When “Government Speech” Does Not Mean Your Local Government

We have written before about a legal argument gaining traction in book-ban litigation: the claim that decisions about which books appear in public school libraries constitute “government speech.” Under that theory, when a government chooses which books to include or remove, it is expressing its own message and therefore has broad authority to determine what that message will be. The government would not be required to account for the First Amendment rights of citizens in making those decisions, and, in principle, it could go so far as to dismantle the free marketplace of ideas within the collection altogether. 

We want to be clear that we are explaining this legal argument, not endorsing it. Courts remain divided over whether library collections should be treated as government speech at all. The Eighth Circuit has expressed serious doubts about the theory in the school-library context, while a 10-7 en blanc panel decision in the Fifth Circuit held in Little v. Llano County that public-library collection decisions are government speech. (Justia Law)

But there is another question advocates should be asking: If library collections are government speech, which government gets to speak? Because increasingly, it may not be yours.

Twenty-One States Are Making the Argument

That question is especially important in Penguin Random House v. Gibson, the lawsuit challenging portions of Florida's HB 1069. After U.S. District Judge Carlos Mendoza ruled in August 2025 that Florida could not require schools to remove books merely because they contain descriptions of sexual conduct, Florida appealed to the Eleventh Circuit.

In December, Arkansas led a coalition of 21 states filing an amicus brief supporting Florida's position. Those states are Arkansas, Alabama, Alaska, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.

Their argument is sweeping. The brief contends that the Free Speech Clause does not apply when states and their political subdivisions make editorial decisions about what public school libraries include or omit. It argues that even when parents participate in challenges, the government ultimately makes the decision about what remains on the shelf.

The brief goes further, arguing that controversy over library books has made it increasingly apparent that government officials are deciding which books are “worth adding and retaining” regardless of whether parents have a role in that process.

That last part deserves attention.

For years, censorship legislation has frequently been sold as a way to empower parents and preserve local control. Yet the government-speech argument does not require parents to control those decisions. It says the government does.

And in states such as Florida, Texas, Utah, Tennessee, and South Carolina, state governments have increasingly demonstrated that they are willing to override or constrain decisions made by local educators, librarians, review committees, school boards, and communities.

Local Control, Until the State Disagrees

South Carolina makes the shift particularly explicit. Its regulations state that selecting, acquiring, curating, and removing public school materials constitute government speech. They also give the State Board of Education authority to regulate those decisions, with local school boards required to implement the state's regulations. (South Carolina Legislature Online)

Texas has similarly increased state control through legislation regulating school-library materials, while Utah has created a system under which removal decisions in three districts can become a statewide mandate. Tennessee's state-level rules and laws have likewise placed increasingly restrictive requirements on local school collections.

Florida offers perhaps the clearest illustration of the tension.

The state's position in the HB 1069 litigation is that school districts and school boards are government entities making curation decisions. Yet Florida has simultaneously asserted authority to restrict what those local government entities may retain. The 21-state amicus brief supporting Florida describes HB 1069 as a law that “restricts how government entities (public school districts and school boards) make curation decisions.”

In other words, calling a library collection “government speech” does not necessarily mean your elected school board gets the final word. The state can claim authority over the speech of the local government. That distinction becomes especially troubling when the state declines responsibility for local removals it does not require, while reserving the ability to punish districts for retaining materials the state finds objectionable.

Under that framework, the state does not necessarily have an obligation to protect access when a local district removes protected material. But when a local community decides that a book should remain available, the state can intervene in the opposite direction. That is simply not local control.

Orange County Shows What This Looks Like

Consider what happened in Orange County, Florida.

During the 2024-25 school year, Last Night at the Telegraph Club by Malinda Lo and Homegoing by Yaa Gyasi went through Orange County Public Schools' established reconsideration process. Committees that included parents of impacted students reviewed the books and voted to retain them for high school students. Both decisions were appealed to the school board.

The board ultimately upheld the committee's decision to retain Last Night at the Telegraph Club. Homegoing had not yet reached a final board vote when state officials intervened.

At the Florida State Board of Education's June 4, 2025 meeting, state officials condemned a list of more than 50 titles as “pornographic.” Orange County subsequently removed 13 books from its collection that appeared on that list, including six books the district had previously reviewed and retained. (Florida Department of Education)

Among them were Last Night at the Telegraph Club and Homegoing.

Think about what happened there. The local process worked exactly as designed. Community members raised objections. Review committees evaluated the books in their entirety and debated the value they had for young people. Parents participated. A locally elected school board even voted to retain one of them. Then the state stepped in, and the district reversed course.

The story became even more striking two months later. In his August 2025 ruling, Judge Mendoza specifically identified both Last Night at the Telegraph Club and Homegoing among 23 books that were not obscene and whose removal demonstrated unconstitutional applications of Florida's law. (WUSF)

Yet both books remain unavailable in Orange County schools.

The district's own review process favored access. Parents serving on the committees favored access. The elected school board majority favored retaining Last Night at the Telegraph Club. A federal judge subsequently found that neither book was obscene. The state government's intervention still prevailed.

So Who Is the “Government” Speaking?

This is why the language in the Arkansas-led amicus brief deserves scrutiny. The states argue that treating library curation as government speech preserves decision-making for “democratically accountable state and local officials.” But state and local officials do not always agree.

What happens when voters elect a school board that wants Homegoing available to high school students, but state officials want it gone? What happens when a parent-inclusive review committee decides a book is appropriate, but an appointed state agency disagrees? What happens when librarians, principals, superintendents, parents, and elected board members all participate in a local process, only to have their decision overridden from above?

The phrase “government speech” can obscure those questions by treating the government as if it were a single speaker. It isn't. And the stakes grow considerably when we move from state governments to Washington.

The Federal Government Could Be Next

H.R. 7661, the Stop the Sexualization of Children Act, and its Senate counterpart, S. 4925, would take this logic nationwide. The proposals would restrict federal education funding connected to materials the federal government defines as “sexually oriented,” a definition that expressly encompasses material involving “gender dysphoria or transgenderism” but is written broadly enough to include brief descriptions of behaviors otherwise considered appropriate for a PG-13 movie. (CivicGate)

The bills contain an exception for “classic works of literature.” But Congress would not leave individual communities, librarians, teachers, parents, or school boards to decide what qualifies. Instead, the legislation defines classics using three predetermined sources: the 1990 second edition of Great Books of the Western World and two reading lists published by Compass Classroom, a Christian homeschool curriculum company. (The Authors Guild)

That means a locally elected school board could conclude that a book has significant literary value. A committee of parents and educators could agree. The school's librarian could determine that it belongs in the collection. A high school student looking to fulfill a college-level course requirement may have a legitimate need to access the book. None of that necessarily controls whether the book receives the federal legislation's protection. The federal government would have already decided which lists count.

This brings us back to a revealing statement in the states' amicus brief. Their argument explicitly says that allowing parents to object and participate in review processes does not change who ultimately controls the collection. “At the end of the day,” the brief argues, “it is the government making the ultimate curation decision.”

If H.R. 7661 and S. 4925 become law, that government could increasingly be the federal government.

Pay Attention to Who Gets the Final Say

For years, book restrictions have been defended with the language of parental rights, community standards, and local control. But we should examine whether the policies being enacted actually preserve any of those things.

When a parent-inclusive committee decides to retain a book but the state forces its removal, that is not parental control. When an elected school board's decision can be overridden by state officials, that is not meaningful local control. When Congress threatens federal education funding unless schools follow Washington's definition of acceptable material, that moves authority even further away from individual communities.

The government-speech theory is still being litigated, and we should not present it as settled law. The Eleventh Circuit's decision in the Florida case could have significant implications for how that doctrine applies to school libraries.

But whatever courts ultimately decide, advocates should start asking a more precise question whenever someone says library collections are “government speech.” Which government? Because the answer may determine whether your librarian, your review committee, your elected school board, or even the parents invited into the process actually have the final say over what students in your community are allowed to read.