On September 24, the full Fifth Circuit Court of Appeals—all 18 judges—will hear arguments in a closely watched book banning case from Llano County, Tex. And last week, a flurry of amicus briefs filed in the case starkly laid out what’s at stake in the litigation: a future where school and public libraries remain bastions of independent thought and inquiry, or a future where government officials have near total control over what can be read in libraries and schools.
The latest filings come more than two years after several citizens first sued Llano County officials for removing 17 books deemed inappropriate from library shelves. In March 2023 federal judge Robert Pitman found the removals were likely unconstitutional and ordered the county to refrain from further book banning, and to return more than a dozen books to library shelves.
In June, a split three-judge panel of the Fifth Circuit largely upheld Pitman’s order. But a month later, the court vacated that decision and ordered the appeal to be reheard by the full court, setting up one of the most high-stakes legal showdowns yet in this yearslong wave of book banning.
Llano County’s argument, meanwhile, is one that has underpinned book-banning legislation in several states over the past two years: i.e., because libraries and schools are largely funded by taxpayers, the books placed there are “government speech” and thus are not subject to the plaintiffs’s First Amendment claims. In other words, the government should be free to put whatever it wants in libraries and classrooms—and to remove whatever it wants, too. And in an amicus brief filed last week, 18 states urged the full Fifth Circuit to support that view.
On the other hand, in seven amicus briefs, a wide array of publishers, authors, librarians, and advocacy groups—including bestselling authors Stephen King and James Patterson, all of the Big Five publishers, and a host of library and advocacy groups—slammed the government speech argument. “Public libraries have one goal: to provide books and other materials ‘for the interest, information, and enlightenment’ of all the people of the community, the library serves.” Their opponents, the brief asserted, see the library as “a decidedly less free place, where government officials may censor any book based solely on its content or perceived viewpoint.”
Notably, after a legal blitzkrieg in recent years supported by publishers, authors, and other allies, the government speech argument at play in the Llano case has been soundly rejected several times, including in high-profile decisions in Arkansas, Texas, and most recently, in litigation over Iowa’s book banning law SF 496, where a three-judge panel of the Eighth Circuit court of appeals dismissed the argument, noting that libraries and schools, by definition, must offer diverse books.
“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 court continued. “If placing these books on the shelf of public school libraries constitutes government speech, the State is ‘babbling prodigiously and incoherently.’ ”
But it was Judge Timothy L. Brooks in Arkansas who may have said it best in his July 2023 opinion enjoining parts of Arkansas’s Act 372. “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,” Brooks wrote. “It is the people’s.”
The Next Phase
Meanwhile, with a host of litigation starting to show success, there is a sense that freedom to read advocates may finally be turning the tide. In that sense, what happens at the Fifth Circuit in the Llano case looms as something of an inflection point. And publishers told PW they understand the need to expand their efforts beyond the courtroom.
“The legal campaigns can deliver a lot of relief and can have a tremendous impact,” says Dan Novack, associate general counsel for Penguin Random House, which has been the leading publisher organizing against book bans, including as plaintiffs in several lawsuits. “But does this end the book bans? It may help end some of these top-down, state-driven bans. But that just really restores us to this Whac-a-Mole game that publishers have always played before this surge began.”
This month, Penguin Random House made a major move: the publisher hired a full-time senior-level public policy manager (whose name will be announced soon) to focus on defending the freedom to read. The new manager will report to directly to PRH SVP Skip Dye and will be tasked with helping to build and organize legislative alliances.
“The threat to books and reading is an essential topic that we needed to proactively address, not just for business reasons but also for the broader societal implications,” PRH CEO Nihar Malaviya told PW when asked about the hire and the company’s work defending the freedom to read. “Based on my own personal experience, I know how important access to books in school and public libraries is. We want to do whatever we can to support our authors and illustrators, but also the teachers and librarians who have been at the forefront of this battle.”
The Association of American Publishers has also dialed in more closely on the issue. While the hot-button, hyperlocal politics of book banning are a bit harder to confront than issues traditionally within the AAP’s wheelhouse—like federal copyright law, for example—AAP reps say the organization is committed to the fight.
“I would say it’s constant vigilance,” AAP deputy general counsel Matthew Stratton told PW. “Our strategy is multifaceted. It includes lawsuits, and it includes a legislative strategy. Sometimes we go directly, but we often work with coalitions. But a key part of any legislative strategy is finding the right messenger. And local constituents are always more persuasive than stakeholders without a local presence.”
Developments in several states in the coming months will reveal much about the success of the legal campaigns now underway (with new actions also expected to be filed soon), but the local politics around book bans, especially ahead of the November election, remain red-hot. Deborah Caldwell-Stone, director of the ALA’s Office for Intellectual Freedom, praised the efforts of publishers and authors, including through coalitions like the ALA’s Unite Against Book Bans. And she agrees that winning court cases will “give pause” to some who may be looking to ban books. But she is quick to acknowledge the work that lies ahead.
“We can talk about legislation, we can talk about court cases, but ultimately this is a conversation that’s happening at the local school and library board level,” Caldwell=Stone says. “So it remains imperative that anyone who cares about the freedom to read engage with their school and library boards, show up to support their librarians, and make sure that elected officials know that this vocal minority looking to ban books doesn’t represent the vast majority of their community.”
