Politics Can Now Dictate Public Library Collections in Three States, Per Fifth Circuit Ruling

In an en blanc panel opinion, the Fifth Circuit Court of Appeals ruled on Friday, May 23, 2025, that the First Amendment cannot be used to challenge book removals in three U.S. states. The majority ruling held that library books are government speech and thus, not subject to the Free Speech clause. This was the first loss to the Leila Green Little, et al. v. Llano County, et al. case, where a group of library patrons in Llano County, Texas, sued on the grounds their First Amendment Rights to information and access were curtailed when 17 books were removed in the Llano County Public Library based on their contents.

The 10-7 ruling from the Fifth Circuit, known as the most conservative Circuit Court in the country, overrides the Campbell case precedent, which has been in effect since 1995. Now, the preliminary injunction in the case no longer holds, meaning that in the states of Louisiana, Mississippi, and Texas, books can be removed from public library shelves for any reason. There are no longer rules governing what can or cannot be withheld or removed.

This provides fertile ground for removing materials from shelves based entirely on political motivation and sets up ample opportunity for the development of biased library collections paid for by taxpayer dollars. We have seen attempts to do this in several libraries in these three states, and we will see even more–with success–on account of this judgment. Expect more libraries in Fifth Circuit states implementing wholesale bans on books related to gender, race, and more, as has already been seen in places like Greenville County Libraries (SC), Rutherford County Libraries (TN), and Katy Independent School District (TX).

The majority opinion, issued by Judge Stuart Kyle Duncan–a Trump appointee–is laden with the same tone and arguments seen by those seeking book bans over the last four+ years:

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 […] 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 […] All Llano County has done here is what libraries have been doing for two centuries: decide what books they want in the collection.

This is not in fact what libraries have done for two centuries. Public libraries do more than simply “decide” what books “they” want in the collection. Collection development is a professional task, performed with several factors in mind. Among them are the library’s budget, its community make-up, reviews of books under consideration, and both the strengths and needs of the current library collection. These decisions are not made in the library’s interests. They’re made in the interests of the patrons–all of them, not the demographics with the loudest voices or most connections–whose tax dollars sustain the library.

Judge Duncan also suggests that librarians determining a material is factually inaccurate or educationally unsuitable is indistinguishable from disliking a book’s content or viewpoint–a belief that fundamentally undermines and belittles not only the purpose of a library but also the work done by professional library workers.

Indeed, the 17 books at the heart of this case are all on the same themes that have been under direct attack from the right for years: books on topics of racism, gender, and sexuality. In Llano County, most of those books were published for and made available in collections for young readers–indeed, among the 17 books pulled from the collection were three “butt books” and four “fart books.” The argument here that a disappointed patron can simply get the book elsewhere undermines the real victims of book censorship yet again: young people who do not have access to online purchasing of books, who do not have access to a car to get to a bookstore, and who do not have the financial means of acquiring the book at all. Young people continue to be the most marginalized, maligned, and overlooked demographic in America. Libraries provide access. Removing books and ruling that the library does not need to provide access to books flies squarely in the face of the purpose for a public library.

That is, of course, intentional.

The decision here is infuriating and flies in the face of prior decisions made in freedom to read cases, including 1982’s Supreme Court case Pico vs. Island Trees School District. The dissenting opinion pulls heavily from Pico and points out that their judicial colleagues tossed out that prevailing decision in favor of footnote in a 1982 Fifth Circuit case.

While reading the majority opinion makes clear there is little care to understand the role of a public library, let alone interest in actually defining the nuances of the First Amendment, it is worth spending some time with the dissenting opinion. The judges have a clear vision of what the purpose of a public library is, and they also articulate what this ruling opens the door to in terms of access to information available to the public in Louisiana, Mississippi, and Texas.

From the dissent:

Let me finish with the practical reminder that the Supreme Court’s nearly-half-century-old Pico test, applied by us in Campbell, has proven sensible and durable, causing neither confusion nor excessive federal court intrusion. The Pico rationale–which applies with even greater force in the public library context–contains ample flexibility for public libraries to continue to make collection management decisions mades on any number of preexisting and standardized constitutional considerations, including accuracy, currentness, and physical condition. Public libraries importantly serve patrons of all ages, and they have broad latitude to provide safe spaces for parents to encourage a love of learning in their children, while respecting each parent’s perogative to guide their own child’s public library reading and, at the same time, without encroaching on every other patron’s First Amendment rights.

Following the judgment in this case, plaintiffs have 90 days to decide whether or not to appeal the decision. The next stop would be the Supreme Court, though the Court does not have to take the case were Little et al. were to appeal.

Because this decision overturns the prior decision in the lower courts, which required that Llano County Library temporarily return the 17 books to shelves, those books may once again be removed from the collection. You can read the full decision here.