Fifth Circuit, in 10-7 Decision, Allows Llano County to Remove 17 Books From Library Shelves

The U.S. Court of Appeals for the Fifth Circuit, in a 10-7 en banc decision, ruled that public library patrons in Llano County, Texas, cannot challenge the removal of books from library shelves under the First Amendment. The case, Little v Llano County, focused on the removal of 17 books, including titles such as 'Caste,' 'They Called Themselves the K.K.K.,' 'In the Night Kitchen,' 'It's Perfectly Normal,' 'Being Jazz,' 'Larry the Farting Leprechaun,' and 'My Butt is So Noisy!'. The plaintiffs argued that the removals, which affected books addressing LGBTQ+ and racial topics, violated their First Amendment right to receive information. The court's majority opinion, authored by Judge Stuart Kyle Duncan, held that libraries' decisions about their collections are government speech not subject to free speech challenges. Duncan wrote, 'No one is banning (or burning) books,' and noted that patrons can access removed titles through other means. This ruling overturns a previous Fifth Circuit precedent from 1995 and an earlier 2024 panel decision that had ordered some books returned to shelves. The majority opinion also highlighted that the Supreme Court has not issued a binding precedent on whether libraries may remove books based on viewpoint. The Eighth Circuit has taken a different approach, ruling that book removal does not fall under government speech. A dissent by Judge Stephen Higginson and six other judges argued that the removals were politically motivated and that the majority had abandoned established First Amendment protections. The ACLU, representing the plaintiffs, indicated they are considering further legal action, including a potential appeal to the U.S. Supreme Court. The original district court order had required the books to be returned while litigation proceeded, but this was reversed on appeal.