I recently highlighted a good-news example of U.S. federal courts operating as democratic guardrails (namely, the Eleventh Circuit’s invalidation of Ron DeSantis’s Stop WOKE Act). Today I want to highlight a bad-news counterexample.
In particular, I want to describe two cases discussed in my forthcoming book, one from the 1980s and the other from last year. Together, they reveal significant erosion of First Amendment guardrails against suppression of dissent.
In Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico (1982), the U.S. Supreme Court heard a First Amendment challenge to a local school board’s decision to remove a number of controversial books from public school libraries. This was more than 40 years ago, but the case facts sound disturbingly familiar.
Several school board members from a Long Island school district attended a conference sponsored by an organization of conservative parents. They received a list of objectionable books at the conference, and upon returning home, discovered that eleven of the listed books were available in a school library in their district or included in the curriculum. The titles at issue included Kurt Vonnegut’s Slaughterhouse-Five, Richard Wright’s Black Boy, and Eldridge Cleaver’s Soul on Ice. Characterizing the books as “anti-American, anti-Christian, anti-Semitic, and just plain filthy,” the board ordered nine of them removed from school libraries and dropped from the curriculum.
Kurt Vonnegut, Slaughterhouse 5
Summarizing the facts, Justice William Brennan noted the following anecdote:
When asked to give an example of “anti-Americanism” in the removed books, petitioners Ahrens and Martin both adverted to A Hero Ain't Nothin' But A Sandwich, which notes at one point that George Washington was a slaveholder. See A. Childress, A Hero Ain't Nothin' But A Sandwich 43 (1973); Deposition of Petitioner Ahrens 89; Deposition of Petitioner Martin 20–22. Petitioner Martin stated: “I believe it is anti-American to present one of the nation's heroes, the first President, ... in such a negative and obviously one-sided light. That is one example of what I would consider anti-American.” Deposition of Petitioner Martin 22.
A number of students filed a First Amendment challenge. The trial court ruled on summary judgment in the school district’s favor, but the Court of Appeals reversed and remanded the case for trial, and the Supreme Court agreed.
Announcing the Court’s judgment in a plurality opinion, Justice Brennan emphasized that if the First Amendment imposes any limitations on the school board’s discretion to remove controversial library books, then the students were entitled to a trial on whether the board had exceeded those limits. (The issue of selecting books for the curriculum was by this point no longer live.) In Brennan’s view, the board’s assertion of “unfettered discretion to ‘transmit community values’ through the Island Trees schools” was inconsistent with the very nature and mission of a library. As a result, he held “that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and [quoting a famous passage from Justice Robert Jackson] seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’”
In dissent, Chief Justice Warren Burger emphasized the importance of judicial deference to local school boards on matters of educational policy. He agreed that students had First Amendment rights, but as he saw it:
No restraints of any kind are placed on the students [here]. They are free to read the books in question, which are available at public libraries and bookstores; they are free to discuss them in the classroom or elsewhere. Despite this absence of any direct external control on the students' ability to express themselves, the plurality suggests that there is a new First Amendment "entitlement" to have access to particular books in a school library.
Also dissenting, Justice Lewis Powell opened by indicating that he “view[ed] today's decision with genuine dismay.” Powell emphasized that the public schools are “the primary vehicle for transmitting the values on which our society rests.” He noted that “the destruction of written materials has [at times] been the symbol of despotism and intolerance,” but objected that “the removal of nine vulgar or racist books from a high school library by a concerned local school board does not raise this specter.” In support, he attached to his opinion an appendix quoting graphic sexually explicit passages from some of the books at issue, starting with Soul on Ice.
Eldridge Cleaver, Soul on Ice
Fast forward to the Trump era.
Last year, a sharply divided Fifth Circuit, sitting en banc (meaning the full court, rather than the typical 3-judge panel), rejected a challenge to the removal of seventeen books from a county library in Texas. The books at issue included young adult novels and memoirs involving sexual orientation or gender identity (including Jazz Jennings’s Being Jazz), nonfiction books that examined racism (including Isabel Wilkerson’s Caste), and books for young children that featured rude humor or drawings of nudity (including Maurice Sendak’s In the Night Kitchen).
Jazz Jennings, Being Jazz: My Life as a (Transgender) Teen
Writing for a ten-judge majority, Trump-appointed Fifth Circuit Judge Kyle Duncan held that library patrons may not challenge library book removals on the ground of the right to receive information. Relying principally on Burger’s dissenting opinion in Pico by Pico, Judge Duncan held that the government may not prevent a person from purchasing a particular book on their own, but nothing in the Constitution requires the government to provide that book to everyone who wants it. Here’s Duncan on Burger:
Chief Justice Burger's opinion was especially forceful. “[T]he right to receive information and ideas,” he wrote, “does not carry with it the concomitant right to have those ideas affirmatively provided at a particular place by the government.”
In a separate part of the opinion that was not joined by a majority, Duncan argued further that public library holdings are so-called government speech and hence not subject to First Amendment protection at all. This is the same doctrine that Florida’s lawyers invoked in the Stop WOKE Act litigation. The Supreme Court has held that when the government itself is speaking, it obviously can choose to say some things and not others (“Smoking is bad”). Florida’s lawyers argued unsuccessfully that everything a public university professor says in class is government speech and hence subject to government direction and control (“Slavery was good actually”). Judge Duncan argued, unsuccessfully but supported by seven of seventeen Fifth Circuit judges, that all public library holdings are government speech and hence subject to government direction and control. (No illustrations of children’s butts, discussions of racism, or depictions of trans people.)
In another recent book removal case from Iowa, the Eighth Circuit held that “it is doubtful that the public would view the placement and removal of books in public school libraries as the government speaking”; after all, the collected holdings of a typical library include a wide range of titles, some of them advancing views that contradict one another. But the Fifth Circuit plurality held that when assembling its library collections, “Llano County says, ‘These books are worth reading.’” The books themselves represent the authors’ speech, but on Judge Duncan’s account, their placement on library shelves represents the government’s speech. And hence is subject to government direction and control.
The Supreme Court declined to hear the Llano County case, which leaves it standing throughout Louisiana, Mississippi, and Texas, and federal district courts have relied on it even outside the Fifth Circuit. In September 2025, for example, the U.S. District Court for the Northern District of Florida cited the Llano County case when upholding a school library’s removal of a children’s picture book called And Tango Makes Three.
Richardson & Parnell, And Tango Makes Three
Having personally read this book aloud roughly a billion times, I can assure you that it includes zero discussions or depictions of sex. It does illustrate, as the plaintiff-authors argued, “that same-sex parents exist, that they can adopt and raise offspring, and have healthy and happy families.” That was apparently too much for the Escambia County School Board. The authors’ appeal remains pending in the Eleventh Circuit, but the trial judge, relying on the Texas case, insisted that “school library curation does not implicate any students’ or authors’ First Amendment rights at all.”
This holding, of course, is flatly inconsistent with Pico by Pico. As such, it represents a clear warning sign of eroding democratic guardrails. Autocratic governments worldwide have cracked down on the self-expression of relatively powerless minority groups (almost always including LGBT persons), and the failure of independent courts to push back is an alarm bell.
One final observation: The book removal holdings raise a number of issues that are relevant for colleges and universities. On campus, free expression principles generally represent longstanding institutional commitments, but sometimes raise cross-cutting tensions between the expression of individual scholars and students, on the one hand, and of their institutions, on the other. In the Fifth Circuit library case, Judge Duncan insisted that there is no reasonable distinction, for First Amendment purposes, between the government’s decision to remove books from library shelves and its decision not to purchase them in the first place. On Duncan’s account, the First Amendment does not limit either activity. But universities regularly invite speakers to campus, and while no individual has a right to such an invitation, it does not follow that disinviting a speaker, once scheduled, raises no First Amendment concerns.