Case Summary and Outcome

The United States Fifth Circuit Court held that Llano County officials did not violate the First Amendment when they removed seventeen books from the county’s public library shelves following citizen complaints about their racial, sexual, and LGBTQ themes. The case arose after several library patrons sued, arguing that the removals amounted to unconstitutional censorship and violated their right to receive information. A district court and an earlier appellate panel agreed, ordering the books returned. However, sitting en banc, the Fifth Circuit reversed, finding that the First Amendment does not give the public a right to demand that government libraries provide or retain particular books. The Court explained that decisions about which books to keep or remove are part of a library’s normal curatorial discretion and constitute government speech, not a public forum for private expression. It compared libraries to museums, which select what to display without constitutional challenge. The Court also overruled its earlier precedent in Campbell v. St. Tammany Parish School Board (1995), rejecting its reliance on Board of Education v. Pico (1982), and concluded that removing books for reasons such as relevance, suitability, or community standards does not violate free speech rights. The dissenting judges, however, accused the majority of endorsing censorship, warning that the ruling allowed government officials to “silence disfavored ideas” under the guise of library management.

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Facts

In 2021, controversy arose within the Llano County Library System in Llano County, Texas, concerning the removal of several books from the county’s public libraries. Llano County, located approximately eighty miles northwest of Austin and home to about 21,000 residents, operates three public library branches located in Llano, Kingsland, and Buchanan Dam. The Llano County Library System is overseen by the County Commissioners Court, led by County Judge Ron Cunningham. Amber Milum served as the Library System Director and was responsible for managing the library’s collection, including book selection and removal, under the Texas Local Government Code.

In August 2021, Llano County residents Rochelle Wells, Eva Carter, and Jo Ares lodged complaints with Judge Cunningham about what they described as “pornographic and overtly sexual books” in the children’s section of the library. Their primary concern was a series of humorous children’s books commonly referred to as the “butt and fart books.” These included My Butt Is So Noisy!, I Broke My Butt!, and I Need a New Butt! by Dawn McMillan, and Larry the Farting Leprechaun, Gary the Goose and His Gas on the Loose, Freddie the Farting Snowman, and Harvey the Heart Has Too Many Farts by Jane Bexley. Wells reportedly checked out these books repeatedly to keep them out of circulation. Following these complaints, Judge Cunningham directed Library Director Milum to remove the books from the shelves. Commissioner Jerry Don Moss also urged Milum to do so, warning that ignoring the issue could lead to negative publicity or potential legal action. Milum complied and removed the books from both the shelves and the electronic catalog.

A few months later, additional complaints prompted further removals. Judge Cunningham forwarded an email from resident Bonnie Wallace that contained a list of books identified as objectionable by Texas State Representative Matt Krause. Wallace referred to the books as “pornographic filth” and urged that they be taken out of the library system. Acting on Cunningham’s direction, Milum removed all the books on Wallace’s list. She testified that she did so under the library’s “Continuous Review, Evaluation, and Weeding” (CREW) method, which evaluates materials under the “MUSTIE” criteria (Misleading, Ugly, Superseded, Trivial, Irrelevant, or Elsewhere). However, Milum admitted that she would not have removed those titles had she not received the Wallace list.

By the end of 2021, seventeen books had been permanently removed from the Llano County Library System. These included:

• My Butt Is So Noisy!, I Broke My Butt!, and I Need a New Butt! by Dawn McMillan;
• Larry the Farting Leprechaun, Gary the Goose and His Gas on the Loose, Freddie the Farting Snowman, and Harvey the Heart Has Too Many Farts by Jane Bexley;
• Being Jazz: My Life as a (Transgender) Teen by Jazz Jennings;
• Freakboy by Kristin Elizabeth Clark;
• Gabi, a Girl in Pieces by Isabel Quintero;
• Shine and Under the Moon: A Catwoman Tale by Lauren Myracle;
• Spinning by Tillie Walden;
• Caste: The Origins of Our Discontents by Isabel Wilkerson;
• They Called Themselves the K.K.K.: The Birth of an American Terrorist Group by Susan Campbell Bartoletti;
• It’s Perfectly Normal: Changing Bodies, Growing Up, Sex, and Sexual Health by Robie H. Harris; and
• In the Night Kitchen by Maurice Sendak.

In January 2022, the Llano County Commissioners Court dissolved the existing library board and created a new one. Judge Cunningham appointed Rochelle Wells and Bonnie Wallace, two of the original complainants, to the new board. The board then restricted the authority of the Library Director, barring Milum from attending board meetings and requiring her to obtain prior approval before purchasing new materials. Although replacement copies of the seventeen removed books were later donated, they were not restored to the library shelves or listed in the public catalog. Patrons could only access them by specifically requesting them from library staff. Their availability was not publicly disclosed, making it impossible for ordinary patrons to know they remained in the collection.

In April 2022, seven library patrons, Leila Green Little, Jeanne Puryear, Kathy Kennedy, Rebecca Jones, Richard Day, Cynthia Waring, and Diane Moster, filed suit in the United States District Court for the Western District of Texas against Llano County; Judge Cunningham; Commissioners Moss, Jones, Sandoval, and Raschke; Library Director Milum; and Library Board Members Wallace, Wells, Schneider, and Baskin in their official capacities. They alleged that the defendants violated their First Amendment rights by removing the books based on their content and viewpoints.

After a two-day evidentiary hearing, the District Court found that the removals were substantially motivated by disagreement with the ideas expressed in the books. The District Court concluded that the defendants’ actions constituted viewpoint and content discrimination and that the justifications offered under the “weeding” policy were pretextual. In March 2023, the District Court issued a preliminary injunction ordering the county to return all seventeen books to the public shelves, restore them to the catalog, and refrain from removing any books during the pendency of the case.

Judge Wiener of the United States Court of Appeals for the Fifth Circuit delivered the majority opinion. Judge Southwick concurred in part, and Judge Duncan dissented. The Court addressed the question of whether Llano County officials violated the First Amendment when they removed seventeen books from the public library system based on objections to their content. Judge Wiener, writing for the majority, affirmed most of the District Court’s preliminary injunction, concluding that the plaintiffs were likely to succeed on the merits of their claim that the removals were motivated by an intent to suppress access to certain ideas. The Court found that the defendants’ actions went beyond permissible discretion in library management and instead constituted viewpoint discrimination, which is “the antithesis of those procedures that might tend to allay suspicions regarding the government’s motivation.” [p. 18] The Court emphasized that under Board of Education v. Pico, and Campbell v. St. Tammany Parish School Board, officials may not remove library books simply because they dislike the ideas contained in them.

The majority opinion explained that although libraries have broad discretion to curate their collections, that discretion is not absolute and must be exercised “within the limits and constraints of the First Amendment.” [p. 9] The Court reaffirmed that patrons possess a constitutionally protected “right to receive information and ideas,” [p. 9] citing Stanley v. Georgia. It reasoned that while librarians may consider content when selecting or removing books, the removal of a book becomes unconstitutional if it is “substantially motivated” by a desire to deny access to ideas with which officials disagree. Applying that standard, the Court found ample evidence that the removals were prompted by constituent complaints describing the books as “pornographic filth” and objecting to their discussions of race, sexuality, and gender identity. The Court noted that the Library Director, Amber Milum, had testified that she would not have removed the books but for the direction of county officials following receipt of a list of “objectionable materials.”

The Court found that the defendants’ claim that the books were removed as part of a neutral weeding process under the “Continuous Review, Evaluation, and Weeding” (CREW) method was “pretextual.” [p. 20] The Court observed that Milum’s application of the CREW “MUSTIE” criteria was inconsistent and selectively applied. For instance, she had removed Freakboy by Kristin Elizabeth Clark on the basis that it had not been checked out in years and was available elsewhere, but had not applied those same standards to hundreds of other books meeting identical conditions. The Court also found that the removal of In the Night Kitchen and It’s Perfectly Normal could not be justified as “ugly” or “damaged,” as the physical evidence contradicted those assertions. [p. 20] The Court concluded that these explanations “fell apart under scrutiny” and that the true reason for removal was disagreement with the books’ viewpoints on race, sexuality, and identity.

The Court held that the District Court did not clearly err in determining that the plaintiffs were likely to suffer irreparable harm if the books remained inaccessible, because requiring patrons to request the books from librarians directly imposed an unconstitutional burden on their right to receive information anonymously. The Court found that such a requirement created a “deterrent effect” on access to protected material. The panel, however, modified the injunction to ensure that it was narrowly tailored. It limited the injunction’s scope to the seventeen removed books rather than to “all print books” and struck the portion of the District Court’s order barring the library from removing any books “for any reason during the pendency of this action.” [p. 25–26] In all other respects, the Court affirmed the District Court’s preliminary injunction, holding that “government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree.” [p. 26]

After the three-judge panel’s decision, the case was reheard en banc by the full Fifth Circuit.

The en banc decision of the United States Court of Appeals for the Fifth Circuit was appealed to the U.S. Supreme Court, which denied certiorari on December 8, 2025.

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Decision Overview

Judge Duncan delivered the majority opinion, which was joined in full by Judges Jones, Smith, Willett, Ho, Engelhardt, and Oldham. Chief Judge Elrod and Judges Haynes and Wilson joined Parts I–III of the judgment. Judge Higginson delivered the dissenting opinion, joined by Judges Wiener, Stewart, Southwick, Graves, Douglas, and Ramirez. The primary issue before the Court was whether public library patrons could invoke the First Amendment “right to receive information” to challenge the removal of books from a county library’s collection, or whether such collection and removal decisions constitute government speech beyond the scope of First Amendment review.

The plaintiffs contended that the removal of seventeen books from the Llano County public library system constituted a direct violation of their First Amendment right to receive information. They argued that this right, long recognized by the Supreme Court, protected not only the ability to speak but also the corresponding ability to access ideas and information free from government censorship. According to the plaintiffs, the removals were not motivated by neutral or procedural concerns about book condition or circulation but by “complaints that the books were ‘inappropriate,’ ‘pornographic filth,’ and ‘CRT and LGBTQ books.’” [p. 10] Thus, they claimed that county officials had engaged in impermissible viewpoint discrimination by targeting books addressing race, sexuality, and social issues simply because certain officials and community members disagreed with their themes or messages.

The plaintiffs emphasized that such actions fell squarely within the constitutional prohibitions articulated in Board of Education v. Pico. They asserted that, under Pico, government entities could not “remove books for the purpose of restricting access to the political ideas or social perspectives discussed in them, when that action [was] motivated simply by the officials’ disapproval of the ideas involved.” [p. 26] Applying that standard, they argued that Llano County’s conduct, particularly its rapid response to citizen complaints and subsequent directives to purge specific titles, demonstrated an intent “to limit access to the viewpoints to which [local officials] objected.” [p. 69] The plaintiffs maintained that this constituted unconstitutional censorship, not routine library management.

Further, the plaintiffs rejected the characterization of their claim as an attempt to impose an “affirmative right to demand” that the government retain or purchase specific materials. Instead, they framed their argument as the assertion of a negative right, a shield against governmental suppression of disfavored ideas. The First Amendment did not require Llano County “to buy and shelve They Called Themselves the K.K.K.,” but it did prohibit the County “from removing [that book]…because it seeks to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’” [p. 25] In conclusion, the plaintiffs argued that the invocation of standard weeding policies such as CREW and MUSTIE was pretextual. They maintained that “the evidence shows Defendants targeted and removed books, including well-regarded, prize-winning books, based on complaints that the books were inappropriate.” [p. 68]

On the other hand, the defendants argued that the removal of the seventeen books from the Llano County Library System did not violate the First Amendment because library collection decisions, including both the acquisition and removal of materials, constituted an exercise of government speech. As they maintained, libraries necessarily engage in a selective, curatorial process that reflects professional judgment and institutional priorities, not a public forum for unrestricted expression. The defendants asserted that “[w]ith respect to the public library, the government speaks through its selection of which books to put on the shelves and which books to exclude.” [p. 4] They emphasized that, like a museum choosing artworks for display or a university setting curriculum, a library must determine what it “thinks is worth reading.” [p. 4] Thus, they contended that their actions were expressions of governmental discretion rather than viewpoint-based censorship, and consequently, they were not subject to First Amendment scrutiny.

Furthermore, the defendants denied that the removals were motivated by any intent to suppress particular ideas or viewpoints. They claimed that the challenged books were removed in accordance with the established CREW method, guided by the “MUSTIE” factors. Under this process, materials are regularly reviewed for accuracy, relevance, and physical condition. The defendants contended that this objective evaluation justified the removal of outdated or inappropriate materials and that the plaintiffs’ allegations of censorship relied on “speculation and disagreement over library management.” They maintained that no patron was denied access to the information itself, since the books remained publicly available through other channels, “online, from a bookstore, or borrowed from a friend,” [p. 5] and therefore no constitutional right had been infringed. In essence, they urged the Court to recognize that librarians and local officials retain broad discretion to curate collections without judicial interference.

The Court began by addressing the core constitutional question, i.e., whether the First Amendment’s Free Speech Clause allowed library patrons to challenge the government’s decision to remove books from a public library. Writing for the majority, Judge Stuart Kyle Duncan held that it did not. The Court reversed the district court’s preliminary injunction and rendered a judgment dismissing the plaintiffs’ Free Speech claims. It reasoned that the “right to receive information” recognized in certain Supreme Court decisions did not extend to compelling a public library to provide or maintain specific materials. The Court stated that the plaintiffs sought to transform precedent into “a brave new right to receive information from the government in the form of taxpayer-funded library books,” a right that the First Amendment does not acknowledge. The majority further explained that applying such a rule would create an unmanageable standard, forcing courts to make subjective determinations about what motives for book removal were constitutionally acceptable.

The Court undertook a detailed analysis of the history and scope of the “right to receive information.” It examined precedents including Martin v. City of Struthers, (1943), Lamont v. Postmaster General, (1965), Stanley v. Georgia, (1969), Kleindienst v. Mandel, (1972), and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, (1976). Each, the Court noted, recognized a negative right preventing the government from interfering with the exchange of private speech between willing speakers and listeners. But none, the Court emphasized, “suggested that the First Amendment obligates the government to provide information to anyone.” [p. 15] The majority distinguished the right to receive privately communicated ideas from an affirmative claim to government-provided materials. In the Court’s view, the plaintiffs’ claim turned that limited protection into a sweeping obligation for the government to furnish “information in the form of books, at public expense,” a concept foreign to the Constitution’s text and history.

The Court then turned to the precedents most relied upon by the plaintiffs, Board of Education v. Pico, (1982), and the Fifth Circuit’s own Campbell v. St. Tammany Parish School Board, (5th Cir. 1995). It held that both were misinterpreted and no longer controlling. The majority reaffirmed what it described as settled circuit law from Muir v. Alabama Educational Television Commission, (5th Cir. 1982)—namely that Pico was “highly fractured” and carried “no precedential value.” [p. 16] The majority reasoned that while the three justices in Pico endorsed a limited student right to challenge school library removals, a majority of the Court explicitly rejected the idea that the First Amendment imposed “any obligation upon the State to provide continuing access to particular books.” [p. 17] Because Campbell rested on Pico’s nonbinding plurality, the Fifth Circuit declared it wrongly decided and expressly overruled it. [p. 29] The majority stressed that overruling Campbell would not unsettle established law, noting that the case “has played no role in similar controversies in our circuit.” [p. 3]

The Court also emphasized the practical and doctrinal problems with recognizing a constitutional right to challenge library book removals. It warned that once such a right was acknowledged, “there is no logical reason why [plaintiffs] cannot contest purchases too.” [p. 20] The majority observed that the same reasoning that would forbid removals would also allow patrons to sue when libraries declined to acquire particular titles, or even demand increased library funding. It criticized the district court’s and prior panel’s proposed standards, which permitted book removals only for reasons such as inaccuracy, “pervasive vulgarity,” or “educational unsuitability,” as unworkable and arbitrary. [pp. 20–21] The Court used examples to illustrate this difficulty, such as the removal of It’s Perfectly Normal, a children’s sex-education book containing explicit illustrations, and a hypothetical involving the removal of “a book by a former Grand Wizard of the Ku Klux Klan.” [p. 22] The majority stated that under the plaintiffs’ theory, even such removals would violate the First Amendment, a result it called “astonishing” and “utter nonsense.” [p. 22] The Court reasoned that “if a library had to keep just any book in circulation, no matter how out-of-date, inaccurate, biased, vulgar, lurid, or silly, it would be a warehouse, not a library.” [p. 23]

Having rejected the First Amendment “right to receive information” claim, the Court proceeded to an independent ground for its decision: that library collection decisions are a form of government speech. Drawing upon Pleasant Grove City v. Summum, (2009), Walker v. Texas Division, Sons of Confederate Veterans, (2015), Johanns v. Livestock Marketing Association, (2005), and Shurtleff v. City of Boston, (2022), the Court held that when a library selects or removes books, it engages in expressive activity akin to a museum choosing which works of art to display. “With respect to the public library,” the Court wrote, “the government speaks through its selection of which books to put on the shelves and which books to exclude.” [p. 4] The library’s curated collection thus represented the government’s own message about what materials it deemed valuable or appropriate to offer, rather than a public forum for private expression. Because government speech is not subject to the Free Speech Clause, the Court concluded that the plaintiffs’ claims failed as a matter of law.

The Court closed by responding to the rhetorical framing advanced by the plaintiffs and amici, who had described the case as a “book ban” and warned of “pyres of burned books” and “totalitarian regimes.” [p. 5] The majority characterized those arguments as “over-caffeinated” and exaggerated, insisting that “no one is banning (or burning) books.” [p. 5] It noted that the removed titles remained readily available elsewhere, “online, from a bookstore, or borrowed from a friend,” and that Llano County had done nothing more than “decide which books they want in their collections,” something libraries “have been doing for two centuries.” [p. 5] The Court concluded that the Constitution does not require courts to supervise library curation or compel government entities to preserve disfavored viewpoints.

In conclusion, the Fifth Circuit therefore reversed the district court’s injunction, rendered a judgment dismissing the plaintiffs’ Free Speech claims, and remanded for proceedings consistent with its opinion.

Dissenting Opinion:

Judge Higginson, joined by Judges Wiener, Stewart, Southwick, Graves, Douglas, and Ramirez, delivered a dissenting opinion, asserting that the majority had “sanction[ed] government censorship in every section of every public library in our circuit.” The dissent contended that the First Amendment protected the right of public library patrons to access information and ideas, and that the government could not remove books “because it disagrees with the ideas they express.” In Judge Higginson’s view, the Llano County officials’ conduct—removing seventeen books following complaints about “LGBTQ,” “CRT,” and “pornographic” materials—constituted viewpoint discrimination in its most direct form. The dissent argued that public libraries, unlike government museums or advertising programs, had long served as “limited public forums” dedicated to the dissemination of ideas rather than the government’s own expression. Thus, their curation decisions were subject to First Amendment limits, consistent with the Supreme Court’s reasoning in Board of Education v. Pico, (1982), and the Fifth Circuit’s earlier decision in Campbell.

The dissent criticized the majority’s decision to overrule Campbell, calling it “a half-century regression” that discarded established constitutional protections for intellectual freedom in libraries. It explained that Campbell, grounded in Pico, provided a workable and constitutionally sound rule: a library could not remove books when its “substantial motivation” was “to deny access to ideas with which it disagrees.” [p. 70] Judge Higginson emphasized that this standard had guided library practice for nearly thirty years without difficulty and reflected a basic First Amendment principle against governmental orthodoxy. The dissent noted that Pico, though a plurality decision, remained a persuasive articulation of the constitutional limits on removing books from public institutions. While referring to Justice Brennan’s opinion in Pico, the dissent reiterated that local officials could not “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion” by purging materials that express dissenting viewpoints. [p. 71]

The dissent further rejected the majority’s classification of library collection decisions as government speech. Justice Higginson argued that, unlike the government’s “expressive acts” in Pleasant Grove City v. Summum, (2009) or Walker v. Texas Division, Sons of Confederate Veterans, (2015), libraries existed to facilitate private access to a diversity of viewpoints, not to speak on behalf of the government. In his view, the majority’s approach collapsed the distinction between curation and censorship by equating the removal of ideas from public access with the government’s own expression. The dissent emphasized that the library did not “speak” through the contents of individual books, observing that no reasonable reader would believe that reading Caste or Being Jazz meant reading a government message. Rather, libraries historically functioned as neutral repositories of knowledge and debate. Thus, subjecting their collections to political control, the dissent warned, imperiled the core democratic value of intellectual freedom.

In conclusion, the dissent denounced the majority’s tone and reasoning as trivializing the gravity of the case. It objected to the majority’s dismissal of concerns about “book bans” and “burnings” as “over-caffeinated arguments,” asserting that the decision “join[ed] the book burners” by allowing the government to suppress ideas under the guise of curation. [p. 90] Judge Higginson concluded that the First Amendment required courts to prevent local governments from using public libraries as “tools for ideological conformity.” He would have affirmed the district court’s injunction requiring Llano County to return the seventeen removed books to library shelves and to refrain from removing others pending final adjudication. In his words, the Constitution forbids what Llano County has done: silence disfavored ideas under the banner of public administration. [p. 93]

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