This Case Could Determine the Future of US Book Bans

Only one library book ban case has ever been decided by the US Supreme Court: Board of Education, Island Trees Union Free School District No. 26 v. Pico (1982). In that case, the Island Trees school board in Nassau County, New York, removed nearly a dozen books from the high school and junior high libraries. A group of students led by senior Steven Pico sued the school, losing at trial but winning on appeal.

The Supreme Court ruled 5–4 that the books were improperly banned, but only three of those five justices thought that the First Amendment granted students a constitutional “right to read.” This lack of accord makes Pico a weak precedent. Indeed, lower courts have been ignoring it ever since.

Pico has not been revisited in over forty years. I fear it will be soon. Book ban cases have accelerated in recent years, with rulings that show little consistency. All it takes is one ultra-determined litigant to push through a test case, a Pico 2.0. 

That case may finally have arrived. On May 23, the Fifth Circuit Court of Appeals issued its ruling in Little v. Llano County, a case that began in 2021, when the public library in Llano County, Texas, removed from its shelves seventeen “obscene” and “pornographic” books. These included: 

• Maurice Sendak’s In the Night Kitchen (a book often banned because the main character, Mickey, appears in the nude), 
• Robie H. Harris and Michael Emberley’s It’s Perfectly Normal (a sex education book for preteens), and 
• Dawn McMillan’s I Broke My Butt! (“cheeky sequel to the international bestseller I Need a New Butt!”).

Take action today to support libraries!

Seven residents sued, claiming that the book removals were based on content and therefore violated their First Amendment rights. Leila Green Little, the lead plaintiff, was scathing in her condemnation: 

“Book banners today are merely standing on the weak, misguided shoulders of censors from the past, such as Bostonians who censored Walt Whitman’s Leaves of Grass and Mark Twain’s Adventures of Huckleberry Finn in the 1880s.”

The district court ruled in favor of the plaintiffs, and the book banners appealed to the Fifth Circuit. On June 6, 2024, a three-judge panel upheld the district court’s decision, ruling that governments cannot remove books from a public library to keep patrons from accessing certain ideas.

Yet this victory was short-lived, as less than a month later, the en banc court vacated the panel’s ruling and ordered a new hearing. (En banc, French for “on the bench,” means that all judges on a court re-hear a case after a panel’s decision. This is done when the court believes a case to be especially complex or important.)

At that hearing, Llano County’s attorney, Jonathan Mitchell, asserted that “library curation decisions are government speech” and therefore not bound by the First Amendment. Arguing directly against Pico, Mitchell said that failing to include a book in a library collection is “no different from a government that decides to withdraw or remove all handguns from a government-owned store.”

Sign the petition to show that Americans love their libraries!

This “government speech” argument has failed in other book banning cases. For instance, in an August 2024 case out of Iowa, the Eighth Circuit found it 

“doubtful that the public would view the placement and removal of books in public school libraries as the government speaking. . . . A well-appointed school library could include copies of Plato’s The Republic, Machiavelli’s The Prince, Thomas Hobbes’ Leviathan, Karl Marx and Freidrich Engels’ Das Kapital, Adolph Hitler’s Mein Kampf, and Alexis de Tocqueville’s Democracy in America. . . . [I]f placing these books on the shelf of public school libraries constitutes government speech, the State ‘is babbling prodigiously and incoherently.’”

Yet, on May 23, 2025, the Fifth Circuit upheld this doctrine in Little, overturning the district court’s ruling by a vote of 10–7. “Supreme Court precedent sometimes protects one’s right to receive someone else’s speech,” wrote Judge Stuart Kyle Duncan in the majority decision. “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.” Duncan didn’t have the power to overrule Pico, which was decided by a higher court, yet he certainly criticized the decision, calling it “splintered,” “highly fractured,” and “of no precedential value” vis-à-vis the First Amendment.

Bottom line: In Texas, Louisiana, and Mississippi, the states covered by the Fifth Circuit, libraries are now free to remove books for any reason.

The ruling was a setback but not the coup de grâce. On July 24, the plaintiffs asked the Supreme Court for more time to prepare their appeal, which the court granted. This does not mean the court will accept the appeal. Over 7,000 appeals are sent to the high court each year, and it hears only 100–150 — less than 2 percent. Yet I think Little v. Llano County has a good chance of making the docket.

Sign the petition to fight book bans!

For one thing, there is the Fifth/Eighth Circuit split, not to mention the Fifth Circuit’s en banc reversal of its own panel’s ruling. The case also contradicts President Trump’s Executive Order 14149, which forbids “federal officials from coercing or influencing content decisions in ways that violate the First Amendment.” (Yet it’s okay for a county government to do it?) These inconsistencies suggest the need for a stabilizing ruling from the high court. 

Second, this Supreme Court has been eager to revisit earlier precedents. In the last few years, it has curtailed abortion protections, ended Chevron deference, and canceled affirmative action in college admissions — all long-standing, seemingly bedrock principles. Why not target Pico, especially since it wasn’t a decisive ruling to begin with?

Third, unlike most book ban cases, Little pertains not to a school library but a public one. Public libraries are vastly different entities. They serve more people — an entire county rather than a school system — and they don’t have a specifically educational mission. 

Supporters of library book bans often say that people can just buy the book instead — Judge Duncan himself made that argument — but this ignores the economics of the situation. Llano County is small and rural. For its residents, a book being unavailable in a library is a de facto ban. Comments like Duncan’s show “an indifference to the lived reality of millions of Americans for whom public libraries are their only or primary means of access to books.”

Here’s hoping that, if Little or any other book ban case ends up before this Supreme Court, those nine justices will consider the issue thoughtfully, creatively, and most importantly, impartially.

Visit www.everylibrary.org to learn more about our work on behalf of libraries. 

#librarymarketers: Enjoy this story? Want to use it for your library newsletter, blog, or social media? This article is published under Creative Commons License Attribution-NonCommercial 4.0 International and is free to edit and use with attribution. Please cite EveryLibrary on medium.com/everylibrary.

This work by EveryLibrary is licensed under CC BY-NC 4.0