Dealing a blow to the freedom to read, the United States Court of Appeals for the Fifth Circuit has reversed a district court’s preliminary injunction and dismissed free speech claims in Little v. Llano County. The lawsuit, filed in April 2022 by seven Llano, Texas, library patrons, concerns the removal of 17 books from the Llano branch library. Plaintiffs have 90 days following the decision to decide whether to appeal to the Supreme Court.
Plaintiffs celebrated first in March 2023, when district court Judge Robert Pitman of the Western District of Texas granted a preliminary injunction, and again in June 2024, a three-judge panel of the Fifth Circuit upheld Pitman’s decision by a two-to-one margin, with conservative circuit judge Stuart Kyle Duncan dissenting. A month later, the Fifth Circuit vacated its decision and scheduled an en banc hearing—in front of the full court—in September 2024.
In a 60-page majority opinion on May 23, written by judge Duncan and including a concurrence by judge James C. Ho, 10 members of the Fifth Circuit agreed that “plaintiffs cannot invoke a right to receive information to challenge a library’s removal of books,” a decision that contradicts long-established anti-censorship law including the Supreme Court’s 1982 decision in Board of Education v. Pico. Although the majority contends that “Supreme Court precedent sometimes protects one’s right to receive someone else’s speech,” they believe plaintiffs want to “transform that precedent into a brave new right to receive information from the government in the form of taxpayer-funded library books.”
Seven of the 10 judges in the majority also joined the opinion that “a library’s collection decisions are government speech and therefore not subject to Free Speech challenge.” In their estimation, “libraries curate their collections for expressive purposes” and “their collection decisions are therefore government speech.” Notably, the government speech argument has been dismissed in other courts of appeals, including the Eighth Circuit.
In addition to reversing the preliminary injunction, the Fifth Circuit also overruled its own decision for the plaintiffs in Campbell v. St. Tammany Parish School Board, a 1995 First Amendment case in which a school board removed a book on voodoo from school libraries in a Louisiana parish. Campbell, which held that the book removal violated students’ right to receive information, “suggested students could challenge the removal of a book from public school libraries,” the court writes in the new decision, asserting that the finding “was based on a mistaken reading of precedent” and “wrongly decided” 30 years ago.
Seven members of the Fifth Circuit, led by judge Stephen A. Higginson, filed a 36-page dissent. They believe that by overturning Campbell, the court takes away a useful tool that “provides a workable standard for libraries” and helps librarians distinguish “between constitutional collection management and unconstitutional denial of access to ideas.” They noted that the combination of Pico and Campbell has “prevented undue federal court intervention in the operation of libraries,” and that the new decision places both in jeopardy by treating “the durable Pico decision as essentially meaningless.”
“Today, a majority of our court sanctions government censorship in every section of every public library in our circuit,” the dissenting judges write. “As counsel for Defendants acknowledged in oral argument, there is nothing to stop government officials from removing from a public library every book referencing women’s suffrage, our country’s civil rights triumphs, the benefits of firearms ownership, the dangers of communism, or, indeed, the protections of the First Amendment.”
Lead plaintiff Leila Green Little wrote to PW with her reaction to the Fifth Circuit decision. “This ruling is harmful, not only to the Llano Public Library System but to all libraries in the Fifth Circuit (Texas, Louisiana, and Mississippi),” Little wrote. Her concern, she added, is that public libraries could become “propaganda centers, with their contents dictated by the political and religious whims of the local elected officials. In Llano, that may mean there will be no books discussing LQBTQ characters or acknowledging our country’s history of racism. But in other places, that may mean there will be no books about Christian values or celebrating conservative politicians. No citizen should be happy about a decision that lets their government remove books with which the current political climate disapproves.”
Legitimizing a ‘government speech’ argument?
Elly Brinkley, the staff attorney for PEN America’s U.S. Free Expression Programs, called the decision “devastating.” Brinkley told PW that “the government speech argument is a really extremist argument, and the Supreme Court has cautioned that it is subject to dangerous misuse” by those who would “attempt to legitimize a patently unconstitutional attempt to suppress viewpoints they don’t like.” She fears the Fifth Circuit’s decision will “open the door for much more censorship.”
Leaders of the American Library Association and the Freedom to Read Foundation issued a joint statement calling themselves “deeply disappointed” by the decision, which they wrote “is in direct conflict with longstanding legal precedent and with recent rulings issued by the Eighth Circuit and other district courts that have considered these issues.”
John Chrastka, executive director of the advocacy organization EveryLibrary, told PW, “This decision strips away core First Amendment protections in public libraries and hands ideological control to local governments." EveryLibrary posted a statement that found "staggering" contradictions in the ruling, which allows local governments to determine what materials library patrons may access, and reinforced a footnote in which the Fifth Circuit writes, “We express no opinion on whether a public library’s removal of books can be challenged under other parts of the Constitution.”
Anticipating the ire of its critics, the Fifth Circuit court writes that “we note with amusement (and some dismay) the unusually over-caffeinated arguments made in this case. Judging from the rhetoric in the briefs, one would think Llano County had planned to stage a book burning in front of the library.” As an example, “one amicus intones, ‘Where they burn books, they will ultimately burn people.’ Take a deep breath, everyone. No one is banning (or burning) books.”
Brinkley called the opinion “derisive” and “infuriating” in tone. “It mocks concerns about censorship, as if that is not the reality, as if this hadn’t been a coordinated attempt across the country to impose specifically ideological ideas on some and ban others,” she said, noting PEN’s own reports tracking the consequences of book banning nationwide.
The dissenting judges likewise bridled at the opinion’s teasing of free speech advocates and what they called its “mischaracterization” of First Amendment rights. “The majority—apparently ‘amuse[d]’ by expressions of concern regarding government censorship—disparages such concerns as ‘over-caffeinated’ because, if a library patron cannot find a particular book in their local public library, they can simply buy it,” the judges write. “This response is both disturbingly flippant and legally unsound. First, as should be obvious, libraries provide critical access to books and other materials for many Americans who cannot afford to buy every book that draws their interest, and recent history demonstrates that public libraries easily become the sites of frightful government censorship.”
They conclude their dissent with President Dwight D. Eisenhower’s words to graduates during his June 1953 commencement address at Dartmouth College. In the speech, Eisenhower described “a country of which we are proud” that is still “a long way from perfection” because people “have not had the courage to uproot” racial and religious discrimination. He cautioned graduates, “Don’t join the book burners. Don’t think you are going to conceal faults by concealing evidence that they ever existed.”
The ALA and Freedom to Read Foundation referred to the “fundamental principle of the First Amendment that no government agency, including public libraries and public schools, may restrict or censor materials because of the viewpoint or ideas expressed by their author. When this case is heard by the Supreme Court, we are confident that common sense will prevail, and that the justices will uphold the freedom to read in our nation’s libraries.”
Little, the lead plaintiff, echoed the ALA’s belief that SCOTUS will be the next stop. “I have faith that the Supreme Court will correct this grievous wrong,” she said, “because if it does not, libraries as we have known them for over a century may no longer exist.”
PEN America’s Brinkley did not directly invoke SCOTUS, but in a statement called for another appeal. “This astounding decision reveals either ignorance of the scale and danger of state censorship or deliberate indifference toward it,” she wrote. “At a time when censorship is running rampant at both state and federal levels, this opinion arms the government with a powerful new and fallacious weapon to erode the free exchange of ideas, a foundation of our democracy. It must be overturned.”
The dissenting judges said the Fifth Circuit’s decision raises a “sobering” question, of “whether government officials may restrict—abridge—the spectrum of ideas available to the public by culling books from public library shelves, simply because those officials find the books’ ideas inappropriate, offensive, or otherwise undesirable. The answer is: ‘No.’”
This article has been updated with additional information.
