At an appeal hearing this week in a closely watched book banning case, lawyers for rural Llano County, Tex., told the Fifth Circuit Court of Appeals that it should strike down a three-decade-old precedent and hand politicians near total authority over what books can go on—or be banned from—public library shelves.
The September 24 oral argument is the latest twist in Little v. Llano County. First filed in April 2022 by seven Llano County residents, the suit alleges that Llano County officials improperly removed some 17 books from library shelves because they disapproved of the content. In March 2023, Judge Robert Pitman found for the plaintiffs, and issued a preliminary injunction barring the county from removing books while the case proceeded and ordering several books to be returned to library shelves. In June, Pitman’s decision was affirmed by a split three-judge panel of the Fifth Circuit, that included a fiery dissent by ultra-conservative justice Stuart Kyle Duncan.
But on July 3, the Fifth Circuit abruptly vacated the panel’s decision, and ordered the appeal to be reheard en banc by the full court. And in arguments before the court this week, Jonathan Mitchell, lawyer for Llano County, came out swinging, telling the court that it should reverse its own holding in Campbell v. St. Tammany Parish School Board, a 1995 First Amendment decision involving the attempted removal of a book from a public school library that has long served as an anti-censorship bulwark for librarians.
"Twenty-nine years ago, this Court held…that the speech clause limits the authority of librarians and school officials to remove books from a government-owned library. That holding is wrong and should be overruled," Mitchell argued. "The government has no constitutional obligation even to provide these libraries. And it has no constitutional obligation to include a particular book within a library's collection. The speech laws may prevent the government from punishing or penalizing those who seek to access information and ideas, but it does not require the government to assist or facilitate anyone's efforts to obtain a particular book."
Mitchell argued that "the most straightforward way" to overrule Campbell would be to find that because libraries are public institutions that the books they choose are "government speech" and thus not open to the plaintiffs' First Amendment challenges, because the government is not required to be viewpoint neutral in its own speech.
While some members of the court appeared open to the argument, the judges raised numerous questions—including whether such a ruling would risk turning libraries into "silos of partisanship." Mitchell conceded that was a distinct possibility. He also conceded that there was no case law to support the argument that library curation decisions should be exempt from First Amendment scrutiny. And when asked about a recent decision by Eighth Circuit that rejected a similar government speech argument made by the state of Iowa in a case challenging its sweeping book ban law, SF 496, Mitchell offered little for the court to go on.
"What we recommended in our brief is that the court respectfully disagree with the Eighth Circuit," he said. "I think there's no way to overrule Campbell without creating a circuit split with the Eighth Circuit on this question. And that's unfortunate, but I think that's just the reality."
Mitchell then yielded to Florida solicitor general Henry Whitaker, who, on behalf of 17 states that filed amicus briefs in support of Llano's government speech argument, attempted to support Mitchell. The job of a librarian is to "separate out the gold from the garbage," Whitaker told the court, adding that it would be "essentially impossible to perform that task without giving the government the constitutional authority to make viewpoint-based decisions."
Arguing for the plaintiffs, attorney Matthew Borden called libraries a "magical place where anyone can go and learn about a wide variety of topics," and warned against discarding a 30-year-old precedent that has hardly been controversial.
"The First Amendment prevents the government from getting rid of ideas that it disagrees with. That was the standard that this Court set out in Campbell," Borden argued. "And Campbell has been the law in the circuit for 30 years without a flood of litigation or other difficulties." However, if the court were to suddenly overthrow Campbell and undermine the litany of cases that have protected diversity in library collections, it "would turn libraries from institutions of knowledge and education and learning and ideas into political institutions."
The proceedings then took a puzzling digression as judge Duncan—whose dissent surely led to the case being heard en banc before the full Fifth Circuit—began sparring with Borden over book selection and professional weeding guidelines for librarians.
"The Texas weeding guide says librarians should weed biased, racist, or sexist views, stereotypical views of people with disabilities or the elderly, outdated philosophies on sexuality, marriage, and family life, biased or inflammatory items about immigration, gender or race, bias, children's books with erroneous and dangerous information," Duncan said. "That's the Texas weeding guide. So I ask you, isn't that, in and of itself, viewpoint discrimination?"
The hearing then drifted away from the facts and events in the Llano County case into a strained line of questioning that took up much of the second half of the hearing. After nearly 20 minutes of argument that veered from rote takes about how libraries function to how museums should choose their exhibits to whether Madame Bovary was a "trashy" novel, Borden tried to bring the argument back to the case at hand.
"The First Amendment protects unpopular speech," Borden said. "It protects minority viewpoints in those circumstances where the majority can oppress the minority. That's why you have a First Amendment."
A Losing Argument?
Notably, the "government speech" argument has failed in several recent book banning cases, including in Texas, Arkansas, and most recently in litigation over Iowa’s book banning law SF 496, in which a three-judge panel of the Eighth Circuit soundly rejected the idea that the government speaks through the books librarians and educators choose to make available, noting that libraries by definition should offer diverse opinions, and not just state-approved content.
"A well-appointed school library could include copies of Plato's The Republic, Machiavelli's The Prince, Thomas Hobbes's Leviathan, Karl Marx and Freidrich Engels's Das Kapital, Adolph Hitler's Mein Kampf, and Alexis de Tocqueville's Democracy in America,” the Eighth Circuit held. "As Plaintiffs noted, if placing these books on the shelf of public school libraries constitutes government speech, the State 'is babbling prodigiously and incoherently.'"
And in July 2023, judge Timothy L. Brooks also forcefully rejected the state’s suggestion that public librarians function as state actors in a decision blocking portions of Arkansas's Act 372.
"The vocation of a librarian requires a commitment to freedom of speech and the celebration of diverse viewpoints unlike that found in any other profession," Brooks wrote, adding that the "librarian’s only enemy is the censor who judges contrary opinions to be dangerous, immoral, or wrong." Furthermore, though libraries may be funded by taxpayers and overseen by local and state officials, "the public library is not to be mistaken for simply an arm of the state," Brooks observed. "By virtue of its mission to provide the citizenry with access to a wide array of information, viewpoints, and content, the public library is decidedly not the state’s creature; it is the people’s."
While Llano County's government speech argument appears shaky on the law, the Fifth Circuit is widely considered to be the most conservative court in the land, and library advocates are rightly rattled by Llano County's argument. EveryLibrary founder John Chrastka told PW that if the court buys the government speech argument, it would be as big as overturning Miller, the 1939 Supreme Court case that sets forth a test for what constitutes obscenity.
"Allowing the Government Speech Doctrine to creep into the management of public libraries will upend everything that a public library is supposed to be," EveryLibrary reps said in a statement on the oral argument. "The outcome of this case will set a crucial precedent for the role of libraries in our democratic society, and it must reaffirm that libraries exist to serve the public’s right to access diverse, lawful ideas—not to promote government-sanctioned ideologies."
