Fifth Circuit Holds That Government Speech Doctrine Applies To Public Library Book Removals, Creating Circuit Split With Eighth Circuit

On May 23, 2025, in Little v. Llano County, ¹ an en banc U.S. Court of Appeals for the Fifth Circuit dismissed First Amendment claims challenging a Llano County, Texas public library's decision to remove 17 books due to complaints about their contents, and reversed a preliminary injunction requiring that certain of those books be reshelved. The Fifth Circuit rejected plaintiffs' arguments that the removal violated their First Amendment right to receive information and held that a public library's collection, curation, and presentment of third-party materials is protected "government speech" that is not subject to First Amendment challenge. In so holding, the Fifth Circuit overturned an earlier Fifth Circuit decision to the contrary² and created a split with the Eighth Circuit, which held in GLBT Youth in Iowa Schools Task Force v. Reynolds³ that an Iowa statute requiring that books in public school libraries be "age-appropriate" did not implicate the government speech doctrine. In Little, the Fifth Circuit explicitly declined to follow Reynolds and found instead that the government engaged in its own "expressive activity" when removing the library books.

The creation of the circuit split is likely to result in an application for Supreme Court review.

I. GLBT Youth in Iowa Schools Task Force v. Reynolds (8th Cir.)

Reynolds concerned an Iowa statute that required public school libraries to remove books that were not "ageappropriate."⁴ Plaintiffs, including publishers, authors, and students, alleged that the statute was overbroad and discriminated based on content and viewpoint in violation of the First Amendment.⁵ Defendants argued that the First Amendment did not apply because the book restrictions constituted protected government speech.⁶ The U.S. District Court for the Southern District of Iowa enjoined enforcement of the statute's restrictions on non-"age-appropriate" books from school libraries, finding that the restrictions were not a form of government speech, and that the restrictions violated the First Amendment by employing "broad and inflexible" definitions that encompassed "an extraordinary range of literature."⁷

Although the Eighth Circuit vacated the preliminary injunction entered by the district court––finding that the court engaged in a "flawed analysis" of the First Amendment test for facial validity under Moody v. NetChoice, LLC⁸––it agreed with the district court's holding that the statute did not implicate the government speech doctrine.⁹ The Eighth Circuit explained that the government speech doctrine, under which the First Amendment does not impose a "requirement of viewpoint-neutrality on government speech," does not extend to the "placement and removal of books in public school libraries."¹⁰ In reaching its conclusion, the Eighth Circuit conducted the "holistic inquiry" outlined by the Supreme Court in Shurtleff v. Boston, which considers, in determining whether the government "intends to speak for itself or to regulate private expression," (1) the history of the expression at issue, (2) whether the public would perceive the expression as the government speaking, and (3) the extent to which the government has actively shaped or controlled the expression.¹¹

First, the Eighth Circuit identified the expression at issue as "the placement and removal of books in public school libraries," dismissing the defendants' comparison to Pleasant Grove City v. Summum, in which the Supreme Court held that the government speech doctrine applied to the city's selection of monuments for a public park, where the city decided to display a monument of the Ten Commandments, but declined to display a monument from another religious organization.¹² The Eighth Circuit explained that public school libraries do not share the same characteristics as park monuments, which governments "have used to speak to the public since ancient times."¹³

Second, the Eighth Circuit determined that the public would likely not perceive the removal of books to be the government speaking.¹⁴ If a library's inclusion of books ranging from The Prince to Mein Kampf, as is "routine," were government speech, the government would be "babbling prodigiously and incoherently."¹⁵ Third, the Eighth Circuit concluded that Iowa has not "historically asserted extensive control over removing books from public school libraries,"¹⁶ which further supported the conclusion that the government speech doctrine did not apply. The Eighth Circuit concluded its government speech analysis by emphasizing the Supreme Court's "directive to 'exercise great caution before extending our government-speech precedents.'"¹⁷

II. Little v. Llano County (5th Cir.)

Little I – Preliminary Injuction and Motions to Dismiss

In 2021, the Llano County, Texas library system director removed 17 children and young adult books from the shelves of the Llano branch library due to complaints about their contents. The books dealt with topics such as puberty, the history of racism, sexual orientation, and gender identity. County commissioners had instructed the library system director to remove books with "sexual activity or questionable nudity," among others.¹⁸

In April 2022, seven patrons of the Llano County library sued the county, the library system director, and members of the county's commissioners court and library advisory board in the U.S. District Court for the Western District of Texas. Plaintiffs challenged the book removals as viewpoint- and content-based restrictions on their First Amendment rights to "access and receive information and ideas."¹⁹ In May 2022, plaintiffs moved for a preliminary injunction to require the defendants to return the books to the library shelves.²⁰ Defendants subsequently moved to dismiss in June 2022, asserting that the complaint failed to state a claim because the library engaged in government speech by deciding to remove certain titles, thus precluding a violation of the plaintiffs' First Amendment rights.²¹

On March 30, 2023, the district court partially denied the defendants' motion to dismiss and partially granted the plaintiffs' motion for a preliminary injunction. The court rejected defendants' government speech argument, distinguishing between a library's "initial selection" decisions, which may be government speech, and its "removal" decisions, which are not.²² The court relied on Campbell v. St. Tammany Parish School Board, in which the Fifth Circuit held that a public school library's removal decisions are subject to First Amendment scrutiny and are evaluated based on whether the government's "substantial motivation in arriving at the removal decision"...