This case deals with the right of public libraries to withdraw books from circulation.
The case arose when seven library patrons sued the librarian and other officials for removing 17 books from the Llano County, Texas, public library, guided in part by a list of offensive books that a state legislator had identified.
Relying in part on the Supreme Court’s ambiguous decision regarding school libraries in Board of Education, Island Trees Union Free School District v. Pico (1982), a U.S. district court had issued a preliminary injunction ordering the books to be restored and prohibiting the withdrawal of other books.
Initial Decisions
In a decision in Little v. Llano County, 103 F.4th 1140 (2024), the U.S. Court of Appeals for the 5th Circuit had largely upheld this injunction on the basis that patrons had a right to receive information, albeit in a ruling that had elicited a strong dissent.
The 2025 decision described in this entry by the court sitting en banc overturned that injunction on the grounds that the “right to receive information” was an improper basis for challenging the removal of books and that library collection decisions constituted a form of “government speech,” which is not subject to First Amendment challenge.
Duncan’s Majority Opinion
The majority opinion, representing 10 members of the 5th Circuit court was authored by Judge Stuart Kyle Duncan, who had authored a blistering dissent in the court’s earlier decision. In the introduction to his decision, Judge Duncan emphasized that he was not sanctioning book banning. Taking issue with a decision by the 8th Circuit court in GLBT Youth in Iowa Schools Task Force v. Reynolds, 114 F.4th 660 (2024), the judge also argued that the government was not speaking “through the words of the books themselves,” but “by selecting some books over others and presenting that collection to the public—just as a museum does when it curates a collection of various schools of art.”
Right to Receive Information
After reviewing a number of cases based on the right to receive information, including Stanley v. Georgia (1969) [involving the right to view pornography in one’s home], Duncan observed that although the cases established that the government’s power to prevent one person from receiving another’s speech, “In none of these cases . . . did a plaintiff invoke a right to receive information from the government.” They thus represented a negative right against government interference rather than a positive right on the part of the government, he said.
Citing Muir v. Alabama Educ. Television Comm’n, 688 F.2d 1033 (Former 5th Cir. 1982), Duncan argued that the Supreme Court’s decision in Pico was so fractured that it had no precedential value. While other circuit court decisions had addressed the issue of whether “a library could evict someone from its premises, it had not ruled that “someone could demand the library put certain books on its shelves.”
Duncan argued that “if people can challenge which books libraries remove, they can challenge which books library buys,” which he thought was far beyond judicial purview. More generally, he argued that judicial attempts to decide which books were appropriate and which were not “would tie courts in endless knots.” Because a library is not a warehouse, it has no obligation to keep books that are “out-of-date, inaccurate, biased, vulgar, lurid, or silly.”
Viewpoint Discrimination
Acknowledging that libraries were exercising viewpoint discrimination, Duncan pointed out that those who could not find a book they wanted in a library could borrow or buy a copy or go to another library to find it. Duncan accordingly decided that the 5th Circuit’s decision in Campbell v. St. Tammany Parish School Board, 64 F.3d 184 (1994), prohibiting the removal of the book “Voodoo & Hoodoo” from a school library had been “wrongly decided” and was accordingly overruled.
Government Speech
Returning to the issue of government speech, Duncan pointed to numerous precedents, most notably City of Pleasant Grove v. Summum (2009) [accepting a monument on government grounds] and United States v. American Library Association (2003) [accepting age filters on library internet access] where the government had to decide which speech to permit and exclude on its premises. Libraries have the right and the duty to curate their collections.
Public Forum
Duncan further argued that a library did not create a public forum by selecting books. Even when libraries created a limited public forum by opening its premises to expressive activities, it was not required to open its bookshelves to everything.
In further considering the case of Shurtleff v. City of Boston (2022) [ruling that a city that allowed private parties to fly their flags on government property created a limited public forum], Duncan reviewed the long history of public libraries and long-established criteria for curating such collections by excluding volumes that were biased, racist, inaccurate, or outdated. Duncan thus argued that the 8th Circuit Court had been mistaken in GLBT Youth in Iowa Schools Task Force v. Reynolds, 114 F.4th 660 (2024), in ruling that the public would not view the placement and removal of books in public schools as government speech.
Ho’s Concurring Opinion
Judge James C. Ho issued a concurring opinion, which emphasized that the founders “enact a charter of negative liberties,” or “freedom from, not freedom to.” He also argued that if the government was not required to buy certain books, then it could hardly be forbidden from removing them. Although plaintiffs had the “right to read books,” Ho said that “They don’t have a First Amendment right to force a public library to provide them.”
Higginson’s Dissenting Opinion
Judge Stephen A. Higginson wrote a dissenting opinion on behalf of seven justices. Higginson went into considerable detail in describing the actions that led to this suit, arguing that the reasons that officials had given for removing books was largely pretextual and was based on their dislike of their viewpoints and contents.
Higginson believed that Pico, Campbell, and other decisions had pointed to “the right to receive information and the right to be free from officially prescribed orthodoxy,” which he thought the library had tried to enforce in this case. Whereas Duncan had pointed to disagreements in how to apply the Pico-Campbell standard, Higginson did not believe that its principle had proved to be unworkable or had invited greater confusion than in other areas of jurisprudence. He also thought that if Pico were overruled, this should be the job of the U.S. Supreme Court.
Arguing that the majority opinion had been too flippant and dismissive of First Amendment rights, Higginson said that the real issue was “whether government officials may restrict—abridge—the spectrum of ideas available to the public by culling books from library shelves, simply because those officials find the books’ ideas inappropriate, offensive, or otherwise undesirable,” to which he answered with a resounding “No.”
Favorably citing some examples, he did say that “public libraries . . . are free to organize their books in a manner that ensures patrons are directed to age-appropriate materials.”
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.