Little v. Llano County
Not yet published (2025)
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Rule of Law:
A public library's collection decisions, including the acquisition or removal of books, constitute government speech and are therefore not subject to a First Amendment Free Speech Clause challenge. Consequently, library patrons do not have a cognizable First Amendment 'right to receive information' that can be used to compel a library to retain books in its collection.
Facts:
- In 2021, a group of Llano County residents, including Rochelle Wells and Rhonda Schneider, began complaining to county officials about certain books in the public library system they deemed inappropriate.
- The complaints initially targeted a series of children's books, referred to as the 'Butt and Fart Books.'
- In response to these complaints, Llano County Judge Ron Cunningham and Commissioner Jerry Don Moss directed Library Director Amber Milum to remove the books from the shelves.
- Following the circulation of a list of controversial books by a Texas state representative, residents identified titles from that list within the Llano library's collection, labeling them 'pornographic filth' and 'CRT and LGBTQ books' in communications with county officials.
- Judge Cunningham subsequently ordered Milum to remove any books depicting sexual activity or 'questionable nudity.'
- Milum directed library staff to remove 17 specific books, including titles on racism, gender identity, and sexuality, based on the residents' complaints and officials' directives.
- The Llano County Commissioners Court dissolved the existing Library Advisory Board and appointed several of the book-removal advocates, including Wells and Schneider, to a new board.
- Leila Green Little and other library patrons attempted to check out the 17 removed books but were unable to because they had been removed from the library's collection and catalog.
Procedural Posture:
- Leila Green Little and six other patrons sued Llano County officials in the U.S. District Court for the Western District of Texas, alleging violations of their First Amendment rights.
- The plaintiffs filed a motion for a preliminary injunction seeking the return of the 17 removed books to the library shelves.
- The district court held a two-day evidentiary hearing and granted the preliminary injunction, ordering the defendants to return all 17 books.
- The defendants, Llano County et al., appealed the district court's order to the U.S. Court of Appeals for the Fifth Circuit.
- A divided three-judge panel of the Fifth Circuit affirmed the injunction in part, but modified it to require the return of only eight of the 17 books.
- The U.S. Court of Appeals for the Fifth Circuit granted rehearing en banc, which vacated the panel's decision.
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Issue:
Does a public library's removal of books from its collection, based on their content or viewpoint, violate library patrons' First Amendment right to receive information under the Free Speech Clause?
Opinions:
Majority - Duncan
No. A public library's removal of books does not violate patrons' First Amendment right to receive information because such collection decisions are government speech. The court advances two primary reasons for this conclusion. First, the 'right to receive information' is a negative right protecting against government interference with the private exchange of information, not an affirmative right to demand information from the government itself, such as by compelling a library to stock or retain certain books. Applying this right to removals would logically and unworkably extend to acquisition decisions and mire courts in subjective inquiries into librarians' motives. To clarify this, the court overrules its precedent in Campbell v. St. Tammany Parish School Board, which was based on a flawed interpretation of the non-precedential Supreme Court decision in Board of Education v. Pico. Second, a library’s curation of its collection is government speech. By selecting some books and excluding others, the library expresses a message about which materials it deems worthwhile, analogous to a museum curating an exhibit. The history of public libraries, public perception, and the government's control over collections all confirm this. Because the decision to remove the books is government speech, it is not regulated by the Free Speech Clause.
Concurring - Ho
No. The majority is correct to reverse. The First Amendment protects negative liberties (freedom from government compulsion) rather than positive rights (entitlement to government-provided resources). While citizens have a right to read books, they do not have a First Amendment right to force a public library to provide them. There is no principled constitutional distinction between a public museum curating its art collection and a public library curating its book collection; both are forms of government speech involving selection and exclusion. The dissent's attempt to distinguish between a library's decision not to acquire a book and its decision to remove one is unworkable and finds no basis in First Amendment jurisprudence.
Dissenting - Higginson
Yes. The politically motivated removal of books from a public library to deny access to disfavored ideas violates the First Amendment. The majority abandons settled precedent from Board of Education v. Pico and this circuit's own ruling in Campbell, which correctly established that the government's motivation is the key inquiry in book removal cases. These cases hold that while libraries have discretion, they may not remove books simply to 'prescribe what shall be orthodox' or for narrowly partisan reasons. The right at issue is not an affirmative right to compel a library to purchase books, but a negative right against government censorship. The majority's holding improperly expands the government speech doctrine and ignores the crucial distinction the Pico dissenters themselves drew between the inculcative role of school libraries and the 'freewheeling inquiry' of public libraries, where First Amendment protections are even stronger.
Analysis:
This en banc decision establishes a significant new precedent within the Fifth Circuit that effectively shields public libraries' collection management decisions from First Amendment free speech challenges. By categorizing a library's curation as 'government speech,' the court provides a powerful defense for public officials against lawsuits over book removals, regardless of their motivation. The decision explicitly overrules Campbell v. St. Tammany Parish School Board, eliminating the primary legal avenue previously available to challenge such removals. This ruling creates a direct circuit split with the Eighth Circuit's decision in GLBT Youth in Iowa Schools Task Force v. Reynolds, which rejected the government speech argument in a similar context, thereby increasing the likelihood of Supreme Court review to resolve the issue.
