23-05-2025
5th Circuit rules Texas library patrons have no First Amendment right to information
The federal 5th Circuit Court of Appeals ruled for the first time Friday that public library patrons have no right to receive information under the First Amendment, overturning a decades-old precedent barring the removal of library books "simply because they dislike the ideas within them.'
Coming from the full bench of the New Orleans-based court, the stunning 10-7 decision strikes down a lower court ruling that ordered Llano County in Texas to temporarily return 17 books it had removed from public library shelves.
It also sets up a circuit split that could send the case to the U.S. Supreme Court.
In a 60-page majority opinion, Judge Stuart Kyle Duncan asserted that 'no one is banning (or burning) books' by removing them from libraries because they're available elsewhere.
"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,' wrote Duncan, who was appointed by President Donald Trump. 'All Llano County has done here is what libraries have been doing for two centuries: decide which books they want in their collections."
To serve the public, libraries have to decide "which ideas belong on the shelves and which do not," Duncan ruled.
"If you doubt that, next time you visit the library ask the librarian to direct you to the Holocaust Denial Section," the judge wrote.
Seven dissenting judges called these statements from the majority 'disturbingly flippant' and warned that the decision 'forsakes core First Amendment principles' about the people's right to be informed.
'Libraries provide critical access to books and other materials for many Americans who cannot afford to buy every book that draws their interest, and recent history demonstrates that public libraries easily become the sites of frightful government censorship,' wrote Judge Stephen A. Higginson, an appointee of former President Barack Obama.
Higginson argued that public libraries help ensure Americans have access to a range of ideas.
'As the Framers knew, only an informed and engaged people can sustain self-governance," he wrote.
The reversal of the 5th Circuit's 1995 ruling in Campbell vs. St. Tammany Parish School Board is a win for Llano County, and Republican attorneys general across the country, who argued that public library collections are not subject to federal protections for free speech. The 1995 case found that a Louisiana school board could not ban books on witchcraft because doing so would violate students' right to receive information.
Friday's decision also marks the next step in a national culture-wars battle over library materials that has rocked the country — and rural communities like Llano, a Texas Hill Country hamlet 75 miles northwest of Austin — since 2020.
More: How a national dispute over library books is fracturing a small Texas town
Seven patrons of Llano County public libraries filed the lawsuit in 2022 after the county removed 17 books targeted by a group of conservative Christian activists for their content on race, gender and sexuality, as well as some children's books that contained nudity. While County Judge Ron Cunningham argued that he only sought to temporarily remove books with inappropriate or sexual content, both the district court and the majority of a three-judge 5th Circuit Court of Appeals panel ruled that officials were likely motivated by a desire to censor books for political reasons.
Several of the materials taken off shelves came from a list of roughly 850 books curated by former Republican state Rep. Matt Krause of Fort Worth that focused on content about LGBTQ+ issues, abortion and race.
Friday's 5th Circuit decision reverses U.S. District Court Judge Robert Pitman's preliminary ruling from March 2023, which required Llano County officials to keep the 17 removed books on shelves while the litigation continued. The case has not yet gone to trial.
The Friday ruling also marks a sharp departure from the 5th Circuit's previous ruling in the same case. In November 2024, two of three judges on the appeals court found that officials cannot remove books "with the intent to deprive patrons of access to ideas with which they disagree," but that some children's books can be removed over concerns about sexual content or nudity. The decision ordered the county to restore eight of the 17 removed books, which included books on transgender teens, social caste, and the Ku Klux Klan. Those titles are:
"Caste: The Origins of Our Discontent" by Isabel Wilkerson
"Called Themselves the K.K.K: The Birth of an American Terrorist Group" by Susan Campbell Bartoletti
"Spinning" by Tillie Walden
"Being Jazz: My Life as a (Transgender) Teen" by Jazz Jennings
"Shine" by Lauren Myracle
"Under the Moon: A Catwoman Tale" by Lauren Myracle
"Gabi, a Girl in Pieces" by Isabel Quintero
"Freakboy" by Kristin Elizabeth Clark
Friday's decision came from the full court, rather than a three-judge panel.
Jonathan Mitchell, Llano County's attorney in this case, argued that library collection decisions are "government speech" and are therefore immune from First Amendment scrutiny. But in August, the 8th Circuit Court of Appeals rejected the argument that the government-speech doctrine applies in a case over an Iowa law banning books depicting sex acts.
Friday's 5th Circuit ruling "creates a direct split" with the 8th Circuit over whether public libraries engage in government speech, Bob Corn-Revere, an attorney for the Foundation for Individual Rights and Expression, told the American-Statesman. This split makes the Supreme Court more likely to step in and settle the debate, he said.
Corn-Revere also said he disagreed with the New Orleans court's "extreme position" about the applicability of the First Amendment to public library decisions.
"Public libraries are created to promote the widespread dissemination of knowledge, not to deliver a government message, and political decisions that undermine that purpose conflict with the First Amendment," Corn-Revere wrote in an email.
Katherine Chiarello, an attorney for the plaintiffs, said they are "considering next steps" as they analyze the opinion. She did not state whether they plan to appeal to the high court.
"It is very disappointing that the Fifth Circuit has regressed from longstanding protection of a citizens' right to receive information under the First Amendment, as well as having created a circuit split," she said in a phone interview Friday.
Cunningham, the Llano County judge, said the county is withholding comment while it reviews the 5th Circuit ruling.
More: A conservative nonprofit got $80k for a Texas book-ban battle. Llano County hasn't seen it
(This story was updated to add a photo gallery.)
This article originally appeared on Austin American-Statesman: 5th Circuit overturns decades-old precedent in Texas library case
