"Books Were Harmed in the Making of This Opinion": Kyle Courtney on the Llano Decision

I’m not a lawyer and I don’t play one on the Internet. I did want to post something about the stupid—no, wait, that’s not right, for we might excuse stupidity for not knowing better but not mean politics masquerading as judicial opinion—majority decision by the Fifth Circuit Court of Appeals in Little v. Llano County but don’t have legal expertise. Fortunately, a lawyer has penned a far better takedown of this ill-informed and dangerous ruling than I could muster. I point you then, gentle reader, to Books Were Harmed in the Making of This Opinion: The Fifth Circuit Rebrands Censorship as "Collection Management" by Kyle Courtney. The piece is on Substack. While there, consider subscribing (it’s free, if you want). His work on law as it relates to libraries is always worth a read.

Here are a few highlights:

That’s right: the federal appeals court in charge of Texas, Louisiana, and Mississippi held that if your local government doesn’t want you reading Anne Frank's Diary, They Called Themselves the K.K.K., or a book called Butt and Fart — all real titles targeted in this case — you’re out of luck.

In doing so, the Fifth Circuit diverged sharply from other federal courts, teeing up a likely First Amendment showdown at the U.S. Supreme Court — assuming, of course, anyone there still thinks the First Amendment applies to libraries.

These weren’t pulled because of low circulation or outdated information — they were removed because a handful of county officials thought the ideas were too dangerous for public shelves. A lower court federal judge called it what it was: viewpoint discrimination and issued an injunction to undo the purge. A Fifth Circuit panel agreed, warning that the First Amendment doesn’t allow officials to treat libraries like ideological vending machines they can restock to taste.

The centerpiece of the Fifth Circuit majority’s ruling is its declaration that the First Amendment’s protection of free speech does not encompass a public library patron’s right to access information. Yes, the First Amendment famously protects authors and speakers – but does it protect the audience’s ability to receive what they say? For decades, courts have said YES: the Supreme Court noted in Stanley v. Georgia (1969) that the Constitution safeguards “the right to receive information and ideas.”

And in the landmark Board of Education v. Pico case, a plurality of U.S Supreme Court justices recognized that removing books from school libraries simply to suppress ideas violates the First Amendment’s core commands. The Fifth Circuit itself, in Campbell v. St. Tammany Parish School Board (5th Cir. 1995), adopted that same principle, holding that officials violate the Constitution if their “substantial motivation” for removing a library book is disagreement with its viewpoint.

None of that mattered to the ten majority judges in the Llano County majority: The majority dismissed the Pico plurality as “non-binding” and overruled the Fifth Circuit’s own precedent in Campbell as “mistaken.” (!!!)

Read on in Mr. Courtney’s piece to see his takedown of their legal “reasoning” of libraries as “government speech” and the dangerous implications of this decision.

Let’s call this decision what it is: judicial activism promoting a narrow-minded political ideology and a mean-souled Grundyism. It’s implications go beyond Louisiana, Mississippi, and Texas, though it is certain to shrink library collections there. If upheld in the Supreme Court, it would radically reshape how libraries operate, potentially undermine state freedom to read laws, and harm not books but readers. People would have to buy any books that local politicos didn’t like—an unhappy burden in a time of economic uncertainty, especially for parents. The views of a few would circumscribe the reading of many. As part of a larger attack on universities, on a multiplicity of viewpoints, on pluralistic democracy, this ruling makes perfect sense. In light of the First Amendment, and for all who value books, it makes no sense at all.