The U.S. Supreme Court has declined to hear a case about the Llano County library’s removal of explicit books, preserving a Fifth Circuit Court of Appeals ruling that upheld the library’s action.
Llano County had been sued for removing 17 books from the county library due to their treatment of racial and sexual themes. All of the books were tailored to children.
A similar case out of Colorado is pending before the Tenth Circuit Court of Appeals, which has a more liberal makeup. Should the court rule in favor of plaintiffs, this could create a circuit court split, making the Supreme Court likely to decide the issue on the merits.
Background
As previously reported, patrons of the Llano County Public Library sued the librarian and other custodians in a federal district court, alleging a First Amendment violation after the library removed 17 books found to contain harmful content.
The issue before the court was whether someone may challenge a public library’s removal of books as a violation of the Free Speech Clause of the First Amendment.
The district court ruled that the library abridged the plaintiffs’ “right to receive information” under the Free Speech Clause and ordered the books to be returned to the shelves. On appeal in May, the U.S. Fifth Circuit Court of Appeals reversed the district court’s ruling and dismissed plaintiffs’ free speech claims.
The majority opinion—authored by Judge Stuart Kyle Duncan—stated that although Supreme Court precedent sometimes protects one’s right to receive someone else’s speech, “plaintiffs would transform that precedent into a brave new right to receive information from the government in the form of taxpayer-funded library books.”
Judge Duncan said the First Amendment acknowledges no such right.
Supreme Court Appeal
Plaintiffs appealed this decision to the U.S. Supreme Court, where they filed a petition for a writ of certiorari asking the Court to review the Fifth Circuit ruling and decide whether Llano County’s book-removal decisions are subject to scrutiny under the Free Speech Clause of the First Amendment.
Penguin Random House and other publishers filed an amici curiae brief arguing that the Fifth Circuit decision threatens their First Amendment rights, and that it legitimizes the removal of valuable books they have published. Penguin Random House is a plaintiff in a similar case before the Eleventh Circuit Court of Appeals.
Multiple other outside parties filed amicus/amici briefs to inform the court in making its decision, including Foundation for Individual Rights and Expression (FIRE), Louisiana Citizens Against Censorship, and The National Coalition Against Censorship.
Llano County’s attorney, Jonathan Mitchell, filed a brief in opposition to the writ. He argued that this is not the proper case for the Supreme Court to consider the issue on the merits.
Mitchell pointed out that there are multiple appeals pending in the “Eighth, Tenth, and Eleventh Circuits in which the plaintiffs are challenging the constitutionality of library-book removals—and in which the defendants are arguing that the Speech Clause is categorically inapplicable to library book-removal decisions.”
“The Court should wait and allow these courts to weigh in on whether and how the Speech Clause applies to library-book removals before jumping in to resolve this issue,” wrote Mitchell.
On December 8, the Supreme Court declined to hear the case, upholding the Fifth Circuit decision.
What Happens Next
Because the Supreme Court did not take up the case, the Fifth Circuit decision only establishes precedent for its jurisdiction, covering Texas, Louisiana, and Mississippi. No national precedent on the matter has been established.
This could all change if a similar case in the Tenth Circuit Court of Appeals is decided in favor of those opposing a book removal by Elizabeth School District in Colorado—which is also represented by Jonathan Mitchell. Due to the court’s more liberal makeup, such a decision is expected, which would cause a “circuit split.”
When two or more circuit courts reach diverging conclusions, it creates unequal applications of federal law in different jurisdictions. The Tenth Circuit’s ruling would establish precedent for Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
Circuit splits are often settled by U.S. Supreme Court intervention—making it likely that the Supreme Court would take up the Elizabeth School District case on appeal, deciding for the entire nation whether publicly funded libraries are allowed to remove books deemed to contain explicit content.
In accordance with Mitchell’s reasoning, the Supreme Court may wait until the Eighth, Tenth, and Eleventh Circuit cases are decided before intervening.
Bonnie Wallace, vice chair of the Llano County Library Advisory Board, told Texas Scorecard, “I was praying for SCOTUS to hear our case so they could issue a nationwide ruling in favor of Llano County. But essentially, by not agreeing to hear our case, SCOTUS agrees with the 5th Circuit ruling. Agrees that library curation is government speech and exempt from first amendment scrutiny!”
“This will not fix all but is a step toward stopping the sexualization of children in libraries,” added Wallace.
“It is a victory without a doubt,” she continued. “The 5th circuit ruling was cited over 20 times in a recent ruling in an Escambia County library case in Florida where the district judge threw out the case and stating the school board had the right to do so because of the Llano County ruling. The ripple effect of this ruling will be far and wide. Praise God!”
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