A court decision that some say ‘forsakes core First Amendment principles’ alarms freedom-to-read backers.

By Porter Anderson, Editor-in-Chief | @Porter_Anderson

PEN’s Brinkley: ‘Immunizing State Censorship’

What once appeared as a victory to proponents of freedom of choice in reading now looks far less certain—and potentially on the way to the Supreme Court of the United States. Nevertheless, in the on-again, off-again progress of litigation and appeal in the United States, the news of the US Court of Appeals for the Fifth Circuit’s new decision in Little v Llano County holds less shock for some than it might have.

This is the case in which a group of 17 books were removed from shelves in Llano County, Texas, in 2022—apparently amid demands for more titles’ removal. Lawsuits filed against those removals succeed in 2024 in getting eight of the books replaced in the library by court order. Library authorities have reported that those eight titles are still in place.

The en banc Fifth Circuit appellate decision, filed on May 23, is not happy news to those patrons of the county library who “sued the librarian and other officials, alleging they removed the 17 books because of their treatment of racial and sexual themes. The district court ruled that defendants abridged [the] plaintiffs’ ‘right to receive information’ under the Free Speech Clause and ordered the books returned to the shelves. On appeal, a divided panel of our court affirmed in part. We granted en banc rehearing.'”

“We now reverse the preliminary injunction,” the court writes in its new decision, “and render judgment dismissing the Free Speech claims. We do so for two separate reasons.”

• Those reasons, as laid out in the new decision are, put simply: “Plaintiffs cannot invoke a right to receive information to challenge a library’s removal of books. Yes, Supreme Court precedent sometimes protects one’s right to receive someone else’s speech. But plaintiffs would transform that precedent into a brave new right to receive information from the government in the form of taxpayer-funded library books. The First Amendment acknowledges no such right.”
• And second, “A library’s collection decisions are government speech and therefore not subject to Free Speech challenge. Many precedents teach that someone engages in expressive activity by curating and presenting a collection of third-party speech. People do this all the time. Think of the editors of a poetry compilation choosing among poems, or a newspaper choosing which editorials to run, or a television station choosing which programs to air. So do governments. Think of a city museum selecting which paintings or sculptures to feature in an exhibit.”

Also noting what the judges call “over-caffeinated arguments made in this case,” the court this month has reversed the previous injunction and rendered judgment dismissing the plaintiffs’ free-speech claims.

Wagner: ‘A Culture-Wars Battle’

Because Publishing Perspectives is an international news medium—and the United States’ ongoing experience of so many court actions relative to book banning, censorship, and freedom-to-read issues—the point this particular suite of arguments has reached with the Fifth Circuit’s decision is not something we’ll put deep coverage into.

But we’ll give you a sense for the reactions from the books community and freedom-to-read side of these issues:

Always reliable for an eloquent expression of the going anti-censorship position, for example, Dan Novack, the First Amendment attorney who is an associate general counsel for Penguin Random House, aims at the court’s First Amendment expression treatment, saying, “On Thursday afternoon in Texas, every patron of libraries had First Amendment rights. On Friday afternoon, they lost them.”

At PEN America, Elly Brinkley, a staff attorney for US free expression programs, responds to the court’s reference to “government speech,” saying, “This astounding decision reveals either ignorance of the scale and danger of state censorship or deliberate indifference toward it.

“The record clearly shows that the government removed books based on politically-motivated viewpoint discrimination—a violation of constitutionally protected rights. The court’s embrace of the dangerous argument that the curation of library books constitutes ‘government speech’ immunizes state censorship from First Amendment scrutiny, essentially giving the government free rein to exert ideological control over what citizens can read in their public libraries.

“At a time when censorship is running rampant at both state and federal levels, this opinion arms the government with a powerful new and fallacious weapon to erode the free exchange of ideas, a foundation of our democracy. It must be overturned.”

Nathalie op de Beeck, writing at Publishers Weekly, points out that “Seven of the 10 judges” on the full bench “in the majority joined the opinion that ‘a library’s collection decisions are government speech and therefore not subject to Free Speech challenge.”

“In their estimation, ‘Libraries curate their collections for expressive purposes [and] their collection decisions are therefore government speech.’ Notably, the government speech argument has been dismissed in other courts of appeals, including the Eighth Circuit.”

And at the Austin American-Statesman in Texas, Bayliss Wagner catches the more localized surprise in the en banc decision, writing, “The stunning 10-7 decision strikes down a lower court ruling that ordered Llano County to temporarily return 17 books it had removed from public library shelves. …

“Seven dissenting judges called statements from the majority ‘disturbingly flippant’ and warned that the decision “forsakes core First Amendment principles” about the people’s right to be informed. …

“Friday’s decision also marks the next step in a national culture-wars battle over library materials that has rocked the country—and rural communities like Llano, a Texas Hill Country hamlet 75 miles northwest of Austin—since 2020.”

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More from Publishing Perspectives on book bannings is here, more on censorship more widely is here, more on the freedom of expression and the freedom to publish is here, and more on the United States’ book market is here.