Amicus Curiae Brief — Leila Green Little, et al., Petitioners v. Llano County, Texas, et al.

Supreme Court briefOct 14, 2025

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No. 25-284

In the Supreme Court of the United States

LEILA GREEN LITTLE, ET AL.,

Petitioners,

LLANO COUNTY, TEXAS, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

BRIEF OF THE NATIONAL COALITION AGAINST

CENSORSHIP AND STEVEN PICO AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

LEE ROWLAND

ERIKA SANDERS

NATIONAL COALITION

AGAINST CENSORSHIP

29 Broadway, #1401

New York, NY 10006

October 14, 2025

PETER B. STEFFENSEN

Counsel of Record

SMU DEDMAN SCHOOL OF LAW

FIRST AMENDMENT CLINIC

P.O. Box 750116

Dallas, Texas 75275-0116

(214) 768–4077

psteffensen@smu.edu

Counsel for Amici Curiae

(additional counsel listed on inside cover)

THOMAS S. LEATHERBURY

LAW, PLLC

Cumberland Hill School

Building

1901 N. Akard St.

Dallas, TX 75201

TABLE OF CONTENTS

Page(s)

TABLE OF CONTENTS.............................................. i

TABLE OF AUTHORITIES ..................................... iii

INTERESTS OF AMICI CURIAE ............................. 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 5

II.

THE RIGHT TO RECEIVE INFORMATION IS

WELL ESTABLISHED UNDER THE FIRST

AMENDMENT ................................................... 5

The right to receive information and ideas

has an extensive history in this Court’s

jurisprudence, dating back over eight

decades ........................................................ 5

The right to receive information and ideas

applies to public libraries ........................... 9

DENYING ACCESS TO A PUBLIC BENEFIT ON

THE BASIS OF VIEWPOINT IS FATAL IN FIRST

AMENDMENT ANALYSIS ............................. 11

III. THIS COURT SHOULD RATIFY PICO AS

AN ESTABLISHED AND ADMINISTRABLE

DOCTRINE IN LIBRARY FIRST AMENDMENT

CLAIMS ............................................................ 16

Pico provides the appropriate test for

evaluating right to receive claims in library

book removal cases ................................... 16

The

Pico

standard

judicially

administrable............................................ 18

Little is an outlier in holding viewpoint

discrimination to be an unworkable

analysis in the library context ................. 21

CONCLUSION ......................................................... 23

TABLE OF AUTHORITIES

Cases

Page(s)

ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd.,

557 F.3d 1177 (11th Cir. 2009) ..................... 19, 20

Armstrong v. Dist. of Columbia Pub. Libr.,

154 F. Supp. 2d 67 (D.D.C. 2001)........................ 10

Board of Education v. Pico, 457 U.S. 853 (1982) .......

4-11, 16-23

Bolger v. Youngs Drug Products Corp.,

463 U.S. 60 (1983) ............................................... 12

Burnside v. Byars,

363 F.2d 744 (5th Cir. 1966) ................................. 9

Campbell v. St. Tammany Parish Sch. Bd.,

64 F.3d 184 (5th Cir. 1995) ................. 8, 19, 22, 23

Case v. Unified Sch. Dist. No. 233, Johnson

Cnty., Kan.,

895 F. Supp. 1463 (D. Kan. 1995) ....................... 19

Case v. Unified School Dist. No. 233, Johnson

County, Kansas,

908 F. Supp. 864 (D. Kan. 1995) ........................... 8

Chiras v. Miller,

432 F.3d 606 (5th Cir. 2005) ............................... 17

City Council v. Taxpayers for Vincent,

466 U.S. 789 (1984) ............................................. 11

Counts v. Cedarville Sch. Dist.,

295 F. Supp. 2d 996 (W.D. Ark. 2003) ................ 20

Crookshanks as next friend of C.C. v. Elizabeth

Sch. Dist.,

775 F. Supp. 3d 1160 (D. Colo. 2025) .................. 20

iii

England v. Jackson Cnty. Pub. Libr.,

596 F. Supp. 3d 1164 ........................................... 11

GLBT Youth in Iowa Schs. Task Force v. Reynolds,

114 F.4th 660 (8th Cir. 2024) .......................... 8, 19

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001) ............................................... 12

Griswold v. Connecticut,

381 U.S. 479 (1965) ............................................. 10

Heaney v. Roberts,

846 F.3d 795 (5th Cir. 2017) ............................... 19

Hill v. Colorado,

530 U.S. 703 (2000) ............................................. 11

Iancu v. Brunetti,

588 U.S. 388 (2019) ......................................... 5, 14

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967) ............................................... 4

Kreimer v. Bureau of Police for Town of

Morristown,

958 F.2d 1242 (3d Cir. 1992) ............................... 10

Lamont v. Postmaster General,

381 U.S. 301 (1965) ............................................... 6

Legal Services Corp. v. Velazquez,

531 U.S. 533 (2001) ............................................. 15

Mainstream Loudoun v. Bd. of Trs. of the

Loudoun Cnty. Libr.,

2 F. Supp. 2d 783 (E.D. Va. 1998) ..................19-20

Martin v. City of Struthers,

319 U.S. 141 (1943) ............................................... 5

Matal v. Tam,

582 U.S. 218 (2017) ............................. 8, 12, 14, 15

Neinast v. Bd. of Trs. of Columbus Metro. Libr.,

346 F.3d 585 (6th Cir. 2003) ............................... 10

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ............................................. 10

Papish v. Bd. of Curators of Univ. of Mo.,

410 U.S. 667 (1973) ............................................. 14

Parents, Fams. & Friends of Lesbians & Gays,

Inc. v. Camdenton R-III Sch. Dist.,

853 F. Supp. 2d 888 (W.D. Mo. 2012) ................. 20

PEN Am. Ctr., Inc. v. Escambia Cnty. Sch. Bd.,

711 F. Supp. 3d 1325 (N.D. Fla. 2024)................ 20

Penguin Random House LLC v. Robbins,

774 F. Supp. 3d 1001 (S.D. Iowa 2025) ........... 9, 20

Pleasant Grove City v. Summum, 5

55 U.S. 460 (2009) ................................................. 8

Pratt v. Indep. Sch. Dist. No. 831, Forest Lake,

Minn.,

670 F.2d 771 (8th Cir. 1982) ............................... 18

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ............................................. 12

Rankin v. McPherson,

483 U.S. 378 (1987) ....................................... 14, 16

Red Lion Broad. Co. v. FCC,

395 U.S. 367 (1969) ............................................... 6

Rosenberger v. Rectors and Visitors of the Univ.

of Va.,

515 U.S. 819 (1995) ....................................... 11, 12

Sorrell v. IMS Health, Inc.,

564 U.S. 552 (2011) ............................................. 12

Stanley v. Georgia,

394 U.S. 557 (1969) ............................... 5, 6, 10, 11

Students for Fair Admissions, Inc. v. President

& Fellows of Harvard Coll.,

600 U.S. 181 (2023) ............................................. 13

Sund v. City of Wichita Falls, Tex.,

121 F. Supp. 2d 530 (N.D. Tex. 2000) ........... 20, 22

Texas v. Johnson,

491 U.S. 397 (1989) ....................................... 11, 12

Tinker v. Des Moines Sch. Dist.,

393 U.S. 503 (1969) ......................................... 9, 18

United States v. Am. Libr. Assn., Inc.,

539 U.S. 194 (2003) ............................................. 18

Constitutional Provision

First Amendment...................................................... 5

Other Authorities

Library Bill of Rights,

Am. Libr. Ass’n (first adopted June 19, 1939, by

the ALA Council), https://www.ala.org/advocacy/

intfreedom/librarybill (last visited Oct. 10, 2025) ... 15

PEN America Index of School Book Bans –

2023–2024, PEN America (2025), https://pen.

org/book-bans/pen-america-index-of-school-bookbans-2023-2024/ ..................................................... 3

Recording of Oral Argument,

Little v. Llano Cnty., Tex., No. 23-50224

(5th Cir. Sept. 24, 2024) (en banc),

https://www.ca5.uscourts.gov/OralArgRecordings/

23/23-50224_9-24-2024.mp3 (last accessed

Oct. 12, 2025) ......................................................... 2

Youth Censorship Database,

Nat. Coal. Against Censorship (2025),

https://ncac.org/youth-censorship-database ......... 3

vii

INTERESTS OF AMICI CURIAE 1

The National Coalition Against Censorship

(NCAC) is an alliance of more than 60 national nonprofit literary, artistic, religious, educational,

professional, labor, and civil liberties groups. The

NCAC’s mission is to protect freedom of thought,

inquiry, and expression and to oppose censorship in

all its forms. NCAC engages in direct advocacy and

education to support free expression rights of authors,

readers, publishers, booksellers, teachers, librarians,

artists, students, and others. NCAC is dedicated to

defending robust First Amendment protections of the

public’s access to art, literature, and culture. The

positions advocated in this brief do not necessarily

reflect the views of NCAC’s member organizations.

Steven Pico is a prominent American advocate

for the constitutionally protected right of academic

freedom. In 1978, at age 19, Mr. Pico served on the

Board of Trustees at Island Trees Public Library and,

in 1979, was elected as a New York State delegate to

the First White House Conference on Libraries. Mr.

Pico was the 1982 recipient of the Immroth Award

from the Intellectual Freedom Round Table of the

American

Library

Association

“for

strong

commitment and defense of the principles of

intellectual freedom and the freedom to read,” and in

1 Counsel for amici curiae certify, pursuant to Rule 37.6, that this

brief was not authored in whole or part by counsel for any of the

parties; no party or party’s counsel contributed money for the

brief; and no one other than amici and their counsel have

contributed money for this brief. Counsel for amici provided

notice to counsel of record on September 30, 2025, pursuant to S.

Ct. R. 37.2.

2023 Pico was honored by the New Press, a non-profit

publisher, “for a lifetime of fighting against

censorship.” Prior recipients include Toni Morrison

and Alice Walker. Drawing on his Quaker faith, Mr.

Pico has lectured on freedom of expression and nonviolent activism for more than four decades, including

at the Columbia University School of Library Service,

and is presently a Visiting Lecturer at Augustana

College in Illinois. As a plaintiff, Steven Pico initiated

the critically important book banning case Board of

Education, Island Trees v. Pico, adjudicated by the

U.S. Supreme Court in 1982.

SUMMARY OF ARGUMENT

Since their inception, libraries have stood as

places of individual learning and independent inquiry,

representing the seminal institution where

Americans exercise their right to receive information

and ideas. If left uncorrected, the en banc Fifth

Circuit’s holding that the right to receive does not

apply to the removal of disfavored viewpoints from a

public library would enable the government to convert

libraries into “silos of partisanship.” Recording of Oral

Argument at 7:26, Little v. Llano Cnty., Tex., No. 2350224 (5th Cir. Sept. 24, 2024) (en banc). 2

Over the past few years, federal, state, and

local governments have increasingly targeted books

for removal from library shelves because of

disagreement with the viewpoints they espouse. In

2024 alone, NCAC recorded numerous instances

2 https://www.ca5.uscourts.gov/OralArgRecordings/23/23-

50224_9-24-2024.mp3 (last accessed Oct. 12, 2025).

across the country in which book challenges or

removals were based on the works’ discussion of

LGBTQ and racial justice issues. 3 When the

government acts to control library collections based on

political viewpoint rather than the trained judgment

of library professionals, it undermines the very

purpose of the library—to provide the public with

access to a wide breadth of information, including

differing opinions and perspectives. That is precisely

what happened in Llano County, Texas, where public

library and county officials directed the removal of 17

books because of their depictions of race, sexuality,

and other “inappropriate” material. Pet. App. 70a-79a

(Higginson, J., dissenting).

This Court has repeatedly recognized that the

First Amendment encompasses the right to receive

information and ideas. Nowhere is that right more

salient than in libraries, the beating heart of the socalled marketplace of ideas. In holding that “plaintiffs

cannot invoke the right to receive information to

challenge the library’s removal of the challenged

books,” the en banc Fifth Circuit all but eviscerated

this well-established right and eliminated the ability

for library patrons in three states to bring

constitutional claims against book removals. Pet. App.

20a. Left standing, this ruling would bless the

government’s denial of access to a variety of

3 See Youth Censorship Database, Nat. Coal. Against Censorship

(2025),

https://ncac.org/youth-censorship-database.

PEN

America tracks book banning within schools and found 10,046

instances of individual books banned during the 2023–2024

school year. PEN America Index of School Book Bans – 2023–

2024, PEN America (2025), https://pen.org/book-bans/penamerica-index-of-school-book-bans-2023-2024/.

literature, including award-winning books such as In

the Night Kitchen by Maurice Sendak, It’s Perfectly

Normal by Robie H. Harris, and Caste by Isabel

Wilkerson, recipient of the Pulitzer Prize for

Literature. Just as the First Amendment “does not

tolerate laws that cast a pall of orthodoxy over the

classroom,” nor should it permit such a perversion of

the library. Keyishian v. Bd. of Regents, 385 U.S. 589,

603 (1967).

In Board of Education v. Pico, the central case

on school library book removals, a majority of this

Court agreed that a school library’s removal of books

based on viewpoint discrimination may violate the

First Amendment. See 457 U.S. 853, 871 (1982)

(plurality opinion); id. at 878 (Blackmun, J.,

concurring in part and concurring in the judgment);

id. at 907 (Rehnquist, J., joined by Justices Burger

and Powell, dissenting). For four decades, lower

courts—including the Fifth Circuit—have followed

Pico in evaluating the removal of books from publicly

funded libraries.

The en banc Fifth Circuit’s decision in Little v.

Llano County is a radical departure from the core

tenets of Pico. The court claims that Pico creates an

unworkable standard that requires judges to engage

in the supposedly impossible task of discerning the

intent of government officials in removing books. See

Pet. App. 21a–23a. Forty years of federal courts’

successful application of Pico say otherwise—as do

numerous areas of First Amendment doctrine that

require courts to glean intent. The Fifth Circuit’s

decision would deprive patrons of their First

Amendment right to receive information and ideas

from public libraries. This Court should grant

certiorari to clarify that Pico provides the correct

standard for viewpoint-based book removals and to

reaffirm the principle that government suppression of

ideas is the third rail of the First Amendment. See

Iancu v. Brunetti, 588 U.S. 388, 399 (2019) (Alito, J.,

concurring) (“Viewpoint discrimination is poison to a

free society.”).

ARGUMENT

I. THE RIGHT TO RECEIVE INFORMATION IS

WELL ESTABLISHED UNDER THE FIRST

AMENDMENT

A. The right to receive information and ideas

has an extensive history in this Court’s

jurisprudence, dating back over eight

decades.

The plain text of the First Amendment

prohibits the government from making any law

“abridging the freedom of speech,” U.S. Const. amend.

I. This Court has long recognized that this restriction

creates an inherent right to receive information and

ideas. Stanley v. Georgia, 394 U.S. 557, 564 (1969)

(noting the right was already “well established”). The

Court recognized this right over eighty years ago,

encapsulating the understanding of the drafters of the

First Amendment that the right was necessary “if

vigorous enlightenment was ever to triumph over

slothful ignorance.” Martin v. City of Struthers, 319

U.S. 141, 143 (1943).

Consequently, “the right of the public to receive

suitable access to social, political, esthetic, moral, and

other ideas and experiences” is “crucial.” Red Lion

Broad. Co. v. FCC, 395 U.S. 367, 390, 392 (1969)

(upholding regulations imposed on broadcasters

requiring that discussion of public issues include

equal coverage of each side because of the interest in

creating an “informed public capable of conducting its

own affairs”). That right does not depend on the idea’s

perceived value; the “right to receive information and

ideas, regardless of their social worth … is

fundamental to our free society.” Stanley, 394 U.S. at

564 (citation omitted). But “the dissemination of ideas

can accomplish nothing if otherwise willing

addressees are not free to receive and consider them

… [for] [i]t would be a barren marketplace of ideas

that had only sellers and no buyers.” Lamont v.

Postmaster General, 381 U.S. 301, 308 (1965)

(Brennan, J., concurring). Speech is meant to be

heard, to be wrestled with, and to challenge and break

down our beliefs so that we can in turn build them

back stronger.

For over forty years, the right to receive has

guided

lower

courts

evaluating

the

constitutionality of book removals from libraries. See

Pico, 457 U.S. 853, 872 (1982) (plurality opinion). In

Pico, a local school board removed books from school

libraries that they considered “anti-American, antiChristian, anti-Sem[i]tic, and just plain filthy.” Id. at

857. While a majority of Justices in Pico agreed that

the school board’s actions could pose a First

Amendment violation, the Court disagreed on how

precisely to “reconcile the schools’ ‘inculcative’

function with the First Amendment’s bar on

‘prescriptions of orthodoxy.’” Id. at 879 (Blackmun, J.,

concurring in part and concurring in the judgment).

Nonetheless, a majority of Justices—including those

in dissent—agreed that the First Amendment

includes within it the right to access information and

ideas from a public library. The debate lay not in

whether the right exists, but in its scope.

Justice Brennan wrote for the plurality that

“the right to receive ideas is a necessary predicate to

the recipient’s meaningful exercise of his own rights of

speech, press, and political freedom,” and “students

too are beneficiaries of this principle.” Id. at 867–68

(emphasis

original).

Justice

Blackmun’s

concurrence declined to “suggest that the State has

any affirmative obligation to provide students with

information or ideas,” but made no contention that the

right to receive does not apply to a public library. Id.

at 878 (Blackmun, J., concurring in part and

concurring in the judgment). Without reaching the

issue of the applicability of the right to receive in

schools, Justice Blackmun agreed with the plurality

that “[t]he State may not act to deny access to an idea

simply because state officials disapprove of that idea

for partisan or political reasons.” Id. at 879. Justice

Rehnquist’s dissent similarly questioned the presence

of a right to receive information in school settings

without protesting the right generally. Id. at 910

(Rehnquist, J., dissenting); see also id. at 915

(distinguishing between “university or public

libraries,” and “elementary and secondary school

libraries”).

In sum, this Court’s plurality held that when

books are removed from the shelves of a school library

because of disagreement with the viewpoints they

express, the government infringes upon the First

Amendment rights of students. Lower courts have

followed suit. Pico, 457 U.S. at 867–68; see Case v.

Unified School Dist. No. 233, Johnson County,

Kansas, 908 F. Supp. 864, 874 (D. Kan. 1995) (“The

constitutional right to challenge the removal of a book

from a school library appears to be held by the student

who is denied access to the book”); see also Campbell

v. St. Tammany Parish Sch. Bd., 64 F.3d 184, 190 (5th

Cir. 1995) (“[T]he key inquiry in a book removal case

is the school officials’ substantial motivation in

arriving at the removal decision”). When the

government controls the availability of knowledge by

picking and choosing among favored viewpoints,

people deprived of the opportunity to receive the

information or ideas have standing to challenge that

interference with ideas under the First Amendment. 4

4 The case law on the right to receive largely involves government

interference with access to private speech. In contrast, the

government-speech doctrine applies when the government itself

chooses to speak, in which case the Free Speech Clause of the

First Amendment does not apply. Pleasant Grove City v.

Summum, 555 U.S. 460, 467 (2009). As the Eighth Circuit

explained in declining to apply the government-speech doctrine

to library curation, placing books on a library shelf would merely

indicate that “the State ‘is babbling prodigiously and

incoherently.’” GLBT Youth in Iowa Schs. Task Force v.

Reynolds, 114 F.4th 660, 668 (8th Cir. 2024) (quoting Matal v.

Tam, 582 U.S. 218, 236). This Court has cautioned that the

government-speech doctrine “is susceptible to dangerous misuse”

that risks permitting the government to “silence or muffle the

expression of disfavored viewpoints”—a concern that has acutely

manifested in the removals challenged in this very case. Matal,

582 U.S. at 235. The purpose of a public library is for the

government to provide a forum for private speakers to

disseminate their speech to listeners. It is for this reason that

challenges to library book removals are situated squarely within

the realm of the First Amendment right to receive, rather than

See Penguin Random House LLC v. Robbins, 774 F.

Supp. 3d 1001, 1014 (S.D. Iowa 2025) (student

plaintiff had standing to challenge a law “directly

limit[ing] the books and materials she can obtain from

the school library,” which in turn “blocks [her] access

to new ideas and viewpoints, as well as information

about history, politics, and science”) (internal

quotations omitted).

B. The right to receive information and ideas

applies to public libraries.

A plurality in Pico found that this right applies

in the context of school libraries, even as First

Amendment analysis is often modified for the

curricular setting. Pico, 457 U.S. at 868 (“But the

special characteristics of the school library make that

environment

especially

appropriate

for

the

recognition of the First Amendment rights of

students”) (emphasis in original); see, e.g., Tinker v.

Des Moines Sch. Dist., 393 U.S. 503, 509 (1969)

(quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.

1966) (asking whether “the forbidden conduct would

‘materially and substantially interfere with the

requirements of appropriate discipline in the

operation of the school’”)). From that standpoint, Pico

is even more clearly the appropriate standard for a

public library—an institution unconstrained by the

special considerations of the school environment, and

whose existence epitomizes the First Amendment’s

purpose of protecting and facilitating the free

impervious to constitutional challenge under the inapplicable

government-speech doctrine.

exchange of ideas. See New York Times Co. v.

Sullivan, 376 U.S. 254, 270 (1964) (noting our

“profound national commitment to the principle that

debate on public issues should be uninhibited, robust,

and wide-open”). It is for that reason this Court has

emphasized that “the State may not, consistently with

the spirit of the First Amendment, contract the

spectrum of available knowledge.” Griswold v.

Connecticut, 381 U.S. 479, 482 (1965).

In the decades since Pico, federal courts have

applied the right to receive information in the context

of both school and public libraries. In Kreimer v.

Bureau of Police for Town of Morristown, the Third

Circuit upheld a First Amendment challenge to public

library rules forbidding patrons from engaging in

behavior purportedly disturbing to other visitors. 958

F.2d 1242, 1262–65 (3d Cir. 1992). The court

acknowledged that although “Pico signifies that,

consistent with other First Amendment principles,

the right to receive information is not unfettered and

may give way to significant countervailing interests,”

the right nonetheless “includes the right to some level

of access to a public library, the quintessential locus

of the receipt of information.” Id. at 1255. Other

federal courts have similarly agreed that the right to

receive is especially strong in the context of public

libraries. See, e.g., Neinast v. Bd. of Trs. of Columbus

Metro. Libr., 346 F.3d 585, 591 (6th Cir. 2003) (stating

that “the First Amendment protects the right to

receive information,” including public library access)

(citing Stanley, 394 U.S. at 564; Kreimer, 958 F.2d at

1255); Armstrong v. Dist. of Columbia Pub. Libr., 154

F. Supp. 2d 67, 75 (D.D.C. 2001) (acknowledging the

“long-standing precedent supporting plaintiff’s First

Amendment right to receive information and ideas,

and this right’s nexus with access to public libraries”);

England v. Jackson Cnty. Pub. Libr., 596 F. Supp. 3d

1164, 1173–74 (declaring that “there is no question”

that “the right to receive information through

continued use of the [public] [l]ibrary” is “protected

under the First Amendment”) (citing Stanley, 394

U.S. at 564; Pico, 457 U.S. at 867; Hill v. Colorado,

530 U.S. 703, 728 (2000)). Public libraries embody our

commitment to the First Amendment’s ideal of selfgovernance and free inquiry; if the right to receive

information applies in any locale, it must protect the

right of library patrons to seek knowledge without the

interference of the government.

II. DENYING ACCESS TO A PUBLIC BENEFIT

ON THE BASIS OF VIEWPOINT IS FATAL IN

FIRST AMENDMENT ANALYSIS

The right to receive is violated, as is any other

right in the First Amendment canon, when the

government picks and chooses based on the viewpoint

of private speakers. “If there is a bedrock principle

underlying the First Amendment, it is that the

government may not prohibit the expression of an

idea simply because society finds the idea itself

offensive or disagreeable.” Texas v. Johnson, 491 U.S.

397, 414 (1989). To that end, “viewpoint

discrimination is … an egregious form of content

discrimination” and when it occurs, “the violation of

the First Amendment is all the more blatant.”

Rosenberger v. Rectors and Visitors of the Univ. of Va.,

515 U.S. 819, 829 (1995); see also City Council v.

Taxpayers for Vincent, 466 U.S. 789, 804 (1984)

(“There are some purported interests—such as a

desire to suppress support for a minority party or an

unpopular cause, or to exclude the expression of

certain points of view from the marketplace of ideas—

that are so plainly illegitimate that they would

immediately invalidate the rule”); Bolger v. Youngs

Drug Products Corp., 463 U.S. 60, 84 (1983) (Stevens,

J., concurring) (“Governmental suppression of a

specific point of view strikes at the core of First

Amendment values”).

This principle has been consistently reaffirmed

in nearly every area of the Court’s First Amendment

jurisprudence. See, e.g., Sorrell v. IMS Health, Inc.,

564 U.S. 552, 564 (2011) (applying strict scrutiny to a

law that “on its face burdens disfavored speech by

disfavored speakers”); Rosenberger, 515 U.S. at 827–

31 (1995) (prohibiting viewpoint discrimination in

funding of student newspapers); R.A.V. v. City of St.

Paul, 505 U.S. 377, 393–96 (1992) (prohibiting

viewpoint discrimination in enforcement of city

ordinance banning symbolic hate speech); Johnson,

491 U.S. at 420 (1989) (invalidating conviction for flag

desecration for targeting disfavored viewpoint). This

includes cases where the government is offering a

discretionary program or benefit. See, e.g., Matal v.

Tam, 582 U.S. 218, 243–44 (2017) (prohibiting

viewpoint discrimination in federal trademark

registration); Good News Club v. Milford Cent. Sch.,

533 U.S. 98, 102 (2001) (prohibiting viewpoint

discrimination in granting access to limited public

forum).

This case is no different. Nowhere in the

Constitution is it written that the government must

establish or fund libraries, school or public; doing so is

an act of discretion. But once the government chooses

to do so, the First Amendment’s prohibition on

viewpoint discrimination remains in full effect. The

Court’s treatment of student admissions, public

employment, and government grant programs is

illustrative. In each of those contexts, as with public

libraries, the government seeks to perform a

specialized function within its discretionary power,

such as providing education, employment, or public

benefits. Trained professionals in these areas exercise

judgment to ensure the institution achieves its

objective. Student admissions officers identify

applicants who will likely contribute to a robust

educational environment; hiring managers select

employees who they believe will fulfill their job duties

and advance the employer’s mission; and grant

administrators allocate funds to individuals and

entities most qualified to serve the government’s

objective. In none of these contexts, however, has this

Court ever held that the discretion afforded to the

government to accomplish its aims then permits it to

engage in viewpoint discrimination. To the contrary,

each of these doctrines rigidly protects against

government censorship of disfavored views or

speakers.

In the student admissions context, for example,

universities may consider an applicant’s individual

life experiences or viewpoints to cultivate a diverse

student body, just as public librarians consider the

merits of a book when cultivating a diverse collection.

See Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll., 600 U.S. 181, 230–31 (2023)

(emphasizing that public universities may still

consider an applicant’s individual attributes to

cultivate diversity on campus). But once a university

admits an applicant, it may not then expel that

student for a disfavored opinion. See Papish v. Bd. of

Curators of Univ. of Mo., 410 U.S. 667, 670–71 (1973)

(prohibiting expulsion of a graduate student based on

school’s disapproval of news content the student

distributed).

Public employment jurisprudence is also

instructive because, as with libraries, it involves the

government’s conferral of a benefit: employment. This

Court has made clear that once the government has

provided that benefit, it may not then withdraw it for

viewpoint-discriminatory reasons. See Rankin v.

McPherson, 483 U.S. 378, 380–84 (1987) (prohibiting

dismissal of public employee for offensive speech). As

the Court said in Rankin, an employee cannot be fired

“for exercising her constitutional right to freedom of

expression,” even if the employee could otherwise

have been fired “for any reason or no reason at all.” Id.

at 383–84. Just as the government may not hire

someone based on his skill set and then proceed to fire

him for, say, voting for a certain political party, nor

may the government shelve a book because of its value

and then later remove it due to disagreement with its

point of view.

Government grant jurisprudence also supports

the conclusion that the First Amendment does not

tolerate viewpoint discrimination in book removal

decisions. See Matal, 582 U.S. at 223; see also Iancu,

588 U.S. at 390. In Matal v. Tam, for example, the

Court held that a provision of the Lanham Act barring

federal registration of disparaging trademarks

amounted to viewpoint discrimination and reaffirmed

that “[s]peech may not be banned on the ground that

it expresses ideas that offend.” 582 U.S. at 223.

Because application of the disparagement clause

reflected the government’s “disapproval of a subset of

messages it finds offensive,” the Court struck it down.

Id. at 247–49 (Kennedy, J., concurring). Likewise, in

Legal Services Corp. v. Velazquez, this Court held that

the First Amendment does not “permit Congress to

define the scope of the litigation it funds to exclude

certain vital theories and ideas.” 531 U.S. 533, 548

(2001). As with the government funding program at

issue in Velazquez, libraries are “designed to facilitate

private speech, not to promote a governmental

message.” Id. at 542.

Librarians are professionally trained to

advance the purpose of a library—“provid[ing]

materials and information presenting all points of

view on current and historical issues.” Library Bill of

Rights, Am. Libr. Ass’n (first adopted June 19, 1939,

by the ALA Council). 5 Just as the government may

make viewpoint-based judgments when considering

the merits of an applicant in student admissions,

employment, or grant funding, librarians may

consider the merits of a book when working to achieve

a library’s purpose of providing access to a diverse

array of ideas. However, once a book has been shelved,

the Constitution does not permit its removal because

of naked disapproval of its views, in the same way it

forbids the expulsion of a student, cancellation of a

grant, or termination of an employee for such reasons.

This is true even if the book could be removed for other

5 https://www.ala.org/advocacy/intfreedom/librarybill

(last visited Oct. 10, 2025).

reasons, such as physical damage or outdated

material. See, e.g., Rankin, 483 U.S. at 383–84. Thus,

when evidence shows that the government removed a

book from library shelves because of disapproval of its

perspective, as the district court found in this case, the

book removal amounts to unconstitutional viewpoint

discrimination. See Pet. App. 220a–227a.

As First Amendment jurisprudence amply

demonstrates, the government’s discretion in offering

a fund, a benefit, or a program does not give license

for officials to engage in viewpoint discrimination to

later deny or limit access to those public goods. Nor

should this Court deviate from this rule in the context

of public libraries, where our cultural commitment to

open inquiry should be at its zenith.

III. THIS COURT SHOULD RATIFY PICO AS

AN ESTABLISHED AND ADMINISTRABLE

DOCTRINE

LIBRARY

FIRST

AMENDMENT CLAIMS

A. Pico provides the appropriate test for

evaluating right to receive claims in

library book removal cases.

Once the government chooses to operate a

library and selects which books to shelve, it may not

then engage in viewpoint discrimination by singling

out books which it disfavors for removal. This is the

crux of Pico—that removal of a book from a school

library because of the viewpoint it expresses is subject

to First Amendment scrutiny—which was embraced

by a majority of this Court and has flourished in the

lower courts.

In Pico, a four-justice plurality concluded that

while schools retain broad discretion to curate their

own libraries, the removal of books for the purpose of

suppressing ideas violates the First Amendment. Id.

at 872. Justice Rehnquist, joined by Justices Burger

and Powell, “cheerfully concede[d]” that the school

library could not remove books “in a narrowly

partisan or political manner.” Id. at 907 (Rehnquist,

J., dissenting). Justice White, whose vote provided the

narrowest basis for a majority, determined it was

necessary to remand the case for further factfinding

regarding the school board’s motivation in removing

the books, tacitly indicating his agreement that

viewpoint-based book removal decisions would violate

the First Amendment. Pico, 457 U.S. at 883 (White,

J., concurring).

The en banc Fifth Circuit nonetheless held

that Pico has “no precedential weight” in this case

because the opinions there were “highly fractured.”

Pet. App. 17a (citing Chiras v. Miller, 432 F.3d 606,

619 n.32 (5th Cir. 2005)). That oversimplifies the

source of the disagreement among the Justices and

ignores the key areas of Pico that garnered agreement

from a majority. For one, the Pico Justices were

divided over a public school’s obligation to provide

students with certain information or ideas. But out of

that disagreement, eight of the Justices nonetheless

agreed that a public school still could not remove

books simply because it dislikes the ideas those books

expressed. Pico, 457 U.S. at 872 (Brennan, J., joined

by Justices Marshall, Stevens, and Blackmun,

plurality opinion); id. at 883 (White, J., concurring);

id. at 907 (Rehnquist, J., joined by Justices Burger

and Powell, dissenting) (1982). The vast majority of

the Court therefore endorsed the core tenet that

viewpoint discrimination is unconstitutional, even in

a school library setting. Id.

Pico applies to public libraries with “even

greater force.” Pet. App. 108a (Higginson, J.,

dissenting). To fulfill their “traditional mission” as a

forum for “learning and cultural enrichment,” both

school and public libraries must have discretion to

curate their collections, United States v. Am. Libr.

Assn., Inc., 539 U.S. 194, 195 (2003), and must provide

access to a multitude of opinions and viewpoints in

order to facilitate “freewheeling inquiry.” Pico, 457

U.S. at 915 (Rehnquist, J., dissenting) (recognizing

this imperative in the context of “university or public

libraries”). Pico’s admonition against viewpoint

discrimination in book removal decisions is thus a

vital safeguard against the possibility that these

public institutions could be turned into “enclaves of

totalitarianism.” Tinker, 393 U.S. at 511.

B. The

Pico

standard

administrable.

judicially

Since Pico was decided forty-three years ago,

the lower courts have applied it with little

difficulty. 6 Those courts—including the Fifth Circuit

before overruling itself—have assessed the intent

6 Even before Pico, courts settled on a similar standard. In Pratt,

the Eighth Circuit noted that “courts have generally concluded

that a cognizable First Amendment claim exists if the book was

excluded to suppress an ideological or religious viewpoint with

which the local authorities disagreed.” Pratt v. Indep. Sch. Dist.

No. 831, Forest Lake, Minn., 670 F.2d 771, 776 (8th Cir. 1982).

behind removal decisions and managed to determine

whether or not they were motivated by hostility to a

book’s viewpoint. See Campbell, 64 F.3d 184; ACLU of

Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177

(11th Cir. 2009); see also GLBT Youth in Iowa Schs.

Task Force, 114 F.4th at 669–70.

Pico acts as a simple check on the government’s

power to administer a public library in ways at odds

with its very purpose. A rule prohibiting viewpoint

discrimination in book removal decisions would

hardly constitute a unique burden on public officials—

who must abide by that prohibition in almost every

other area of government administration. Nor would

that rule burden courts, contrary to the en banc

majority’s claim that rooting out viewpoint

discriminatory intent “would tie courts in endless

knots.” Pet. App. 23a.

It certainly didn’t tie the district court here in

knots. See Pet. App. 220a–227a. Nor did it trip up the

court in Campbell. 7 Nor has it confused the many

other courts to address these issues since Pico. See,

e.g., Case v. Unified Sch. Dist. No. 233, Johnson Cnty.,

Kan., 895 F. Supp. 1463, 1469 (D. Kan. 1995);

Mainstream Loudoun v. Bd. of Trs. of the Loudoun

Though that court could not find, on a summary judgment

motion, that public officials had removed books because of their

viewpoint, the court did what all courts are obligated to do under

the circumstances—remand for a jury to make its own

determinations on viewpoint animus. Campbell, 64 F.3d at 190;

see Heaney v. Roberts, 846 F.3d 795, 802 (5th Cir. 2017). This

underscores another reason why a Pico-like intent rule would

have limited impact on the courts—as the ultimate question of

official motivation is a question for the trier of fact. Id.

Cnty. Libr., 2 F. Supp. 2d 783, 792–96 (E.D. Va. 1998);

Sund v. City of Wichita Falls, Tex., 121 F. Supp. 2d

530, 548 (N.D. Tex. 2000); Counts v. Cedarville Sch.

Dist., 295 F. Supp. 2d 996, 1004 (W.D. Ark. 2003);

Parents, Fams. & Friends of Lesbians & Gays, Inc. v.

Camdenton R-III Sch. Dist., 853 F. Supp. 2d 888, 900–

01 (W.D. Mo. 2012); PEN Am. Ctr., Inc. v. Escambia

Cnty. Sch. Bd., 711 F. Supp. 3d 1325, 1331 (N.D. Fla.

2024); Crookshanks as next friend of C.C. v. Elizabeth

Sch. Dist., 775 F. Supp. 3d 1160, 1179–85 (D. Colo.

2025); Penguin Random House, 774 F. Supp. 3d at

1032–35.

For example, in ACLU of Florida, Inc. v.

Miami-Dade County School Board, the Eleventh

Circuit applied Pico to determine whether the school

board removed a book about Cuba because it was

“factually inaccurate,” or because they had “a desire

to promote political orthodoxy.” 557 F.3d at 1221,

1227. Because the Eleventh Circuit held that the

removal decision was motivated by “a preference in

favor of factual accuracy,” the court concluded the

school board did not violate the First Amendment in

removing the book. Id. at 1222. It was undisputed that

the book in question, which was considered “nonfiction,” contained factual inaccuracies. Id. at 1207.

The Eleventh Circuit determined that regardless of

one’s political stance or opinions on the Cuban

government, the book misrepresented daily life in

Cuba. Id. at 1221. Thus, the school, which required

non-fiction books to be “correct, recent, and objective,”

had an ostensibly legitimate reason to remove it. Id.

The Eleventh Circuit’s analysis demonstrates

that it is entirely possible and reasonable for a court

to interrogate the intent behind the removal—and

that a removal decision may in fact survive the kind

of constitutional scrutiny that a limited rule like Pico

would impose. Applying that rule, libraries still

maintain wide discretion to remove books for all sorts

of reasons—including, as the Eleventh Circuit held,

for factual inaccuracy. The principle at the heart of

Pico is simple: curation is allowed; censorship is not.

C. Little is an outlier in holding viewpoint

discrimination to be an unworkable

analysis in the library context.

The en banc majority in Little rejected

wholesale the right to receive information and ideas

in the library context. But the embrace of this right by

Pico and its progeny indicates that it is, in fact,

entirely administrable. See Pet. App. 20a–23a. The en

banc majority held that Llano County Public Library

patrons “cannot invoke a right to receive information

to challenge a library’s removal of books,” even when

the removal is a result of viewpoint discrimination.

Pet. App. 2a. See id. at 26a (“By definition, libraries

must have discretion to keep certain ideas—certain

viewpoints—off the shelves.”). It reasoned that

allowing such a claim would “transform” this Court’s

right to receive precedent “into a brave new right to

receive information from the government in the form

of taxpayer-funded library books.” Pet. App. 2a–3a.

But, as previously discussed, the Petitioners do not

assert a positive right to demand what books are

housed on public library shelves. Rather, they merely

argue that the government cannot interfere with the

exchange of speech between private speakers and

listeners based on viewpoint once it has already

provided a forum to access that speech.

The Fifth Circuit itself embraced the Pico

plurality decision long before the en banc majority

reversed course this past spring in Little. See

Campbell, 64 F.3d at 190. Applying Pico in Sund v.

City of Wichita Falls, Tex., the District Court for the

Northern District of Texas permanently enjoined the

City Council of Wichita Falls from enforcing a

resolution removing certain books from the children’s

section of the library and placing them in the adult

section. 121 F. Supp. 2d at 532. In so doing, the court

acknowledged that “[t]he right to receive information

is vigorously enforced in the context of a public

library.” Id. at 547. Logically following the

applicability of that right, “[t]he principles set forth in

Pico—a school library case—have even greater force

when applied to public libraries.” Id. at 548. The court

cited Campbell, among other cases, in its explanations

of both the applicability of the right to receive and the

standard set by Pico. See id. at 547–48.

The en banc Fifth Circuit’s rejection of Pico and

Campbell also precluded more fulsome consideration

of the extensive evidentiary record of the district court

below. The district court found that Plaintiffs were

entitled to a preliminary injunction because the

evidence showed that Defendants would otherwise

continue to limit or prohibit access to the books in

question. Pet. App. 230a. The en banc majority opines

about the unworkability of any standard that requires

the court to consider the government’s motivation in

its removal of books. See Pet. App. 23a. But as the

district court found, the brief period between the

receipt of complaints advocating removal and

relocation of a list of books labeled “pornographic

filth” and “CRT and LGBTQ books,” and their

subsequent removal from Llano County Public

Library shelves, “strongly suggests that the actions

were in response to each other.” Pet. App. 221a–223a.

Nothing in the preliminary injunction record suggests

that the district court struggled to parse the

government’s motivations. Overruling Campbell thus

enabled the en banc majority to skirt the ample

evidentiary record of viewpoint animus in order to

reach the outcome here: doing away with the Pico

standard.

CONCLUSION

Allowing the Fifth Circuit’s decision to stand

threatens to make public libraries a doctrinal

oxymoron—institutions with a proud historical

tradition of providing access to the widest possible

range of ideas would become one of the only areas

where the government could openly censor private

viewpoints. To allow viewpoint discrimination in a

library context is to undermine the very purpose of

libraries. This Court should grant the petition for

certiorari, vacate the decision below, and remand for

further proceedings consistent with the decision in

Pico.

Respectfully submitted,

LEE ROWLAND

ERIKA SANDERS

NATIONAL COALITION

AGAINST CENSORSHIP

29 Broadway, #1401

New York, NY 10006

THOMAS S.

LEATHERBURY

THOMAS S.

LEATHERBURY LAW,

PLLC

Cumberland Hill

School Building

1901 N. Akard St.

Dallas, TX 75201

PETER B. STEFFENSEN

Counsel of Record

SMU DEDMAN SCHOOL OF

LAW

FIRST AMENDMENT CLINIC

P.O Box 750116

Dallas, TX 75275-0116

(214) 768–4077

psteffensen@smu.edu

October 14, 2025

Counsel for Amici

Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.