In the introduction to his opinion for the 10-7 full Fifth Circuit Court of Appeals decision on a book censorship case, Judge Stuart Kyle Duncan added a few attempts at humor. Mocking some of the arguments made in Little v. Llano County as "unusually overcaffeinated," he chided the plaintiffs for thinking "Llano County had planned to stage a book burning in front of the library.”
The en banc panel's decision that removing certain books didn't violate the plaintiffs' First Amendment rights may not have felt like something to joke about to those involved. In reaching their split decision on May 23, 2025, the majority of the panel overturned their own precedent from 1995's Campbell v. St. Tammany Parish School Board and chose not to follow the established norm set by Board of Education v. Pico (1982).
While those responsible for removing the books from the Llano County library might not have burned them, they made them inaccessible to patrons. For many, that's no laughing matter.
Removing Children's Books
Llano County sits near the dead center of Texas. Spanning just under 1,000 square miles, its population of about 23,000 is served by the three branches of the Llano County Library system.
In 2021, a group of residents asked the Llano County library commissioner to remove children's books they considered obscene and offensive. There's speculation that the motivation came from a Texas state representative who had issued school superintendents a list of books he found objectionable. The books called into question at the library included works by Maurice Sendak and Pulitzer-Prize winning author Isabel Wilkerson.
The commissioner ordered the books removed, but both librarians and the library board balked. In response, the commissioner dissolved the existing library board in January 2022 and replaced it with handpicked members agreeable to banning the named texts. The head librarian of the Kingsland Branch was fired for making a display that featured banned books. Her wrongful termination suit is still pending.
A suit filed by a group of seven citizens won a preliminary injunction in 2023. A federal court ruled that, as government institutions, libraries were subject to First Amendment limitations. An appeal heard by the Fifth Circuit in 2024 upheld the decision, ruling that some of the 17 books had been removed from the library's shelves illegally. The majority of the panel agreed that library patrons "have the right to receive information and ideas.
'Curating' Books Is Not Government Speech
In his opinion, Judge Duncan writes that curating books is part of every library's process, and he suggests to "Take a deep breath, everyone. No one is banning (or burning) books."
According to the majority, while "Supreme Court precedent sometimes protects one's right to receive someone else's speech," this does not mean there is "a brave new right to receive information from the government in the form of taxpayer-funded library books." The case was decided on this argument.
Fewer judges joined Duncan in his second holding, which alleged that "a library's collection decisions are government speech and therefore not subject to Free Speech challenge." Put simply, while the First Amendment prohibits the government from infringing on others' speech, the First Amendment does not prohibit the government from engaging in whatever speech it wants to. And curating books, as with curating a museum display, is tantamount to government speech.
Dissent Would Protect Precedent, Disfavored Speech in Libraries
In his dissent, Judge Stephen Higginson argued that the decision does indeed indicate that the majority is joining the side of the "book burners." As Higginson argued, "the logic of the Supreme Court's school library decision in Pico—that the government may not remove library books with the purpose of denying access to disfavored ideas—applies with even greater force to public libraries." Higginson's argument was that the district court found that the books at issue where removed due to their political and social ideas. This is viewpoint discrimination, which the First Amendment prohibits. And nowhere is it more important to protect otherwise disfavored political speech than in public libraries.
In further support of his argument, Higginson noted that the "curation" in Llano County didn't take place until after the existing library board was dissolved in favor of like-minded new members, suggesting the books were removed because they discussed ideas disfavored by current officials in the Texas government.
Books Can Be 'Curated' For Now
Absent the Supreme Court taking up the case, the inability to challenge the removal of certain books under First Amendment protections will hold sway in the states under the jurisdiction of the Fifth Circuit—Louisiana, Texas, and Mississippi.
Related Resources
- Banned Books in American Public Schools (FindLaw's Education Law)
- Banning Books and the Law (FindLaw's Student Rights)
- Librarians Find Themselves on the Frontlines Battling Censorship (FindLaw's Law and Daily Life)
