United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED May 23, 2025 No. 23-50224 Lyle W. Cayce ____________ Clerk Leila Green Little; Jeanne Puryear; Kathy Kennedy; Rebecca Jones; Richard Day; Cynthia Waring; Diane Moster,

Plaintiffs—Appellees,

versus Llano County; Ron Cunningham, in his official capacity as Llano County Judge; Jerry Don Moss, in his official capacity as Llano County Commissioner; Peter Jones, in his official capacity as Llano County Commissioner; Mike Sandoval, in his official capacity as Llano County Commissioner; Linda Raschke, in her official capacity as Llano County Commissioner; Amber Milum, in her official capacity as Llano County Library System Director,

Defendants—Appellants. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 1:22-CV-424 ______________________________ Before Elrod, Chief Judge, and Jones, Smith, Wiener, Stewart, Southwick, Haynes, Graves, Higginson, Willett, Ho, Case: 23-50224 Document: 337-1 Page: 2 Date Filed: 05/23/2025

No. 23-50224

Duncan, Engelhardt, Oldham, Wilson, Douglas, and Ramirez, Circuit Judges. Stuart Kyle Duncan, Circuit Judge:† INTRODUCTION We consider whether someone may challenge a public library’s removal of books as violating the Free Speech Clause. Patrons of a county library in Texas sued the librarian and other officials, alleging they removed 17 books because of their treatment of racial and sexual themes. The district court ruled that defendants abridged plaintiffs’ “right to receive information” under the Free Speech Clause and ordered the books returned to the shelves. On appeal, a divided panel of our court affirmed in part. We granted en banc rehearing. We now reverse the preliminary injunction and render judgment dismissing the Free Speech claims. We do so for two separate reasons. First, plaintiffs cannot invoke a right to receive information to challenge a library’s removal of books. Yes, Supreme Court precedent sometimes protects one’s right to receive someone else’s speech. But plaintiffs would transform that precedent into a brave new right to receive information from the government in the form of taxpayer-funded library books. The First Amendment acknowledges no such right. That is a relief, because trying to apply it would be a nightmare. How would judges decide when removing a book is forbidden? No one in this

_____________________  Judge Richman was recused and did not participate in the decision. † Ten judges join Parts I–III of this opinion and the judgment (Chief Judge Elrod and Judges Jones, Smith, Haynes, Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson). Seven of those judges join the opinion in full (Judge Jones, Smith, Willett, Ho, Duncan, Engelhardt, and Oldham).

2 Case: 23-50224 Document: 337-1 Page: 3 Date Filed: 05/23/2025

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case—not plaintiffs, nor the district court, nor the panel—can agree on a standard. May a library remove a book because it dislikes its ideas? Because it finds the book vulgar? Sexist? Inaccurate? Outdated? Poorly written? Heaven knows. T