S. Ct. Declines to Rehear Fifth Circuit’s Holding That Public Libraries May Select/Remove Books Based on Viewpoint

Here’s my summary of the May 23 majority en banc opinion by Judge Kyle Duncan in Little v. Llano County, which the Supreme Court just declined to review (you can also read more about the debate on the rights of listeners, Judge James Ho’s concurrence on positive vs. negative rights, and the uncertain state of Supreme Court precedent on the subject):

We consider whether someone may challenge a public library’s removal of books as violating the Free Speech Clause.

Patrons of a county library in Texas sued the librarian and other officials, alleging they removed 17 books because of their treatment of racial and sexual themes. The district court ruled that defendants abridged 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 and render judgment dismissing the Free Speech claims. We do so for two separate reasons.

First, 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.

That is a relief, because trying to apply it would be a nightmare. How would judges decide when removing a book is forbidden? No one in this case—not plaintiffs, nor the district court, nor the panel—can agree on a standard. May a library remove a book because it dislikes its ideas? Because it finds the book vulgar? Sexist? Inaccurate? Outdated? Poorly written? Heaven knows. The panel majority itself disagreed over whether half of the 17 books could be removed. For their part, plaintiffs took the baffling view that libraries cannot even remove books that espouse racism.

The only sensible course—and, happily, the one supported by reams of precedent—is to hold that the right to receive information does not apply here. A plaintiff may not invoke that right to challenge a library’s decisions about which books to buy, which books to keep, or which books to remove.

True, one of our decisions—Campbell v. St. Tammany Parish School Board (5th Cir. 1995)—suggested students could challenge the removal of a book from public school libraries. But Campbell was based on a mistaken reading of precedent and, since decided, has played no role in similar controversies in our circuit. We therefore overrule Campbell.

Here’s a separate point, which as I read it got only seven of the ten votes in the majority, with the remaining three judges—Chief Judge Jennifer Walker Elrod, Judge Catharina Haynes, and Judge Cory Wilson—thinking that the part labeled “First” sufficed to support the judgment:

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.

In the same way, a library expresses itself by deciding how to shape its collection. As one court put it: “With respect to the public library, the government speaks through its selection of which books to put on the shelves and which books to exclude.” People for the Ethical Treatment of Animals v. Gittens (D.C. Cir. 2005). What the library is saying is: “We think these books are worth reading.”

On this point, we note an error that bedeviled our sister circuit. See GLBT Youth in Iowa Schools Task Force v. Reynolds (8th Cir. 2024). Contrary to its view, a library does not speak through the words of the books themselves. “Those who check out a Tolstoy or Dickens novel would not suppose that they will be reading a government message.” The library is not babbling incoherently in the voices of Captain Ahab, Hester Prynne, Odysseus, Raskolnikov, and Ignatius J. Reilly. Rather, the library speaks by selecting some books over others and presenting that collection to the public—just as a museum does when it curates a collection of various schools of art. No one thinks the museum is contradicting itself by featuring both Rembrandt and Andy Warhol.

This conclusion gains strength when we consider the history of public libraries. From the moment they emerged in the mid-19th century, public libraries have shaped their collections to present what they held to be worthwhile literature. What is considered worthwhile, of course, evolves over the years. Public libraries used to exclude most novels, which were thought bad for morals. Today a library would not think of excluding Fifty Shades of Grey. But what has not changed is the fact, as true today as it was in 1850, that libraries curate their collections for expressive purposes. Their collection decisions are therefore government speech.

Finally, we note with amusement (and some dismay) the unusually over-caffeinated arguments made in this case. Judging from the rhetoric in the briefs, one would think Llano County had planned to stage a book burning in front of the library. Plaintiffs and amici warn of “book bans,” “pyres of burned books,” “totalitarian regimes,” and the “Index librorum prohibitorum.” One amicus intones: “Where they burn books, they will ultimately burn people.”

Take a deep breath, everyone. No one is banning (or burning) books. If a disappointed patron can’t find a book in the library, he can order it online, buy it from a bookstore, or borrow it from a friend. All Llano County has done here is what libraries have been doing for two centuries: decide which books they want in their collections. That is what it means to be a library—to make judgments about which books are worth reading and which are not, which ideas belong on the shelves and which do not.

If you doubt that, next time you visit the library ask the librarian to direct you to the Holocaust Denial Section.

And here’s an excerpt from the dissent, written by Judge Stephen Higginson:

The free exchange of ideas “lies at the foundation of free government by free men.” As Thomas Jefferson observed, “wherever the people are well informed they can be trusted with their own government.” {George Washington made the same point more starkly: “[T]he freedom of Speech may be taken away, and, dumb & silent we may be led, like sheep, to the Slaughter.”} Public libraries have long kept the people well informed by giving them access to works expressing a broad range of information and ideas. But this case concerns the politically motivated removal of books from the Llano County public library system by government officials in order to deny public access to disfavored ideas. In an effort to ratify this official abridgment of free speech, the majority overturns decades of settled First Amendment law, disparaging its free speech protections as a “nightmare” to apply.

Because the majority forsakes core First Amendment principles and controlling Supreme Court law, I dissent….

In sum, I would continue to respect the Supreme Court’s judgment in Pico, as we have for thirty years since Campbell, and would hold that the district court here did not clearly err in finding that Defendants’ substantial purpose likely was to suppress information and ideas deemed inappropriate or offensive. Thus far, the pre-trial evidence in the record overwhelmingly supports the district court’s preliminary conclusion that Director Milum, Judge Cunningham, and Commissioner Moss adopted the motivation of Wallace, Wells, Schneider, and Baskin (who thereafter joined the reconstituted and exclusionary Library Advisory Board), and therefore, that all Defendants were likely motivated by a desire to suppress fellow citizens’ access to the ideas contained in the seventeen books at issue. Consequently, applying the Pico–Campbell standard, we should neither confirm nor nullify a First Amendment violation, but rather entrust our district judge colleague to resolve facts at trial, informing us all, and especially the citizens and officials of Llano County.

More broadly, the logic of the Supreme Court’s school library decision in Pico—that the government may not remove library books with the purpose of denying access to disfavored ideas—applies with even greater force to public libraries, where the government has no inculcating role over its sovereign, the people. The First Amendment, with the high Court as its sentinel, protects the right of the people to be informed because, as the Framers knew, only an informed and engaged people can sustain self-governance. Public libraries represent the best of that simple but lofty goal. As spaces “designed for freewheeling inquiry,” they democratize access to a broad range of often-contradictory ideas and provide fertile ground for our minds to grow. More than anything, public libraries offer every one of us the tools to educate and entertain ourselves, to embrace or reject new ideas, and, above all, to engage and challenge our minds.

As I began this opinion with the words of one President, I will close with the words of another. In 1953, when our country was in the throes of McCarthyism, President Eisenhower addressed Dartmouth College’s graduating class:

Look at your country. Here is a country of which we are proud … But this country is a long way from perfection—a long way. We have the disgrace of racial discrimination, or we have prejudice against people because of their religion. We have crime on the docks. We have not had the courage to uproot these things, although we know they are wrong…

Don’t join the book burners. Don’t think you are going to conceal faults by concealing evidence that they ever existed. Don’t be afraid to go in your library and read every book, as long as that document does not offend our own ideas of decency…

How will we defeat communism unless we know what it is, and what it teaches, and why does it have such an appeal for men, why are so many people swearing allegiance to it? …

[W]e have got to fight it with something better, not try to conceal the thinking of our own people. They are part of America. And even if they think ideas that are contrary to ours, their right to say them, their right to record them, and their right to have them at places where they are accessible to others is unquestioned, or it isn’t America.

Because I would not have our court “join the book burners,” I dissent.