The 5th Circuit (the federal appeals court that includes Texas) went off the rails and against clear Supreme Court First Amendment precedent, and authorized viewpoint discrimination in public libraries. The theory is that public libraries’ collections constitute “government speech” and therefore the government can say what it wants to say. The government speech doctrine has existed for a while, but right-wingers have been trying to use it against library collections more recently.
The plaintiffs in this case might try to appeal, although the Supreme Court does not have to take the appeal. The issue is a direct challenge to Supreme Court precedent on the First Amendment, and is inconsistent with every other such case, so there is already a circuit split, which is a key reason why the Supreme Court takes cases. They may just let it simmer, though, and wait for more cases, or let it go. I do imagine, if they appeal, there are at least three justices who would want to take it. Four justices need to agree to take a case, so we’ll see.
You might be wondering: Government speech! Does that just affect public libraries? No. No, it does not. There is no coherent rationale in which public library collections constitute government speech and university libraries do not. (There is also no coherent rationale in which this opinion makes sense, though, so ends-driven judges will continue to do what they want.) So, watch for this doctrine to be deployed in university library collections in red states.
Further reading:
- Little v. Llano County, case 23-50224 (5th Cir. May 23, 2025) (en banc)
- Kyle Courtney, Books Were Harmed in the Making of This Opinion
- EveryLibrary, The Government Can Now Ban Books It Dislikes