Fifth Circuit Says No Right to Fight Library Book Removals (1)

A federal appeals court ruled that a public librarian’s decision to pull certain books off the shelves can’t be challenged under the First Amendment, a ruling that could jeopardize other cases over book restrictions in libraries.

A divided en banc US Court of Appeals for the Fifth Circuit found Friday that parties behind the challenge couldn’t invoke a First Amendment right to receive information to challenge a library’s removal of books. The court’s opinion also said a library’s collection is government speech and can’t be challenged under the First Amendment’s Free Speech Clause, although a majority of judges didn’t endorse the theory.

The books covered topics including transgender issues, race and slavery in the United States, and bodily functions from puberty to flatulence.

Judge Stuart Kyle Duncan wrote for the majority that “no one is banning (or burning) books.” He said patrons can access titles they can’t find at the library through other means, and referred to arguments by some parties in the case that referenced “book bans,” “pyres of burned books,” and “totalitarian regimes” as “unusually over-caffeinated.”

“All Llano County has done here is what libraries have been doing for two centuries: decide which books they want in their collections,” Duncan wrote. “That is what it means to be a library—to make judgments about which books are worth reading and which are not, which ideas belong on the shelves and which do not.”

“If you doubt that, next time you visit the library ask the librarian to direct you to the Holocaust Denial Section,” he added.

Matthew Borden, a partner with BraunHagey & Borden LLP who argued the case for the challengers, said they disagree with the decision. “Library censorships by the government goes to the core of what the First Amendment prohibits,” he said.

Katherine Chiarello, a partner with Botkin Chiarello Calaf also representing the challengers, said they’re considering next steps. “It is very disappointing that, today, the Fifth Circuit has regressed from its long standing protection of a citizen’s right to receive information under the First Amendment and that it has created a circuit split by dramatically expanding the scope of the government speech doctrine,” she said.

The majority opinion overturns a Fifth Circuit ruling from 1995 that opened the door to challenges against book removals in public libraries.

The majority pointed to a past finding that the Supreme Court’s fractured 1982 decision in Island Trees School District v. Pico isn’t binding. That opinion cuts against school boards’ ability to remove books from school libraries on the basis of content.

Judges Edith Jones, Jerry Smith, Don Willett, James Ho, Kyle Engelhardt, and Andrew Oldham joined Duncan’s majority opinion in full. Chief Judge Jennifer Walker Elrod, as well as Judges Catharina Haynes and Cory Wilson, joined the first three sections of the opinion,which didn’t include the finding that library collections are government speech, and the judgment.

Judge Stephen Higginson was joined by six others in dissent, saying the majority opinion “overturns decades of settled First Amendment law, disparaging its free speech protections as a ‘nightmare’ to apply.”

He said only the Supreme Court could adjust its findings in Pico, and that the Fifth Circuit majority reached a result “directly contrary” to it.

Higginson said the majority also “omits material facts” about how and why the books were removed from shelves. He said that’s significant because the trial court found the removals"were likely motivated by political censorship, and we disturb such findings of fact only when the district court has committed clear error.”

“Here after across Texas, Louisiana, and Mississippi, it simply does not matter legally if public officials, motivated by political hostility, target and remove books they deem inappropriate or offensive, in order to deny the public access to the information and ideas therein,” Higginson said.

He said that the majority’s response to concerns about censorship and book bans is “both disturbingly flippant and legally unsound.”

Higginson closed his dissent by quoting a Dartmouth commencement speech by President Dwight Eisenhower in 1953, during the McCarthy era, in which he told the graduating glass, “Don’t join the book burners.”

“Because I would not have our court ‘join the book burners,’ I dissent,” Higginson wrote. He was joined by Judges Jacques Wiener, Carl Stewart, Leslie Southwick, James Graves, Dana Douglas, and Irma Ramirez.

Ho said in a concurrence that he had trouble finding the difference between the refusal to buy certain titles, which the dissent said was permitted under the First Amendment,and removing books. “If viewpoint discrimination is forbidden, then viewpoint discrimination is forbidden,” he said.

Conservative attorney Jonathan Mitchell argued in September to 18 circuit judges that they should extend the government speech doctrineto include public librarians. The principle immunizes the federal government from First Amendment challenges.

US District Judge Robert Pitman had initially ordered Llano County, located about 80 miles northwest of Austin, to return the books to shelves, and to not remove other titles for any reason during the course of the litigation.

A divided three-judge Fifth Circuit panel in June 2024 largely upheld that order.

The case is Little v Llano County, 5th Cir. en banc, No. 23-50224, 5/23/25