacting NPR, "clogging NPR inboxes with emails, tweets, and comments to Management and the Ombudsman." Although NPR allegedly has broadcast some of his views "on general topics such as regulations, elections, the 2nd amendment, or other issues," it has never broadcast his criticisms of Israel. As Plaintiff explains, he submitted "hundreds of comments to NPR throughout 2017 and 2018 criticizing Israel and decrying NPR's coverage of anti-Semitism." Additionally, after writing his book, he allegedly wrote dozens of emails to two NPR radio shows to appear as a guest, "[n]one of [whom] were interested in discussing or disseminating [his] views." Such disinterest by NPR, according to Plaintiff, reflects "a policy . . . of stifling free speech where Israel is concerned" and that "NPR excluded his views because they were critical of one particular religion — Judaism — that is regularly accorded preferential treatment in NPR reporting."

Finally, Plaintiff brings claims against WHYY, which allegedly airs an interview program called "Radio Times" in Philadelphia and, like NPR, is "partly funded by taxes, and [ ] regulated by the FCC." According to Plaintiff, the program "routinely presents Israel in a favorable and sympathetic light, rarely including critics of Israel as guests." Plaintiff allegedly has written to the program "with some regularity" in the past few years, and although some of his comments have been accepted and sometimes read on air, he alleges that his opinions about Israel have always been screened by someone who told him that his "phone connection was bad, or put him on hold till the program was over." Additionally, after announcing the publication of his book and his desire to become a guest on WHYY's program, he received no reply from WHYY, which he attributes to "policies favoring Israel."

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's "plain statement" lacks enough substance to demonstrate that he is entitled to relief.^[2] In determining whether a motion to dismiss should be granted, the court must consider only those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party.^[3] As Plaintiff is proceeding pro se,the Court "must liberally construe his pleadings."^[4]

Courts are not, however, bound to accept as true legal conclusions framed as factual allegations.^[5] Something more than a mere possibility of a claim must be alleged; a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face."^[6]The complaint must set forth "direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory."^[7] Deciding a motion to dismiss, courts may consider "only allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim."^[8]

III. DISCUSSION

     A. Section 1983 Claims and the First Amendment

Plaintiff brings claims under 42 U.S.C. § 1983 against Defendants based on violations of his First Amendment rights. Section 1983 is not a source of substantive rights, but a means of vindicating violations of federal constitutional and statutory rights committed by state actors.^[9] To state such a claim, a plaintiff therefore must allege (1) a deprivation under the Constitution or laws of the United States, (2) by a person acting under color of state law.^[10]

          1. Library Defendants: CCLS and MCLS

Municipalities and other bodies of local government are considered to be "persons" within the meaning of § 1983, and can be sued for damages under the statute.^[11] As Plaintiff has alleged that CCLS and MCLS comprise public libraries, which are "funded through taxes on the residents of their respective counties,"^[12] and as these Defendants have not at this stage argued otherwise, they will be treated as municipalities and therefore state actors for purposes of their motions to dismiss.^[13]

Even assuming that CCLS and MCLS are state actors, however, Plaintiff also must allege a constitutional injury that was caused when the municipality acted pursuant to a custom or policy.^[14] There cannot be redress under § 1983, particularly where a custom or policy is at issue, without establishing an underlying violation of a federal constitutional or statutory right.^[15] Plaintiff asserts that his constitutional injury stems from an improper content-based rejection of his offer to provide his book and present on it at libraries in violation of the First Amendment.^[16] Thus, Plaintiff does not argue that he has been denied access to the libraries' facilities, but that the library has not made his book available to other patrons.^[17]

Libraries have broad discretion in determining the content of their collections. As the Supreme Court's plurality decision in United States v. American Library Association^[18]("ALA") held in the context of content-based internet filtering, library internet access is "no more than a technological extension of the book stack,"^[19] and public libraries require and merit "broad discretion" to make content-based decisions in collection and internet management since their purpose is to offer selective access of information to the public.^[20]

CCLS and MCLS, according to the allegations of the Complaint, exercised that discretion here. Plaintiff cannot allege a claim associated with a library's rejection of a particular book. Libraries are not required to accommodate every book or proposed talk, but instead must determine based on their professional judgment which materials are deemed to have "requisite and appropriate quality" to occupy the limited space available.^[21] There is nothing in the Complaint to suggest that either MCLS or CCLS had policies or customs that are inconsistent with this constitutionally permissible discretion or that target certain viewpoints. He alleges only that his book and proposed talk were not accepted, but as Plaintiff does not have a constitutional right to be included in a library collection, he has failed to state a plausible § 1983 claim against CCLS and MCLS.

          2. Media Defendants: PCN, NPR, and WHYY

Defendants PCN, NPR, and WHYY argue that the § 1983 claims against them should be dismissed for failure to state a claim because Plaintiff has failed to allege that they are state actors, and Plaintiff has no First Amendment right to be granted airtime by these entities. This Court agrees.

Section 1983's "color of state law element is a threshold issue; there is no liability under § 1983 for those not acting under color of law."^[22] A private entity may be considered a state actor under limited circumstances, where "there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself."^[23] In order to assess whether such entity may be deemed a state actor, three tests apply:

(1) whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state; (2) whether the private party has acted with the help of or in concert with state officials; and (3) whether the state has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity.^[24]

Each of these inquiries focuses on whether the government is responsible for the specific conduct alleged by Plaintiff.^[25] Determining whether these Defendants are state actors therefore necessitates a fact-based analysis of the allegations in the Complaint.^[26]

The Third Circuit has explicitly held over the last two decades that private entities do not transform into state actors under § 1983 simply because they may receive extensive government regulation and funding.^[27] In the context of the First Amendment cases, the Supreme Court has held that extensive government regulation does not transform a private entity into a state actor.^[28] Rather, "a private entity can qualify as a state actor in a few limited circumstances— including, for example, (i) when the private entity performs a traditional, exclusive public function; (ii) when the government compels the private entity to take a particular action; or (iii) when the government acts jointly with the private entity."^[29]

Here, Plaintiff solely alleges that PCN is a Pennsylvania-based television network which "is funded through subscriber fees paid by participating cable companies, and is regulated under 'The Cable Act.'"^[30] Plaintiff also alleges that NPR and WHYY are both "partly funded by taxes, and [] regulated by the FCC."^[31] Plaintiff has not adequately alleged in his Complaint that any of these Defendants "acted under color of state law" when each of them allegedly refused Plaintiff's request to discuss his book and opinions on the air.^[32]

Moreover, even if PCN, NPR, or WHYY could be considered a state actor, Plaintiff's allegations that he has been deprived of his First Amendment rights to appear on their programs are without constitutional merit. The Supreme Court held over 20 years ago that in the context of government-owned and operated media, "the First Amendment of its own force does not compel public broadcasters to allow third parties access to their programming."^[33] In Arkansas Education Television Commission v. Forbes, a public television station's editorial judgments regarding private speech presented to its viewers did not violate any First Amendment rights because:

Public and private broadcasters alike are not only permitted, but indeed required, to exercise substantial editorial discretion in the selection and presentation of their programming. . . . Were the judiciary to require, and so to define and approve, pre-established criteria for access, it would risk implicating the courts in judgments that should be left to the exercise of journalistic discretion.^[34]

Although Plaintiff alleges that PCN decided it did not want "to air [Plaintiff's] political content [that PCN] found objectionable,"^[35] it is well within the broad discretion of broadcasters such as PCN to choose among speakers expressing various viewpoints.^[36] "Much like a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum, a broadcaster by its nature will facilitate the expression of some viewpoints instead of others."^[37] Similarly in the context of radio broadcasting regarding NPR and WHYY, "radio broadcasting station[s] [are] not [] public utilit[ies] in the sense that [they] must permit broadcasting by whoever comes to [their] microphones."^[38] Because Plaintiff lacks any First Amendment rights to freely access PCN, NPR, or WHYY, all of whom exercised their constitutionally broad discretion in rejecting his requests, Plaintiff has failed to assert a viable § 1983 claim under the First Amendment.

     B. Cable Communications Policy Act of 1984

Plaintiff has brought prior cases asserting claims under § 531(e) of the Cable Communications Policy Act of 1984, and such claims "have been rejected repeatedly."^[39] Nevertheless, Plaintiff again asserts such a claim against Defendants in this case.^[40]Although Plaintiff did not cite to any specific section of the statute, it appears that he is bringing his claims under § 531(e) since it provides that "a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity . . . except [where it] contains obscenity, indecency, or nudity."^[41] As has been explained repeatedly, there is no private cause of action under § 531(e).^[42]

Moreover, none of the Defendants in this case are "cable operators," which are defined as:

[A]ny person or group of persons (A) who provides cable service over a cable system and directly through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.^[43]

"Courts have routinely interpreted the term 'cable operator' under the statute to apply to cable companies such as Verizon, Comcast, and Time-Warner, rather than individual television stations . . . or station managers."^[44] Here, Plaintiff is alleging claims against a television network, two radio companies, and two public library systems, none of which could be construed as falling within the statute. Thus, Plaintiff's claims will be dismissed with prejudice.

     C. Civil Rights Act of 1964

Plaintiff also asserts a claim under the Civil Rights Act of 1964, but does not specify which Title of the Act is implicated in his claim. To the extent that he may potentially be asserting a claim for a violation of Title II, which prohibits discrimination in places of public accommodation, his claim is without merit.

Title II of the Civil Rights Act of 1964 provides: "All persons shall be entitled to full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin."^[45] Plaintiff fails to allege whether any Defendant qualifies as a place of public accommodation.^[46] Moreover, even if any of the Defendants could qualify as public accommodations, Plaintiff has not asserted any viable claim as to a denial of his ability to enjoy the full use of Defendants' facilities and privileges on the basis of his membership in one of the listed protected classes under this statute.^[47] Instead, Plaintiff demands that Defendants provide a forum for his views, which goes far beyond access on the same terms as others, and which clashes with Defendants' broad discretion within the confines of the First Amendment to determine what information may be relayed through their facilities. Plaintiff therefore has not been denied any right under the statute. As such, Plaintiff's claims under the Civil Rights Act of 1964 will be dismissed with prejudice.

     D. Equality Act of 2010

Plaintiff alleges that Defendants violated "the tenants of the Equality Act of 2010." The statute to which he refers appears to be a legislative act of the Parliament of the United Kingdom, and therefore is not applicable to this action.^[48]

IV. LEAVE TO AMEND AND MOTION ADD DEFENDANT

In civil rights cases generally, the Third Circuit has held that courts must allow amendment, unless doing so would be inequitable or futile.^[49] In this particular case, because Plaintiff has stated no plausible claims against Defendants, including any violations of his First Amendment rights under § 1983, the Court finds that amendment would be futile.^[50] Thus, leave to amend will be denied and Plaintiff's pending motion to add Lower Merion Township to the Complaint will be dismissed as moot.^[51]

V. CONCLUSION

For the foregoing reasons, Defendants' motions to dismiss will be granted, Plaintiff's claims will be dismissed with prejudice and without leave to amend, and Plaintiff's motion to add Lower Merion Township will be dismissed as moot.

An appropriate order follows.


____________________

[1] The following facts, unless otherwise noted, are taken from the Complaint and assumed to be true for purposes of the motions.

[2] Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

[3] ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); Fay v. Muhlenberg Coll., No. 07-4516, 2008 WL 205227, at *2 (E.D. Pa. Jan. 24, 2008).

[4] Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citation omitted).

[5] Twombly, 550 U.S. at 555, 564.

[6] Id. at 570.

[7] Id. at 562 (internal quotation marks and citations omitted).

[8] Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Brown v. Daniels,128 F. App'x 910, 913 (3d Cir. 2005) (quoting Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004)).

[9] Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citation omitted).

[10] West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted).

[11] City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988); Monell v. N.Y. City Dep't of Soc. Servs., 436 U.S. 658, 690 (1978).

[12] Compl. [Doc. No. 1] ¶ 1.

[13] The Third Circuit has previously held in the § 1983 context that the Commonwealth of Pennsylvania's involvement with a public library was significant enough to find that the state was a joint participant with the library. Hollenbaugh v. Carnegie Free Library, of Connellsville, Pa., 545 F.2d 382, 385 (3d Cir. 1976). The decision was based on applying a nexus test to determine whether the library could be considered a state actor, weighing a series of factors including the percentage of the library's funds which came from state and local government financing, the number of the library's trustees appointed by governmental bodies, the fact that local municipalities passed resolutions designating the library as their agent, and that the city enacted an express tax to support the library. Id. at 384; cf. Chalfant v. Wilmington Inst., 574 F.2d 739, 758-59 (3d Cir. 1978) (holding that because the Wilmington Institute imposed no express tax, its Board of Managers was privately appointed, and there was little evidence of significant governmental involvement, it was not considered a state entity for purposes of § 1983).

[14] Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992) (citation omitted).

[15] City of Racho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 119-20 (2005).

[16] Compl. [Doc. No. 1] ¶ 13.

[17] The Third Circuit's decision in Kreimer v. Bureau of Police, for instance, addressed library policies which regulated the behavior and personal hygiene of persons wishing to freely access the information provided by a library. 958 F.2d 1242 (3d Cir. 1992). In Kreimer, a homeless man was expelled from public library premises due to his history of disrupting other library users and lack of personal care. Id. at 1247. After challenging the library's policy in part under the First Amendment right to receive information, the Third Circuit held that the policy prohibiting behavior inconsistent with the library's purposes in acquiring "knowledge through reading, writing and quiet contemplation" were upheld under a reasonableness standard. Id. at 1261-63. The personal hygiene policy, on the other hand, was subjected to strict scrutiny, but the court upheld that policy as sufficiently narrow in maintaining the library's facilities in a sanitary manner. Id. at 1264.

[18] 539 U.S. 194 (2003).

[19] Id. at 207 (internal quotation marks and citation omitted).

[20] See id. at 205 ("Public library staffs necessarily consider content in making collection decisions and enjoy broad discretion in making them."); cf. Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 871-72 (1982) ("As noted earlier, nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools. Because we are concerned in this case with the suppression of ideas, our holding today affects only the discretion to remove books. In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books . . . .").

[21] See ALA, 539 U.S. at 204 ("Although they seek to provide a wide array of information, their goal has never been to provide 'universal coverage.'" (citation omitted)).

[22] Groman, 47 F.3d at 638 (citing Versarge v. Twp. of Clinton, N.J., 984 F.2d 1359, 1363 (3d Cir. 1993)).

[23] Borrell v. Bloomsburg Univ., 870 F.3d 154, 160 (3d Cir. 2017) (citation and emphasis omitted); see also Glunk v. Noone, 186 F. Supp. 3d 453, 460 (E.D. Pa. 2016) ("The necessary 'close nexus' exists where the state exercises coercive power or provides 'such significant encouragement, either overt or covert,' deeming the conduct state action." (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999))).

[24] Borrell, 870 F.3d at 160 (quoting Kach v. Horse, 589 F.3d 626, 646 (3d Cir. 2009)).

[25] Id.

[26] Max v. Republican Comm. of Lancaster Cty., 587 F.3d 198, 200 (3d Cir. 2009) (citation omitted).

[27] See Gross v. R.T. Reynolds, Inc., 487 F. App'x 711, 719 (3d Cir. 2012) ("[A] private entity does not become a state actor for the purpose of § 1983 simply because it is subject to state regulations or receives funding from the state." (citations omitted)); Crissman v. Dover Downs Entm't Inc., 289 F.3d 231, 244 (3d Cir. 2002) ("[T]he presence of both these elements—regulation and flow of funds—that are separately unpersuasive in the state action inquiry does not amount to more than each alone; the combination brings no greater result— namely, no state action.").

[28] See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (providing that the First Amendment's Free Speech Clause "prohibits only governmental abridgment of speech" (emphasis in original)); Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) ("The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State . . . .").

[29] Halleck, 139 S. Ct. at 1928 (internal citations omitted)).

[30] Compl. [Doc. No. 1] ¶¶ 1, 14.

[31] Id. ¶ 2.

[32] See Halleck, 139 S. Ct. at 1932 ("[T]he 'being heavily regulated makes you a state actor' theory of state action is entirely circular and would significantly endanger individual liberty and private enterprise."). Additionally, it is worth noting that PCN has provided through its publicly accessible website that it is a private, non-profit organization, which "receive[s] no federal or state funding" and "is supported through a monthly per-subscriber fee paid by participating cable companies that carry us on their channel lineup." Reply to Resp. to Mot. [Doc. No. 33] at 5. NPR has noted that various district courts and circuit courts have held that it is a non-profit organization and is not a state actor. Mem. of Law in Supp. of Mot. to Dismiss [Doc. No. 26-1] at 7 (citing Shulman v. Facebook.com, No. 17-764, 2017 WL 5129885, at *4 (D.N.J. Nov. 6, 2017); Abu-Jamal v. Nat'l Pub. Radio, No. 96-594, 1997 WL 527349, at *4 (D.D.C. Aug. 21, 1997), aff'd, 159 F.3d 635 (D.C. Cir. 1998) (per curiam)). As expressed by the Third Circuit, "members of the media and a media company . . . generally do not qualify as state actors." Chambers v. Phila. Media Network Inc., 548 F. App'x 755, 756 (3d Cir. 2014) (citation omitted).

Finally, Plaintiff's primary support in opposition to these Defendants' motions to dismiss derives from two cases involving public, educational, and governmental ("PEG") cable channels which expressly permitted citizens to broadcast their own programs on the stations' channels. Pl.'s Br. [Doc. No. 31] at 2 (citing Demarest v. Athol/Orange Cmty. Television, Inc., 188 F. Supp. 2d 82, 84-85 (D. Mass. 2002); Halleck v. Manhattan Cmty. Access Corp., 882 F.3d 300, 306 (2d Cir. 2018)). Not only are these two opinions unrelated to the instant case, as Plaintiff fails to allege that PCN, NPR, or WHYY are PEG channels or provide PEG channels, but the Supreme Court overruled the Second Circuit case he cites to in Halleck, and held that private non-profit corporations operating PEG channels are not state actors. Halleck, 139 S. Ct. at 1926. Neither of the Defendants are allegedly similar to the PEG channel in the District of Massachusetts case either, which provides: "[PEG] channels are often the video equivalent of the speaker's soap box or the electronic parallel to the printed leaflet. They provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas." Demarest, 188 F. Supp. 2d at 84-85. Although PEG channels may in some cases be treated more analogously to public libraries, as there is more open use allowed by the general public, it cannot be said from the face of the Complaint that PCN, NPR, or WHYY may be viewed in the same manner.

[33] Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 675 (1998).

[34] See id. at 673-74.

[35] Compl. [Doc. No. 1] ¶ 19.

[36] See Forbes, 523 U.S. at 673 ("[T]elevision broadcasters enjoy the 'widest journalistic freedom' consistent with their public responsibilities." (citations omitted)). Furthermore, Congress rejected the argument that "broadcast facilities should be open on a nonselective basis to all persons wishing to talk about public issues." Id. (quoting Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 105 (1973)).

[37] Id. at 674.

[38] McIntire v. Wm. Penn Broad. Co. of Phila., 151 F.2d 597, 601 (3d Cir. 1945); see also Columbia Broad. Sys., Inc., 412 U.S. at 107-08 (noting that Congress rejected an attempt to impose "a limited obligation on broadcasters to turn over their microphones to persons wishing to speak out on certain public issues").

[39] Egli v. Strimel, 251 F. Supp. 3d 827, 844 (E.D. Pa. 2017).

[40] Additionally, the Court reminded Plaintiff that "he is bound by Federal Rule of Civil Procedure 11 and may be subject to sanctions for future filings that are frivolous or presented for an improper purpose." Id.

[41] 47 U.S.C. § 531(e).

[42] See, e.g., Strimel, 251 F. Supp. 3d at 840 ("Plaintiff cannot assert a claim under Section 531(e) of the Cable Communications Act because that provision provides no private right of action . . . ."); Egli v. Strimel, No. 14-6204, 2015 WL 5093048, at *3 n.5 (E.D. Pa. Aug. 28, 2015) (Restrepo, J.) ("Plaintiff's claim under 47 U.S.C. § 531(e) would fail because Section 531(e) does not provide for a private right of action to enforce violations." (citation omitted)); Egli v. Comcast of Pa., No. 03-6231, 2004 WL 2166301, at *1 n.1 (E.D. Pa. Sept. 22, 2004) (Padova, J.) ("Congress did not intend to create a private right of action for public access users to enforce violations of § 531(e).").

[43] 47 U.S.C. § 522(5).

[44] Strimel, 2015 WL 5093048 at *3 (citing Nat'l Cable & Telecomms. Ass'n v. F.C.C., 567 F.3d 659, 661 (D.C. Cir. 2009)).

[45] 42 U.S.C. § 2000a(a).

[46] See id. § 2000a(b) (listing types of facilities covered as public accommodations).

[47] See id. § 2000a(a) (listing "race, color, religion, or national origin" as protected classes under the statute).

[48] Equality Act 2010, c. 15 (U.K.), Table of Contents, https://www.legislation.gov.uk/ukpga/2010/15/contents (last visited August 9, 2018).

[49] Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Dover Steel Co., Inc. v. Hartford Accident & Indem. Co., 151 F.R.D. 570, 574 (E.D. Pa. 1993) ("While under the Federal Rules of Civil Procedure leave to amend pleadings is to be granted with liberality, the allowance is not intended to be automatic." (internal citations omitted)).

[50] See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) ("Futility means that the complaint, as amended, would fail to state a claim upon which relief could be granted." (internal quotation marks and citation omitted)).

[51] In his motion, Plaintiff asks the court to permit him to add Lower Merion Township since he discovered that it owns Ludington Library, which allegedly denied Plaintiff his First Amendment rights, and not Defendant MCLS. Pl.'s Mot. to Add Lower Merion Township to List of Defs. [Doc. No. 21]. Because of his desire to pursue his claims related to the First Amendment under § 1983, which have been determined to be insufficient beyond repair, his motion to add Lower Merion Township will be dismissed as moot.

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URL of this page:
safelibraries.blogspot.com/2019/08/egli-v-chester-county-library-system.html

Source:
Egli v. Chester County Library System, No. 18-4012 (E.D. Pa. Aug. 12 2019).

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