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Brigham Young University Prelaw Review

Keywords

Government Speech Doctrine, book banning, school libraries, First Amendment

Abstract

Since 2021, the number of books removed from school libraries has risen dramatically. These removals have led to lawsuits and questions surrounding the control a state may exercise over the school library. In almost every current case, the government has argued these cases should be dismissed because of the government speech doctrine. A fairly recent creation, the government speech doctrine is the understanding that the government, in order to accomplish its purposes, may at times exercise viewpoint discrimination and regulate speech in ways that perhaps seem prohibited by the First Amendment. Evaluation in government speech cases has typically undergone a "holistic inquiry" that focuses on the "the history of the expression at issue," "the public's likely perception as to who (the government or a private person) is speaking," "and the extent to which the government has actively shaped or controlled the expression" (Shurtleff 2022). Although the government speech argument has thus far failed at court, district courts have not yet undertaken the inquiry to the depth that may be required in further cases. This Note argues that under all three lines of inquiry, the library should not be considered a government speech zone. The historical perception of the library as a realm for individual learning, the public's confused perception of whether concerned parents or the government cause book removals, and the new level of unprecedented control all sway the inquiry to our conclusion. This Note concludes that when this litigation likely reaches the Supreme Court, the Court should hold that the government speech doctrine does not apply, extending further consideration to the application of the doctrine.

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