Fifth Circuit Reverses Course, Greenlights Texas Library’s Controversial Book Removals

In a sharp and deeply divisive 10–7 decision, the full U.S. Court of Appeals for the Fifth Circuit ruled in favor of Llano County, Texas, overturning previous decisions that had blocked the local library’s removal of select books. The en banc ruling effectively dismisses the free speech claims brought by seven local library patrons, dealing a significant blow to First Amendment advocates and reigniting a national conversation around book bans in public libraries.

A Dramatic Reversal

The controversy began when Llano County officials removed 17 books from the shelves of its public libraries, citing objections to titles focused on race, sexuality, and even children’s humor titles—referred to in court documents as “butt and fart books.” Eight of those titles were quietly returned amid mounting legal scrutiny.

Previously, both a federal district court and a three-judge panel of the same Fifth Circuit had ruled that the removals likely violated the First Amendment. In April 2023, the panel stated clearly: “Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree.”

Now, however, Judge Stuart Kyle Duncan, writing for the majority, declared that public library decisions are a form of government speech, not subject to First Amendment challenge. “That is a relief,” Duncan wrote, “because trying to apply [First Amendment protection to library collections] would be a nightmare.”

He continued, “How would judges decide when removing a book is forbidden? May a library remove a book because it dislikes its ideas? Because it finds the book vulgar? Sexist? Inaccurate? Outdated? Poorly written? Heaven knows.”

He also dismissed concerns over censorship as “over-caffeinated,” writing, “Judging from the rhetoric in the briefs, one would think Llano County had planned to stage a book burning…. Take a deep breath, everyone. No one is banning (or burning) books.”

A Forceful Dissent

Judge Stephen A. Higginson authored a blistering dissent. “The majority overturns decades of settled First Amendment law,” he wrote, noting that “the district court found that the removals were likely motivated by political censorship.” Higginson argued that the ruling not only rewrites precedent but endangers the neutrality libraries are meant to uphold.

Quoting the plaintiffs, he emphasized that the constitutional concern lies not with what books are shelved, but how and why they are removed. “The government may not order books removed from public libraries out of hostility to disfavored ideas and information,” he wrote.

Higginson ended with a potent historical callback, citing President Dwight D. Eisenhower’s remarks during the McCarthy era: “Because I would not have our court ‘join the book burners,’ I dissent.”

What Comes Next?

The decision marks a significant precedent in the ongoing struggle between free speech advocates and conservative-led efforts to reshape public library collections. It raises immediate concerns about how libraries in the Fifth Circuit—covering Texas, Louisiana, and Mississippi—may interpret their discretion in curating or removing content.

Legal experts predict the ruling could invite further challenges to book access, especially amid broader national campaigns targeting books addressing race, gender identity, and sexual orientation. Free speech organizations like the American Library Association and PEN America have already expressed alarm, and additional legal battles could loom if plaintiffs appeal to the U.S. Supreme Court.

Broader Implications

This case unfolds as book challenges reach historic highs. In 2023 alone, the ALA recorded more than 4,000 unique book titles challenged—more than double the total in 2021. A large portion of those titles feature LGBTQ+ characters or themes related to race.

While Judge Duncan emphasized that “anyone can buy a book online,” free speech advocates counter that not every citizen has the means or access to bypass public library limitations. “The issue isn’t availability,” said one First Amendment scholar. “It’s about equitable, public access to diverse viewpoints—something the Constitution was meant to protect.”

As the fight over who decides what belongs on public shelves intensifies, the Fifth Circuit’s ruling may very well shape that debate for years to come.