What the Tennessean Got Right: Why Library Boards Should Question the Secretary of State’s Order
On December 27, 2025, The Tennessean published an in-depth analysis of the Secretary of State’s directive ordering Tennessee libraries to conduct “age-appropriateness” audits in response to state law and President Trump’s executive order on “gender ideology.”
The reporting confirms what many library leaders and legal experts have already suspected.
There are serious constitutional and legal reasons to question the directive and to pause before treating it as binding law.
Let's begin with the foundation: the order that landed in the inboxes of Tennessee libraries was not actually grounded in Tennessee public library law. As the Tennessean story, the Tennessee Age Appropriate Materials Act of 2022 is directed specifically at public school libraries, not public libraries. Despite that fact, in October, the Secretary of State sent a letter to 181 public libraries instructing them to audit their juvenile collections in an attempt to comply with both this state law and a federal executive order on gender.
This situation creates tremendous confusion. What happens when a directive from the Secretary of State cites laws that do not apply to your institution? Library boards are not only justified in questioning the order, but they also have a responsibility to do so.
Next, it's important to understand the limits of executive orders. They do not, and cannot, govern local public libraries. The Tennessean quotes Lindsay Langholz, Senior Director of Policy and Program at the American Constitution Society, who explained that "There have been very important executive orders over time… But those have to do with things that the administration actually has power over, and this certainly is not one of them." She went on to say that “They [the SOS] can’t use an executive order to create new obligations tied to federal funding. At the end of the day, the executive order still has to be rooted in federal law, which resides with Congress, or any constitutional powers — none of which would be implicated here.” That is a critical point for library boards and staff who are concerned with the validity of the directive.
The EveryLibrary Institute also weighed in, warning that this directive sets a dangerous and unlawful precedent. In the same Tennessean story, the EveryLibrary Institute warned that “The Tennessee Secretary of State is making an unusual and opportunistic choice by subjecting Tennessee public libraries directly to Executive Order 14168. Secretary Hargett is setting a dangerous precedent by placing Tennessee’s state and municipal government under the authority of any Executive Order by any president.”
The Institute further explained that the Secretary’s suggestion that library funding could be impacted is not legally enforceable, because Congress mandates that funding under the Museum and Library Services Act, and that funding is protected by the First Amendment and anti-discrimination law. As the Institute stated in its analysis (as quoted in the Tennessean), "Federal law only provides for the suspension or termination of grants when agreements are broken or abrogated. Any spending done under the authority of the current grant agreement is safeguarded from discrimination in the same way that libraries safeguard the First Amendment rights of readers."
The American Constitution Society spokesperson agreed that “They can’t use an executive order to create new obligations to federal funding.” Another legal principle is that retroactive rulemaking is strongly disfavored by both constitutional doctrine and administrative law. The EveryLibrary Institute also emphasized that "Both constitutional doctrine and administrative law strongly disfavor retroactive rulemaking. The President lacks the authority to impose new duties or penalties for past actions or reinterpret statutory obligations after the fact." It further noted that even the Tennessee Constitution (Article I, Section 11) prohibits this type of retroactive application of law.
Above all, the First Amendment remains the highest authority for public libraries. The American Constitution Society’s analysis is that "An executive order that purports to apply a duly passed federal law or enumerated presidential power in a manner that violates the Constitution by, for instance, infringing on First Amendment speech rights… would also be unlawful." Public libraries exist to provide broad access to ideas. Viewpoint-based removal of books is one of the clearest First Amendment violations a government body can commit. No directive by a state agency can supersede that obligation.
So what should Tennessee library boards do now? First, boards should approach their attorneys equipped with a full and accurate understanding of the law, rather than being influenced by fear, rumor, or political pressure. The prudent path forward is to read the Tennessean’s story carefully, follow the links to the EveryLibrary Institute and American Constitution Society information, review the Secretary of State’s letter in light of the actual governing law, and consult legal counsel with these constitutional considerations in mind. Boards should avoid rushing into irreversible decisions based on an order whose legal foundation is widely disputed. Throughout the process, it’s essential to ensure that all actions and documentation explicitly reference the board’s First Amendment obligations.
The Tennessean’s reporting shows that this directive pushes beyond constitutional boundaries. Library boards are correct to hesitate; caution here is responsible governance.