STATEMENT: Rejecting Government Speech Doctrine in Public Libraries in Little v. Llano County

If the government doesn't like a book in the library for any reason, they can now remove it.

On May 24, 2025, in a sharply divided 10–7 decision, the Fifth Circuit Court of Appeals ruled that the government can restrict access to books in public libraries simply because it dislikes or disagrees with the content of those books.

The court ruled that the patrons of the Llano County Library have no First Amendment right to receive information in the form of public library books. In doing so, the court overturned long-standing precedent that prohibits viewpoint-based censorship in public libraries. Even more disturbingly, the ten-judge majority embraced the radical argument that public library collection decisions are a form of allowable government speech that is immune from constitutional scrutiny. EveryLibrary rejects this ruling and the dangerous, contradictory logic it relies upon.

As we have been saying since oral arguments last fall, Llano's public library is not a mouthpiece of the government. Public libraries are civic institutions created to uphold the public’s right to access information across a broad range of ideas. The assertion by the court that library collection decisions are expressive acts of the government, similar to the editorial decisions of a newspaper or the curatorial choices of a museum, distorts both constitutional precedent and the historic mission of public libraries in American civic life. By asserting that patrons can simply "buy the [missing] book elsewhere" or “borrow it from a friend,” the Court conflates the marketplace with the common good. It reveals an indifference to the lived reality of millions of Americans for whom public libraries are their only or primary means of access to books.

A Constitutional Misstep

In this ruling, a majority of the Fifth Circuit has embraced a doctrine that not only permits but also constitutionalizes the removal of books from public libraries by government officials for ideological reasons. This is government censorship in its plainest form. The Attorneys General and other amici who advocated for a new expansive interpretation of the Government Speech Doctrine are working to extend government control over what ideas are allowed in public libraries and in schools.

Under this ruling, local and state governments are newly empowered to purge libraries of ideas they disfavor. This sets a precedent permitting political orthodoxy to dictate public access, which should alarm every American, regardless of political affiliation. If this decision stands, no book in a public library is safe, and no curricular decision in K-12 will be free from political litmus tests.

Contradictions with Executive Order 14149 and Prior Rulings

This ruling stands in contrast to Executive Order 14149, "Restoring Freedom of Speech and Ending Federal Censorship," signed by President Trump on January 20, 2025. That Executive Order is intended to protect the speech rights of Americans from government suppression, explicitly prohibiting federal officials from coercing or influencing content decisions in ways that violate the First Amendment. That E.O. was largely issued in response to a case, Murthy v. Missouri (formerly Missouri v. Biden), in which the same Fifth Circuit decried government influence over social media content moderation. In its September 2023 ruling, the court found that Biden White House and federal agency officials likely coerced or significantly encouraged private platforms to remove content, violating users’ First Amendment rights. But in Little v. Llano County , the Fifth Circuit majority took the exact opposite position. It concluded that when local government officials remove books from a public library, that act constitutes protected government speech.

The contradiction here is staggering. When the federal government pressures private platforms to remove misinformation, the Fifth Circuit cries foul. But when a local government directly and unilaterally strips public library shelves of books based on viewpoint and ideology, the court not only permits it but celebrates it as government expression. Suddenly, censorship isn’t a violation of the First Amendment; it is the right of local officials.

This flip-flop is particularly ironic because the plaintiff in Missouri v. Biden, the Attorney General of Missouri, joined an amicus brief in favor of Llano County’s actions. They argued that local governments should be allowed to impose their own ideological preferences on public library collections through the Government Speech Doctrine. Along with the Florida Attorney General and others, they argued against government speech when it comes from Washington, D.C., but in favor of it when it comes from Llano County, Texas.

Public Accommodations and the Right to Be Represented on the Shelf

The First Amendment should not be deployed in ideological battles. It exists to protect everyone’s right to read, speak, and think freely. The Fifth Circuit’s decision in Little v. Llano County speaks narrowly to the Free Speech Clause of the First Amendment. In a footnote, the court concedes that other constitutional protections may still apply, writing: “We express no opinion on whether a public library’s removal of books can be challenged under other parts of the Constitution.” That quiet acknowledgment is critical.

While the plaintiffs in Little initially alleged a Fourteenth Amendment due process claim, the lower court chose not to rely on it when issuing a preliminary injunction, and therefore it was not addressed by the Fifth Circuit on appeal. But this omission should not be mistaken for a judgment. In fact, it raises an important question: Was the lower court correct to disregard the Fourteenth Amendment as a basis for protecting patrons from ideologically motivated censorship?

Public libraries are places of public accommodation funded by and for the public good. When those institutions remove books based on race, gender, religion, disability, or other protected characteristics or erase perspectives linked to those identities, it may not only violate the First Amendment but also implicate the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment. Discriminatory exclusion need not take the form of a locked door; it can also take the form of a missing book. In this context, civil rights statutes provide an additional and underutilized path for justice.

Under the Civil Rights Act of 1964, places of public accommodation and the government itself are prohibited from denying access to services and benefits on the basis of race, color, religion, sex, or national origin. If the selective removal of materials disproportionately impacts protected groups, these laws may provide enforceable protections that operate independently of the First Amendment.

That is why EveryLibrary supports the Libraries for All Act, a statutory framework that codifies the principle that public libraries must have collection development policies that reflect and support the communities they serve, not merely the views of those in power. Just as no one should be turned away at the door of a public institution, no one should be erased from its shelves.

EveryLibrary’s vision for a Libraries for All Act, which has passed in Delaware and Vermont, affirms that public libraries are not just venues for free speech, they are civil rights enactors. The Fifth Circuit’s endorsement of the Government Speech Doctrine in this context creates a shield for viewpoint-based censorship masquerading as administrative decisions. But civil rights law shows us that intent matters, and impact matters. A pattern of removals targeting particular communities should be seen not as a neutral exercise of discretion, but as a discriminatory practice in violation of the principles of equal protection and inclusion.

What Comes Next

Public libraries are 10th Amendment institutions that are enactors of constitutional provisions and state laws. In the wake of this ruling, we reaffirm the need for a state-by-state legislative frameworks, grounded in First Amendment principles and public accommodation law, that make it clear that libraries must serve all people, represent all communities, and reject censorship that targets identity, belief, or viewpoint. Free speech and civil rights are not separable in libraries.

The Fifth Circuit’s ruling conflicts with prior Supreme Court decisions and has created a clear circuit split with the Eighth Circuit (in Reynolds). If allowed to stand, this decision invites political partisans across the country to impose their ideology through the selective curation and removal of public information, unchecked by the Constitution. We call on legal advocates, librarians, publishers, educators, and the public to demand better.

Libraries cannot be allowed to become instruments of government propaganda. They are one of the last remaining institutions where Americans can freely encounter ideas without economic or ideological gatekeeping. That role must be protected, not politicized. EveryLibrary will stand with librarians, readers, and constitutional advocates to challenge this ruling and its implications at every level.