The U.S. Supreme Court has denied requests to consider Leila Green Little et al. v. Llano County, a closely-watched Texas book removal case that jeopardizes First Amendment rights in public libraries.
In May, the Fifth Circuit Court of Appeals ruled in favor of the defendants, overturning a district court’s preliminary injunction and its own June 2024 three-judge panel decision. Because the Fifth Circuit’s jurisdiction includes Texas, Louisiana, and Mississippi, the decision applies across all three U.S. states. Publishers, librarians, and literary organizations had petitioned SCOTUS for a writ of certiorari, the process by which SCOTUS decides whether to take a case, but to no avail.
“This morning, the Supreme Court of the United States denied our petition for certiorari,” plaintiff Leila Green Little wrote in an email on December 8. “They will not hear our case. No explanation is given.”
Little continued, “This means that the en banc ruling of the Fifth Circuit Court of Appeals will remain in effect for Texas, Louisiana, and Mississippi. This means that public library patrons have no First Amendment rights to access information. This means we now live in a censorship state.”
Free speech proponents and library advocates expressed profound dismay. “We are devastated,” Texas Freedom to Read Project cofounder Laney Hawes told PW. She worried that conservative library boards and schools across the Fifth Circuit would see the Supreme Court’s inaction as “their free pass, giving them permission to have books pulled. Are we to the point where a library gets to write a policy that reads ‘this library will now have no books that have gay characters’? This could open the door to what we call acquisitions censorship.”
Hawes observed that the books in Llano County “were removed because of the ideas on their pages, not because the library needed to make curatorial decisions.” As a Texas parent, Hawes said, “This affects my children, my family, my community, the entire state. It’s a really hard hit for all of America and for libraries as the bastion of free speech we believe them to be.”
American Library Association president Sam Helmick echoed Hawes. “By declining to review the Fifth Circuit’s decision, the Supreme Court has empowered state and local governments to limit which books and materials the people can access in their libraries,” Helmick said. “The ruling threatens to transform [public] libraries into centers for indoctrination instead of protecting them as centers of open inquiry, undermining the First Amendment right to read unfettered by viewpoint-based censorship.”
Helmick also noted that the “ethical principles of librarianship” require that curation be nonpartisan and inclusive. “Public libraries have historically served as open institutions committed to offering a broad range of ideas and perspectives,” they said. “Efforts to bypass established review processes or remove books based on ideological objections erode these principles and violate the constitutional rights of all community members.”
Down but not out
Little v. Llano County would have been the first case on book banning to come before the Supreme Court since 1982. More than 40 years ago, the Court decided Board of Education, Island Trees School District v. Pico, in a 5–4 plurality opinion. A plurality does not establish binding precedent, but Pico—which halted the suppression of library books after a school district deemed books by Richard Wright, Kurt Vonnegut, and others ideologically offensive—is a go-to example for plaintiffs seeking to uphold First Amendment rights and prevent censorship.
Now, the Fifth Circuit’s decision in Little v. Llano County threatens intellectual freedom in public libraries, and—in its own plurality opinion—argues that library curation is a form of “government speech,” although the Supreme Court has not weighed in on the matter. “The Llano decision has already been used to uphold the devastating wave of book bans across the country,” Elly Brinkley, staff attorney for U.S. Free Expression Programs, said in a press statement. “Leaving the Fifth Circuit’s ruling in place erodes the most elemental principles of free speech and allows state and local governments to exert ideological control over the people with impunity. The government has no place telling people what they can and cannot read.”
Dan Novack, VP and associate general counsel at Penguin Random House, expressed profound concern and resolve. “The Supreme Court’s decision not to review Little v. Llano is a setback in timing, but not in justice,” Novack stated. “We are undeterred and remain committed to defending the freedom to read in courtrooms across the country, including our ongoing challenges in the Eighth, Ninth, and 11th Circuits. This issue will return to the Supreme Court in the near future, and we are working to establish strong, constitutional precedents that counter the Fifth Circuit’s ruling.”
Other pending lawsuits on book bans—in Florida, Iowa, and elsewhere—have the potential to advance to the highest court in the land, Novack said. “Our publisher-led coalition has three state-level challenges that will be decided by the circuit courts in the coming months,” he told PW. “A circuit split may inspire the Supreme Court to take up the issue,” because if two circuit courts reach different conclusions, the Supreme Court is more likely to step in. “While that strategy plays out, we are increasing our engagement with state legislatures. We have helped pass several library laws that respect free speech principles and are expanding those efforts across the country.”
John Chrastka, executive director of advocacy organization EveryLibrary, agreed that “immediate and tangible harm” is being done to residents of the Fifth Circuit and beyond. “Having the Supreme Court let the Fifth Circuit decision stand is another plank in a rapidly evolving and pernicious platform of government speech doctrine,” Chrastka warned. “The idea that the First Amendment doesn’t apply in libraries is both an existential and tactical issue for anyone concerned with free expression.”
Hawes of TFTRP asked a rhetorical question—“Does the First Amendment apply anymore?”—and speculated that in three out of 50 states, it's in big trouble. The “only good news” is that the Supreme Court “leaves the door open” for a future First Amendment case, she said. “There’s value in that for us, because they didn’t see it as a slam dunk.”
