Following a May 23 decision in the Fifth Circuit Court of Appeals, which dismissed free speech claims in a public library book removal case in Texas, plaintiffs in Leila Green Little et al. v. Llano County are turning to the Supreme Court. Plaintiffs have petitioned for a writ of certiorari, asking SCOTUS to review the Fifth Circuit’s decision. This month, publishers and other right-to-read advocates filed petitions encouraging the court to take the case. On October 24, the defendants exhorted the court to wait.
At stake in Little v. Llano County are fundamental First Amendment protections that apply in public libraries, including the right to receive information, and whether or not library collections are a form of “government speech,” as a plurality in the Fifth Circuit contended. The case would determine how much control public officials exert over library collection decisions, from book removals to approved selections, and would set precedent for not only public libraries but public school classrooms, public K–12 libraries, and higher education.
Among those submitting amici curiae, offering reasons the court should hear the case, are the Big Five publishers, in cooperation with Sourcebooks and the Authors Guild; PEN American Center; the American Library Association, working with the Freedom to Read Foundation and Texas Library Association; the National Coalition Against Censorship, working with Steven Pico, the original plaintiff in Board of Education, Island Trees School District v. Pico; the Foundation for Individual Rights and Expression; First Amendment Law Professors, a group of legal scholars who teach and research the Free Speech Clause; and Louisiana Citizens Against Censorship, with the Louisiana Library Association.
Dan Novack, VP and associate general counsel at PRH, feels there are several good reasons for SCOTUS to consider the case. “None of us were happy to see the result at the en banc level, and there was a consensus that this case should go to the Supreme Court,” Novack told PW. “Everyone is nervous,” he said, noting that some would argue to wait for a different court, “but I don't think we should assume that things are going to get better. With certain constitutional rights, there’s always a now-or-never component.”
Novack said the present court “has not demonstrated hostility to the First Amendment at all, really,” even if its interpretations of First Amendment rights have not pleased the book industry; last June, the Supreme Court’s religious freedom ruling in Mahmoud v. Taylor allowed restrictions on LGBTQ+ books. “You could argue that's a strong First Amendment position, even though I don’t think the analysis there was ultimately the correct way to do it,” Novack said. “And there’s the fact that Justice Alito has specifically called the government speech doctrine into question as dangerous and needing to be very carefully circumscribed.”
Elly Brinkley, staff attorney for PEN America’s U.S. Free Expression Programs, noted that because only a plurality on the Fifth Circuit argued in favor of government speech, the Supreme Court justices could choose to focus on the right to receive information. “They don’t necessarily need to base their decision on” government speech doctrine, Brinkley said. “I’d be happy for them to take it up to reject it.”
PEN’s amicus brief emphasizes in particular the ethical and economic strain placed on authors. “What we are hearing from authors is that this is a devastating climate in which to be a writer, and we know this to be their experience over the past four years,” Brinkley told PW. “We’ve heard time and again from writers that they’re scared to write what they want to write because their publishers are not going to touch it. Their inability to reach their audiences in a democratic way is not just a financial, reputational, or career harm—it has a chilling effect upon speech and dampening of the work they want to do more broadly.”
Reason to wait?
While a group of publishers, literary organizations, and intellectual freedom advocates agitate for SCOTUS review of Little v. Llano County, the defendants disagree. “The Court will eventually have to resolve whether (and to what extent) the Speech Clause prevents government-owned libraries from removing materials in their collections,” wrote Jonathan F. Mitchell, of Mitchell Law PLLC in Austin, in last week’s opposition brief, but the defendants feel SCOTUS should put it off due to several cases currently on appeal. These include Penguin Random House v. Robbins, a case concerning Iowa Senate File 496 that’s being heard by the Eighth Circuit; Crookshanks v. Elizabeth School District, a Colorado book restriction and viewpoint discrimination case on appeal with the 10th Circuit; and Parnell v. Escambia County School Board, a Florida book removal case filed by the authors of And Tango Makes Three, on appeal at the 11th Circuit.
“The Court should wait until it has the benefit of the rulings and opinions in Penguin Random House, Crookshanks, and Parnell before taking up the constitutionality of library book removals,” Mitchell wrote. In the brief, defendants noted that in the Parnell case, Chief Judge Allen C. Winsor of the Northern District of Florida “entered judgment for the city after endorsing and following the Fifth Circuit’s decision” in Little v. Llano County. Judge Winsor cited the Little decision but did not base his decision on the Fifth Circuit’s plurality opinion when he ruled in favor of the defendants in Parnell.
According to the Little v. Llano County counsel, the deciding question should be, “Did the Fifth Circuit correctly hold that the Speech Clause is inapplicable to a public library’s curation decisions, as a library cannot ‘abridge’ anyone’s freedom of speech by offering a limited collection of materials to the public—even when that collection fails to include books that certain library patrons want, and even when the library is accused of removing previously included books because of their content or viewpoints?”
ALA, FTRF, and TLA, in their collaborative amici curiae, have ready responses to that question, based on the ALA’s 1939 Library Bill of Rights and professional practice. They refer to libraries as “citadels of democracy” and call the Fifth Circuit’s majority opinion “anathema to the role of public libraries in American civic life” and to First Amendment principles.
The brief explains that librarians represent and serve diverse communities, regardless of their personal political leanings or which political parties are in office. “The purpose of public libraries is not to determine which books are ‘worth reading’ or which ideas or viewpoints ‘belong,’” they wrote, quoting language from the Fifth Circuit’s interpretation and from Pico. “It is rather to create a locus of ‘freewheeling inquiry,’ where the people, not the government, choose which ideas to read, consider, or reject.”
