In a judgment that is likely to impact freedom to read challenges across the country, Judge Stuart Kyle Duncan of the Fifth Circuit Court of Appeals has ruled that library collection decisions are “government speech” and therefore not protected by the First Amendment.

The 10–7 decision reversed the preliminary injunction issued in Little v. Llano County, a lawsuit filed in April 2022 by patrons of Llano County Library System, TX, over the removal of 17 books from one of the system’s three branches—as well as the system’s dissolution of its existing library advisory board, who were replaced by members picked by the County Commissioner’s Court; decision to close board meetings to the public; cancellation of the OverDrive ebook service; and firing of librarian Suzette Baker, who pushed back against the books’ removal. The titles mainly contained content on sexuality, gender, and racism; several were children’s “butt and fart books.”

Prior to this ruling, decisions in the case had favored the freedom to read. In his preliminary injunction issued in March 2023, Judge Robert Pitman of the Western District of Texas barred the county from further removing books and ruled that several of the contested books be returned to the library’s shelves and catalog. Eight of the 17 titles were restored. The Commissioner’s Court threatened to close the library’s three branches rather than comply with the judge’s order, but they ultimately remained open.

In June 2024, a three-person Court of Appeals panel upheld Pitman’s decision, ruling two to one that removal of the titles based on their content was a First Amendment violation. The dissenting vote was Duncan’s.

Shortly after, however, the Fifth Circuit vacated that decision, ordering an appeal to be heard en banc by the full panel of judges. At the September 2024 hearing, Llano County lawyer Jonathan Mitchell argued in favor of reversing Campbell v. St. Tammany Parish School Board, a precedent-setting decision from 1995 that found the removal of a book from the public-school libraries in a Louisiana parish to be in violation of the First Amendment.

Florida Solicitor General Henry Whitaker was given argument time as well to help make the case that the decisions of public libraries should fall under the Government Speech Doctrine—a line of approach that is being attempted in Florida as well.

PUSHING BACK ON PICO

In the majority opinion issued on May 23, written by Duncan, the Fifth Circuit both reversed the preliminary injunction in Little v. Llano County and overruled its own decision in Campbell v. St. Tammany Parish. In the judges’ opinion, “libraries curate their collections for expressive purposes”; thus, collection decisions fall into the category of government speech, and “Plaintiffs cannot invoke a right to receive information to challenge a library’s removal of books.” Now titles in Louisiana, Mississippi, and Texas—the states where cases are heard by the Fifth Circuit—can be removed from public library shelves for any reason. And the implications for libraries in states beyond those of the Fifth Circuit, that titles can now be removed based on their viewpoint or expressed opinions, have unsettled many in the library world.

“The American Library Association [ALA] and the Freedom to Read Foundation are deeply disappointed by the Fifth Circuit’s decision to allow the Llano County government to censor books because they do not like the ideas in those books,” said Deborah Caldwell-Stone, Director of ALA’s Office for Intellectual Freedom. “The court’s decision is in direct conflict with longstanding legal precedent and with recent rulings issued by the Eighth Circuit and other district courts that have considered these issues.”

In addition to rolling back Campbell—which the ruling stated “was based on a mistaken reading of precedent and, since decided, has played no role in similar controversies in our circuit”—the decision also went against the 1982 Board of Education v. Pico, in which the U.S. Supreme Court ruled that a New York school board’s removal of books violated students’ First Amendment rights.

Duncan conceded that “Yes, Supreme Court precedent sometimes protects one’s right to receive someone else’s speech. But plaintiffs would transform that precedent into a brave new right to receive information from the government in the form of taxpayer-funded library books. The First Amendment acknowledges no such right.”

It is notable that other circuits have rejected this argument, most recently the Eighth Circuit’s temporary blocking portions of Iowa’s SF 496, which would have silenced LGBTQIA+ students and banned books with LGBTQIA+ content in the state’s public schools, and the District Court for the Western District of Arkansas, which struck down the state’s Act 372 as unconstitutional. In addition, in three of the 10 concurring judges in this Fifth Circuit case did not sign on to the Government Speech section of the opinion.

“It is important that people really understand the impact of the en banc opinion,” plaintiff Leila Green Little told LJ. “If there are no limitations to curation and removal decisions in a public library, what does that look like when taken to its logical conclusions? If the county authorities are divided on specific books, whose opinion counts? If a county judge removes a book without going through the appropriate process, can it be returned? Can citizens just go and cull the shelves of anything with which they disagree and pay a nominal fine? Where would the checks of power be?”

“DISTURBINGLY FLIPPANT”

The 60-page opinion was also notable for its tone, which Carolyn Foote, cofounder of the grassroots anti-censorship group Texas FReadom Fighters, characterized as “bordering on sarcasm—I felt like it was very pointed and unusually personal for a court ruling.”

“Finally, we note with amusement (and some dismay) the unusually over-caffeinated arguments made in this case. Judging from the rhetoric in the briefs, one would think Llano County had planned to stage a book burning in front of the library,” Duncan wrote. “Take a deep breath, everyone. No one is banning (or burning) books. If a disappointed patron can’t find a book in the library, he can order it online, buy it from a bookstore, or borrow it from a friend.”

Not only does the wording “echo some of the partisan rhetoric we’re hearing in terms of book bans in general,” Foote told LJ, but it “ignores the economic reality for many Americans and teens who can’t just independently go buy all the books they want to read, and certainly for parents with young children. When I worked at the public library, these parents would check out stacks of 10, 20 books a week. It’s not like they can purchase all of those titles on their own.”

Judge Stephen A. Higginson led seven members of the Fifth Circuit in filing a 36-page dissent, which called Duncan’s response “both disturbingly flippant and legally unsound.” The dissent provided history and context for the Llano book challenges and widely cited the earlier First Amendment cases, noting that “the Pico–Campbell standard has worked for decades,” and that this decision does not follow longstanding precedent; only the Supreme Court can adjust that ruling.

“All legal rules have their nuances when applied to novel factual contexts, but it is our role to resolve those complexities to the best of our abilities,” Higginson stated. “We cannot shirk our responsibility simply because some members of our court hypothesize that First Amendment lines may be difficult to draw.”

Next stop for the case, should the plaintiffs choose to appeal in the 90-day period following the decision, is the Supreme Court. While it is not obligated to hear the case, because there is a circuit court split—and because this opinion attempts to argue that a standing Supreme Court decision is without precedential value—it may want to address these questions. In the meantime, despite a potential for upticks in book challenges in Fifth Circuit states, the constitutional safeguards already in place still stand.

“This ruling from the Fifth Circuit invites political actors to impose their ideologies on public libraries with impunity. It’s a dangerous precedent that undermines the core mission of libraries,” said John Chrastka, executive director of library PAC EveryLibrary. “But the fight isn’t over. If federal courts won’t protect the right to read, then we must advance strong, enforceable protections state by state.”

“The work we’re all doing is part of a historical moment right now, and sometimes we’re going to have to take the long game,” said Foote. “These losses are deeply painful and difficult in the moment, but we know we’re on the right side of history. We know we’re on the right side of the Constitution.”

“Anti-censorship advocates like myself have routinely encountered disdain and disbelief at proposed prophetical scenarios when we push back against book banning,” noted Little. “What started in Llano with pearl-clutching over Freddie the Farting Snowman has now resulted in a free-for-all pass for unencumbered suppression and removal of any and all books from public libraries. That is the logical endpoint for censorship, which is why it must be confronted loudly and unequivocally.”