Prof. Volokh comments on Raizel's school library book removal post - very different interpretation from library community's ...

I sent this entry by Raizel on school library censorship to UCLA law professor Eugene Volokh and he responded by email (reprinted with permission) ...

Monday April 18, 2005

Eugene Volokh: Got it, thanks!  But the characterization of Justice White's views here, I think, is mistaken.  I copy Justice White's opinion below; it seems to me that his specifical disclaimer of any need to "address the First Amendment issues" (or have "a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library") means that he can't be seen as espousing any views on the First Amendment issues.  (Note also his favorable quote of the Silas Mason opinion, a quote that ends with "Without intimitating any conclusion on the merits, [we remand].") Finally, he specifically said "We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here."

So it's not correct, I think, to say that "Although Justice White refused to explicitly address constitutional limits on school board discretion, his concurrence with the plurality to remand the case only makes sense if there are are First Amendement limits on school board discretion in library book removal."  Rather, it makes sense to take him at his word -- he isn't addressing the First Amendment issues, deciding any constitutional questions, or intimitating any conclusion on the merits, but he's supporting a remand *because the remand might make it unnecessary to make any constitutional decision* (for instance, if the facts are such that they will uncontroversially "end the case").

That makes perfect sense given what he says, and given the traditional principle that indeed the Court tries to avoid deciding hard constitutional questions unless it's necessary to do so (a principle that isn't always adhered to, but that many Justices do view as important).  And it's consistent with the text of the opinion, which never intimates that he's finding some First Amendment limits here, and in fact basically says the contrary.  (At most, his opinion intimates that the issues are hard, since if they were easy then the Court might well foreclose any trial by simply saying that there's no constitutional problem no matter what the facts are.)

Eugene

JUSTICE WHITE, concurring in the judgment.

The District Court found that the books were removed from the school library because the school board believed them "to be, in essence, vulgar." 474 F. Supp. 387, 397 (EDNY 1979). Both Court of Appeals judges in the majority concluded, however, that there was a material issue of fact that precluded summary judgment sought by petitioners. The unresolved factual issue, as I understand it, is the reason or reasons underlying the school board's removal of the books. I am not inclined to disagree with the Court of Appeals on such a fact-bound issue and hence concur in the judgment of affirmance. Presumably this will result in a trial and the making of a full record and findings on the critical issues.

The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case. If, for example, the District Court concludes after a trial that the books were removed for their vulgarity, there may be no appeal. In any event, if there is an appeal, if there is dissatisfaction with the subsequent Court of Appeals' judgment, and if certiorari is sought and granted, there will be time enough to address the First Amendment issues that may then be presented.

I thus prefer the course taken by the Court in Kennedy v. Silas Mason Co., 334 U.S. 249 (1948), a suit involving overtime compensation under the Fair Labor Standards Act. Summary judgment had been granted by the District Court and affirmed by the Court of Appeals. This Court reversed, holding that summary judgment was improvidently granted, and remanded for trial so that a proper record could be made. The Court expressly abjured issuing its advice on the legal [457 U.S. 853, 884] issues involved. Writing for the Court, Justice Jackson stated:

"We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts. While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.

"Without intimating any conclusion on the merits, we vacate the judgments below and remand the case to the District Court for reconsideration and amplification of the record in the light of this opinion and of present contentions." Id., at 257.

We took a similar course in a unanimous per curiam opinion in Dombrowski v. Eastland, 387 U.S. 82 (1967). There we overturned a summary judgment since it was necessary to resolve a factual dispute about collaboration between one of the respondents and a state legislative committee. We remanded, saying: "In the absence of the factual refinement which can occur only as a result of trial, we need not and, indeed, could not express judgment as to the legal consequences of such collaboration, if it occurred." Id., at 84.

The Silas Mason case turned on issues of statutory construction. It is even more important that we take a similar course in cases like Dombrowski, which involved Speech or Debate Clause immunity, and in this one, which poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here. I therefore concur in the judgment of affirmance. [457 U.S. 853, 885]

Mary Minow: oh, okay now I see your point (though I must admit it kind of shakes me!) - Is this how you'd see the next step?

Factual outcome #1: Trial court finds board removed books because of political views (or reasons besides vulgarity).

Legal outcome: Trial court can set its own guidance as to whether that is permissible or not.

Result: If permissible, student Steven Pico appeals. If impermissible, School Board appeals.

Eugene Volokh: Exactly.

Mary Minow:

Factual outcome #2: Trial court finds board removed books because of vulgarity.

Legal outcome: Trial court must find it permissible since plurality + dissenters say so, even though they disagree on discretion levels. No viable appeal.

Eugene Volokh: Yes, that's right.

Mary Minow: There have been scads of later lower court opinions applying Pico as limiting school board discretion ... so I believe that at least in those jurisdictions the principle holds.

Eugene Volokh: Yup, but that's a lower-court developed principle -- which they're perfectly free to develop in the absence of the S. Ct. guidance that Pico failed to provide -- and not a Supreme Court-endorsed principle.

Comments

[Susan Nevelow Mart]

Mary Minow:

Does White write opinions on other school speech issues? Here the
government is the speaker (as educator), unlike in Red Lion,
where the government is regulator. As educator, the government has
far greater latitude to restrict (its own) speech....

Eugene Volokh:

Mary is exactly right: One shouldn't read White's quote too far
out of its context. Justices make all sorts of categorical statements
in one area that may not apply equally in other areas. One can argue by
analogy that they *should* apply. But such analogies aren't much help
when interpreting a specific White opinion in Pico -- an opinion that
repeatedly says and suggests that White is *not* reaching the
substantive question. That's why Pico is a 4-4 decision, not a 5-4 one.

Susan Nevelow Mart

-post deleted due to factual error-

[Susan Nevelow Mart]

Humm... This comment needs a little clarification. White is saying that there is a First Amendment issue raised by taking a book off a library shelf for viewpoint-based reasons, even if he won't
tell lower courts one way or the other how he will rule. It's a warning, and has certainly been taken by the library community to mean that viewpoint- based book removals are suspect.

[Susan Nevelow Mart]

Pico has always suffered from being a plurality opinion. But isn't White saying, to lower courts, in essence, if you find that the motivation to pull the book from the shelf implicates First Amendment rights, then I would have reached the First Amendment issue, which already has a plurality. And I'm the justice who wrote Red Lion Broadcasting Co. v FCC, where I wrote: "It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC." (89 S.Ct. 1794, 1807 (1969). So other courts looked on the potential result, and ruled accordingly. White's opinion does seem to raise the First Amendment issue, even if he sidesteps it.