The first subscription library in Philadelphia, by Charles E. Mills http://hdl.loc.gov/loc.pnp/det.4a26449
The Utah Book Ban
Just last week I was telling a friend—a retired librarian and published author—what she ought to read next. Obviously, I know what’s best for her.
Or, at the very least, I knew the person, and I knew the content of the book.
You’d assume that’s how it works when we must carry out the mission of education: be familiar with the material and adaptable to the audience.
That, unfortunately, is not the case with the Book Removal Law in Utah, a law that is now the focus of a lawsuit. Last Tuesday, a group of authors and high school students filed a lawsuit against defendants who are charged with enforcing the Book Removal Law in Utah.
The plaintiffs’ complaint makes the persuasive First Amendment argument that the Utah Book Removal Law creates an overbroad “Per Se Ban” that requires removal of books from public school libraries based on a single description of sex regardless of a work’s overall merit or context. Although the statute initially gestures toward a holistic inquiry—exempting material that, “when taken as a whole, has serious value for minors”—it immediately abandons that standard, declaring “however, a description or depiction of illicit sex or sexual immorality has no serious value for minors.” (Utah Code Ann. § 76-5c-207(5))
As the plaintiffs describe the reason they are making a facial challenge of the law: “once a book contains even a fleeting reference to sexual conduct, it must be stripped from every shelf, including the high school library.”
Classic titles such as Slaughterhouse-Five, What Girls Are Made Of and The Perks of Being a Wallflower are now being labeled “obscene,” “indecent” and “pornographic” by this law and are being systematically removed from Utah high schools.
The student plaintiffs make an additional argument that they have a right to access information under the First Amendment. One of the affected student-plaintiffs states in the complaint that she wishes to read the banned books to better understand others’ pain and trauma as she prepares for a career in medicine. The student-plaintiffs also state they wish to read these books without being stigmatized as reading “obscene,” “indecent” or “pornographic” materials in school. The matter is especially troubling when we consider how a school library may be the only access to books for students unable to afford to purchase a collection of their own.
It’s unfortunately not just the students who fear the stigma imposed by law. PEN America’s research shows that when schools decide to remove books from their libraries, very few decisions are based on what the law actually requires, instead, almost all of the decisions to ban books came from “fear or simply a desire to avoid topics that might be deemed controversial,” a problem of “obeying in advance” based on their perception of the broad reach of book ban laws.
There is no virtue in delegating book selection to a poorly drafted state law when educators and librarians who know their students—and the books in question—have reliably made such decisions in the past.
What’s Protected under the First Amendment
In the US, government is constrained by the Constitution from discriminating or suppressing speech. Public school students have well-established First Amendment rights. The Supreme Court held in 1969 in Tinker v. Des Moines Independent Community School District that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In Erznoznik v. City of Jacksonville, the Court clarified:
Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. In most circumstances, the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors.
In a later plurality opinion, Island Trees Union Free Sch. Dist. No. 26 v. Pico, the Court further stated that students have a First Amendment “right to receive information and ideas,” and such rights “may be directly and sharply implicated by the removal of books from the shelves of a school library.” Though some have pointed out that the dissent in Pico objected to the plurality’s position on the First Amendment “right to receive information,” the Supreme Court has previously noted in Stanley v. Georgia (1969) that “It is now well established that the Constitution protects the right to receive information and ideas.”
Furthermore, the government can only lawfully restrict the flow of information to minors under certain circumstances; any law that substantially inhibits protected speech could be challenged as overbroad. In Miller v. California, the Supreme Court set out what later became known as the three-prong “Miller test” for determining what qualifies as “obscenity” that may be lawfully suppressed by government:
(a) whether the average person would find that the work, taken as a whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Utah Code § 76-5c-101(7)(a) has modified the Miller test to apply to minors:
“Harmful to minors” means that quality of any description or representation, in whatsoever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when it:
(i) taken as a whole, appeals to the prurient interest in sex of minors;
(ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(iii)taken as a whole, does not have serious value for minors.
Both Utah law and Miller require that a work must be evaluated “as a whole” before it can be deemed obscene and suppressed by government. That requirement ensures that protected speech is not swept away based on extremely isolated passages taken out of context. The Utah Book Removal Law abandons this important safeguard by mandating removal whenever a book contains a single prohibited reference, without regard to the work’s overall literary or educational value to the readers. Because of this, the Book Removal Law is now being challenged by the plaintiffs as overbroad under the First Amendment.
A Possible Defense: Government Speech
One unresolved question in recent book-ban litigation is whether the removal of books constitutes “government speech.” Two Circuit Courts recently reached diverging results applying the same government speech doctrine in the context of library books. In GLBT Youth in Iowa Schools Task Force v. Reynolds, the 8th Circuit Court found that the public would not “view the placement and removal of books in public school libraries as the government speaking” (8th Cir. 2024), whereas in Little v. Llano Country, the 5th Circuit Court emphatically rejected its sister circuit’s view and pronounced that “the government speaks through its selection of which books to put on the shelves and which books to exclude” (5th Cir. 2025).
Whether book removals at a public school library constitutes government speech is an important issue because recent cases have firmly established that government speech is immune from First Amendment scrutiny. First Amendment rights constrain the government from suppressing speech, but they do not compel the government itself to undertake certain speech. Under the government speech doctrine, the government retains significant leeway in how it acts as a speaker.
For example, the government can choose what statue to erect in a public park: it is not a violation of the First Amendment for a government to refuse a Seven Aphorisms monument in favor of a Ten Commandments monument (Pleasant Grove City v. Summum). But on the other hand, if a city allows people to erect all kinds of flags at the City Hall for many years, and only chooses to ban one particular flag, that is not protected government speech (Shurtleff v. Boston). The idea behind this distinction is simple—a reasonable observer would understand public park statues to represent a deliberate choice by the government, whereas when all kinds of private flags are allowed for years at a City Hall, a reasonable observer would not assume every flag represented the views of the government—in such a case, when expressions are not perceived to originate from the government, the government speech doctrine does not shield the government from First Amendment scrutiny.
In Shurtleff v. Boston (2022), the Supreme Court formulated a “holistic inquiry” for determining whether the government is speaking for itself or regulating private expression, asking: (1) the history of the expression at issue; (2) the public’s likely perception as to who is speaking; and (3) the extent to which the government has actively shaped or controlled the expression.
Is removing books from public school libraries protected government speech? (A question posed ten years ago as a rhetorical device to test the limits of government speech appears to be asked in earnest today: “Could a city library choose to have only books by Republican authors by saying that it is the government speaking?”)
Applying the Shurtleff test, the 8th Circuit Court in Reynolds answered no, while the 5th Circuit Court in Little answered yes. One critical distinction helps explain why the courts so readily reached disparate holdings: In Reynolds, the book removals were compelled by state law; in Little, the removals resulted from a library’s own discretionary decisions about its collection. While librarians have long exercised professional judgment in selecting and weeding materials pursuant to advisory guidelines, there is no historical tradition in this country where the government and their elected officials remove books from public libraries based on their moral qualms with the books’ content.
Setting aside any moral qualms one might have about “book bans” writ large, it makes far more sense to defer to librarians’ individualized, professional judgment—particularly where the process is transparent and appealable—than to a statute that per se bans books for students (who are, curiously, old enough under Utah law to have sex at 16 but not old enough to read about it).
At the end of the day, government speech as a defense is a double edged sword. On the one hand, if public libraries’ curation decisions can be challenged in court as First Amendment violations, we risk giving censorship power to those willing to threaten lawsuits against libraries. On the other hand, treating book ban laws as protected government speech can lead to censored library shelves just as easily. This is further compounded by a practical concern: if schools and libraries do not follow the preferences of those in power, can they count on continued funding?
Towards A Reasonable Solution
Scholars have written about what we can do to ensure that books continue to be available to public school students. Professor Catherine Ross observes:
Citizens should not have to rely on the ballot box, as the dissenters in Pico recommended, to vindicate the liberty that the Speech Clause guarantees. In Barnette, Justice Jackson reminded us that “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.
… Potential plaintiffs who oppose targeted book removals may choose to fight on multiple complementary fronts: by litigating, by loudly objecting at their children’s school, and by challenging the school board in meetings or at the next election. … Concerned citizens who oppose targeted bans can also lobby for new laws that would protect books from targeted attacks.”
Lawmakers are now experimenting with ways to keep books on library shelves, honoring both community input and librarians’ professional judgment as they attempt to protect librarians from harassment as well as stop government censorship. These efforts include bills that make it harder for school boards to remove books, prohibit harassment of librarians, require transparent processes of book removal, as well as laws that explicitly ban book bans.
There are solutions that do not depend on state legislatures as well. Libraries are uniting to declare themselves Book Sanctuaries. Specifically serving teens nationwide, Books Unbanned provides free digital access to a variety of collections including those books frequently targeted by book removal laws.
It remains to be seen what role different circuit courts will choose to play in protecting students’ First Amendment right to free speech.
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