How a Single Court Case Could Determine the Future of Book Banning in America

Only one library book ban case has ever been decided by the U.S. Supreme Court: Board of Education, Island Trees Union Free School District No. 26 v. Pico (1982). In 1975, 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 the “right to read,” making a constitutional violation the crux of their argument. This lack of accord makes Pico a weak precedent. Indeed, lower level courts have been disagreeing with it ever since.

Pico has not been revisited in over 40 years. I fear it will soon. Book ban cases have ramped up in recent years, and judges are flying blind, continuing to make guidance-free rulings. All it takes is one ultra-determined litigant to push through a test case, a Pico 2.0. When that happens, will the Supreme Court unequivocally recognize a constitutional freedom to read? Or will it strike a blow for censorship?

Book ban cases have ramped up in recent years, and judges are flying blind, continuing to make guidance-free rulings.

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 a group of Llano County, Texas residents began agitating for certain books to be removed from the public library system—books they saw as “obscene” and “pornographic.” 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 pre-teens), and Dawn McMillan’s I Broke My Butt (“cheeky sequel to the international bestseller I Need a New Butt”). 

In total, seventeen books were removed. Library officials claimed this was done as part of the normal weeding process, though that doesn’t explain why the library board was dissolved and a new one created with the complainers as members that tried to close all the library branches. Seven residents sued, claiming that the book removals were based on content and therefore violated their First Amendment rights. (In Pico, the Supreme Court had ruled that the Island Trees school board “possess[ed] significant discretion to determine the content of their school libraries, but that discretion may not be exercised in a narrowly partisan or political manner.”) 

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. The ruling quoted “well-known free speech activist” Stephen King: “As a nation, we’ve been through too many fights to preserve our rights of free thought to let them go just because some prude with a highlighter doesn’t approve of them.” 

Yet the plaintiffs’ victory was short-lived, as less than a month later, the en banc court inexplicably vacated the panel’s ruling and ordered a new hearing, which took place on September 24. (“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 protected 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” and “no different from a governmental unit that decides to remove or cancel abortion services that were previously offered at a government-owned hospital.”

This “government speech” argument has failed in other book banning cases. Yet, on May 23, 2025, the Fifth Circuit upheld it 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.”

In its decision, the court considered one of its earlier decisions, Campbell v. St. Tammany Parish School Board (1995), in which a Louisiana school board removed the book Voodoo & Hoodoo by Jim Haskins from the parish school libraries. A group of parents sued the school board, claiming that it violated their children’s First Amendment rights. The district court awarded summary judgment–i.e., a win without a trial–in the parents’ favor, and the school board appealed. 

Overturning the district court in Campbell, the Fifth Circuit discussed Pico favorably, noting that it emphasized the “unique role of the school library,” that “students must always remain free to inquire, to study and to […] gain new maturity and understanding,” and that the library has always been “the principal locus of such freedom.” Ultimately, the court ruled that, “[e]ven though the constitutional analysis in the Pico plurality opinion does not constitute binding precedent, it may properly serve as guidance.” It ordered the case back down for a trial. Later, the parish settled the case by returning Voodoo & Hoodoo to the libraries–an incomplete victory for the plaintiffs, as the book was placed in a special reserve area. 

In Little, the Fifth Circuit overruled its thirty-year-old Campbell decision. “Yes,” wrote Duncan, “cases protect your right to receive information from other people, but none gives you the right to demand it from the government […] for good reason. People could tell libraries not only which books to keep but also which to buy. Courts would endlessly split hairs over a library’s motives for removing a book. And, most obvious, removing a library book does not deny anyone the chance to read it. […] People who want the book can buy it or borrow it from somewhere else.” The Fifth Circuit didn’t have the power to overrule Pico, which was decided by a higher court, yet it 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 free to remove books for any reason. 

Here’s hoping that…those nine justices will consider the issue thoughtfully, creatively, and most important, impartially.

The plaintiffs now face a choice: accept the Fifth Circuit’s ruling or appeal to the Supreme Court. If there is an appeal, the court may not accept it. Over 7,000 cases are appealed to the high court each year, and it hears only 100-150–less than two percent. Yet I think Little v. Llano County has a good chance of making the docket. 

For one thing, the Fifth Circuit’s en banc reversal of its own panel’s ruling suggests the need for the high court to step in. 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, according to UCLA professor Eugene Volokh, are not like school libraries. “I tentatively think a public school,” Volokh wrote, “is entitled to decide which viewpoints to promote through its own library,” whereas public libraries “are much more about giving more options to readers, rather than about teaching particular skills and attitudes to students.” 

Public libraries also serve more people–an entire county rather than a school system. Remember Judge Duncan’s belief that anyone who wants a certain book “can buy it or borrow it from somewhere else”? Llano County is small and rural, and many of its residents may not have the purchase option. For them, a book being unavailable in a library is a de facto ban. The pro-library organization EveryLibrary agrees, writing that the Fifth Circuit’s opinion “reveals 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 important, impartially.