Comment by John C. Berner
Do libraries speak? Certainly the individual books in a library do. But, in its choice of books to maintain in its collection, is the library itself speaking? This is not an airy hypothetical. In August of 2024, eighteen state attorneys general filed a joint amicus brief to the United States Court of Appeals for the Fifth Circuit arguing that the curation of public library materials constituted government speech, thereby exempting the library from First Amendment scrutiny. In a brief of its own, the American Library Association characterized said argument as an attempt to “eliminate the First Amendment right to receive information” and give government officials “carte blanche” to “suppress[] . . . controversial or unpopular ideas.”
The dispute came out of Llano County, Texas. In 2021, a group of parents complained to the Llano County Commissioners Court—the municipal entity that supervises the county library system—about “pornographic and overtly sexual books in the library’s children’s section.” The Commissioners Court soon instructed the director of the library system to remove a series of titles from the library’s shelves, seventeen in all. These included seven so-called “butt and fart” books, six books concerned with sexuality and gender identity, two books about the history of race and racism in the United States, a picture book that included a drawing of a nude child, and a book on puberty and sexual health for preadolescents that included nude illustrations of both heterosexual and same-sex couples. Library patrons brought suit against the county, the Commissioners Court, and the library system’s director, alleging that they had removed the books because they sought to suppress access to the books’ content, thereby violating the First Amendment.
The United States District Court for the Western District of Texas issued a preliminary injunction mandating the return of the books, which a divided Fifth Circuit panel first upheld in modified form. The Fifth Circuit subsequently vacated that opinion and reheard it en banc. When the court eventually released its opinion, a divided en banc majority reversed the preliminary injunction and dismissed the patrons’ First Amendment claims. There is no First Amendment right to receive information in public libraries, the Fifth Circuit held. A plurality of the judges went further, concluding that the collection decisions of a public library are protected government speech.
The opinion presents a sea change in the relevant law. It overruled Fifth Circuit precedent and directly contradicts the United States Court of Appeals for the Eighth Circuit, which had ruled just a year prior that public school library collections decisions are not protected government speech. But the stark departure of the Little v. Llano County decision is merely a symptom of what First Amendment law scholar Catherine J. Ross has called the “inchoate and confusing” case law surrounding book removal. The last United States Supreme Court case to directly address the issue, dating from the early 1980s, was a fractured plurality opinion that left major constitutional scores unsettled. First Amendment doctrine has advanced considerably since then. In particular, the Supreme Court has introduced and developed the doctrine of protected government speech, under which a government speaker may discriminate on the basis of viewpoint without fear of First Amendment scrutiny. Contemporary book removal defendants have increasingly argued that library content curation is government speech, a defense which had, until Little v. Llano County, been poorly received. The factual dispute underlying Little v. Llano County is typical in contemporary book removal litigation and part of a larger, ongoing fight over access to controversial books across the United States. But the opinion in Little v. Llano County presents a novel encroachment of government speech doctrine and a perturbing retreat for the right to receive ideas.
Drawing on critiques from constitutional law scholars Jamal Greene and Mary Ann Glendon, this Comment frames government speech doctrine as an expanding legal trump that forecloses necessary debate on the merits of individual book removal actions and forgoes American courts’ duty of judicial review in the context of book removal. This Comment asserts, however, that the Supreme Court has already, in dicta, articulated a suitable standard of review for book removal cases, one that would recognize the values of government speech doctrine without threatening to eclipse the constitutionally protected right to receive ideas.
Part II recounts the relevant case law surrounding library book removal and government speech doctrine, culminating in an analysis of the current circuit split over whether library content curation constitutes government speech. Part III mounts two related but distinct critiques of government speech doctrine in the context of library book removals: first, that a recognition of library content curation as government speech engulfs other valid rights claims; second, that the current approach to government speech doctrine asks American courts to abandon their duty to perform judicial review over book removal actions. Part IV argues that a structured, proportionality-based standard of review would allay these concerns, and that the foundations of such a standard are already present in the Supreme Court’s case law. Part V concludes.
About the Author
John C. Berner, J.D. Candidate 2026, Tulane University Law School; B.S.M. 2023, M.A. 2019, B.A. 2018, Tulane University.
Citation
100 Tul. L. Rev. 169