With a hearing before the full Fifth Circuit Court of Appeals in New Orleans less than two weeks away, a host of amicus briefs were filed this week in a closely watched case over book banning in Llano County, Tex.
On one side, authors, librarians, publishers, and freedom to read advocates are urging the full court to uphold Judge Robert Pitman’s March 2023 opinion and order finding that Llano County officials improperly banned several books from library shelves, while, in a brief of their own, a host of states urged the court to find that local politicians can exercise near total control over which books and materials are allowed in schools and libraries.
The briefs comes after a three-judge panel in June delivered a 2-1 decision largely upholding Judge Pitman's preliminary injunction and ordering eight books returned to library shelves in Llano County. The majority opinion, authored by Judge Jacques L. Wiener, held that the district court came to the "reasonable conclusion" that the books were pulled on orders from county officials “who disagreed with their message"—which, the court held, "is not a valid reason to remove a book."
But on July 3, the Fifth Circuit vacated the three-judge panel’s decision, ordering the appeal to be reheard en banc by all 18 members of the court. That hearing will take place on September 24. Notably, it took the initial three-judge panel a full year to return a decision, a delay that puzzled court-watchers given the fairly straightforward facts of the case.
A brief arguing for the court to affirm Pitman’s decision includes bestselling authors Stephen King and James Patterson, the Association of American Publishers, the Authors Guild, Candlewick Press, Scholastic, Sourcebooks, and all of the Big Five publishers—Hachette, HarperCollins, Macmillan, Penguin Random House, and Simon & Schuster.
“Amici write because they and their members are the real speakers here,” the publisher and author brief states. “The Banned Books are their speech. These books and the subjects they explore have been among the most frequently targeted in recent years. To protect readers’ right to engage with these ideas—and with a diversity of other ideas across the ideological and experiential spectrum—the Court should reaffirm that the removal of books from public library shelves based on official disapproval of the books’ ideas violates the First Amendment.”
In addition, a host of allies have also filed briefs, including the ACLU, the American Library Association, the Freedom to Read Foundation, the Texas Freedom to Read Project, and the Texas Library Association.
“Guided by highly trained professional librarians, public libraries have one goal: to provide books and other materials ‘for the interest, information, and enlightenment of all people of the community the library serves’ by selecting materials ‘presenting all points of view on current or historical issues,’ ” the library brief states. “The Attorneys General of several states see little value in that promise. In their view, the public library should not be the traditional locus of ‘freewheeling inquiry, but a decidedly less free place, where government officials may censor any book based solely on its content or perceived viewpoint.”
Indeed, the initial Fifth Circuit decision included a fiery dissent by ultra-conservative justice Stuart Kyle Duncan, who wrote that decisions about what goes on library shelves are in fact government speech and thus outside the reach of the plaintiffs' First Amendment claims. In their own amicus brief, a number of states—Texas, Alaska, Arkansas, Florida, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, South Carolina, Utah, and West Virginia—endorsed Duncan’s view, urging the full fifth circuit to find that decisions about what goes on library shelves should be controlled by politicians.
“The county’s decisions over which books to offer its patrons in its public libraries, at its own expense, are its own speech,” the states’ brief argues. “The Court should reject the district court’s decision to countermand the county’s discretion in managing the content of its public libraries, thereby turning a matter historically left to local democratic processes into a federal issue settled by lawyers and judges in courtrooms far removed from the community the relevant library was created to serve.”
Notably, that “government speech” argument has failed in several book banning cases in recent months, most recently in litigation over Iowa’s book banning law SF 496, in which a three-judge panel of the Eighth Circuit soundly rejected that the government spoke through the books librarians and educators choose to make available.
"Contrary to Defendants' contention, the Supreme Court has not extended the government speech doctrine to the placement and removal of books in public school libraries," the Eighth Circuit wrote in a brief but thorough opinion. The court held that "it is doubtful that the public would view the placement and removal of books in public school libraries" as the government speaking, noting that libraries by definition should offer diverse opinions.
“Take routine examples of historic tomes on political science. A well-appointed school library could include copies of Plato’s The Republic, Machiavelli’s The Prince, Thomas Hobbes’ Leviathan, Karl Marx and Freidrich Engels’ Das Kapital, Adolph Hitler’s Mein Kampf, and Alexis de Tocqueville’s Democracy in America,” the court continued. “As Plaintiffs noted, if placing these books on the shelf of public school libraries constitutes government speech, the State 'is babbling prodigiously and incoherently.’ ”
