The following are summaries of selected civil opinions issued by the Fifth Circuit in May 2025. The summaries are overviews of particular aspects of the opinions; please review the entire opinions.
FIRST AMENDMENT: The Court rejected a right to receive information that would compel public libraries to keep or acquire books.
The en banc Fifth Circuit issued an opinion in Little v. Llano County, creating new precedent for challenges to the removal of books from public libraries. The court reversed a preliminary injunction against the actions of Llano County library officials and rendered judgment for the County and its officials.
The en banc majority held that public-library patrons possess no affirmative
First-Amendment right to receive information that would compel a public library to keep or acquire books, instead cabining the doctrine to negative restraints. In so holding, the Court overruled Campbell v. St. Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995), erasing 30-year-old authority ostensibly subjecting book removals to heightened judicial scrutiny. The Court also clarified that Supreme Court language in Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982), cannot support a so-called right to receive information because that fractured decision lacks a controlling opinion.
Elsewhere, the majority’s opinion also analyzed governmental speech and those who joined it would have found the dispute over book selection beyond the reach of the First Amendment. The opinion also found officials’ administration of that curation to be consistent with Supreme Court precedent and rejected reliance on libraries as ostensibly public fora, as library collections were distinct from library premises themselves. But this 25-page analysis of library curation as government speech secured only seven votes. Because it failed to garner majority support, it is not binding precedent—though lower courts within the Fifth Circuit remain free to follow it as persuasive authority.
On the other hand, the Court’s disposition and the remainder of its opinion are binding. Plaintiffs within the Fifth Circuit challenging public-library policy will no longer be able to rely on Campbell to invoke a “positive” right forcing libraries to retain titles and will have seek alternative constitutional or statutory theories. The absence of an affirmative right to receive information provides a strong defense for governmental defendants. Lower courts may also decide to follow the plurality’s government-speech rationale, providing public libraries curating their collections with an additional defense.
APPELLATE JURISDICTION: The Court overruled precedent barring appellate review of orders remanding cases to state court based on waiver.
The Fifth Circuit also issued an en banc ruling in Abraham Watkins v. Festeryga. This case overruled longstanding precedent creating a barrier to appellate review in certain cases removed from state court.
Since 1980, Fifth Circuit precedent had precluded review of remand orders based on waiver. See In re Weaver, 615 F.2d 919 (5th Cir. 1980). In overruling Weaver, the en banc Court has now rendered those orders reviewable within the Fifth Circuit.
The Court explained that failures to satisfy the federal removal statutes—for example, untimeliness, lack of diversity, or an insufficient amount in controversy—qualify as defects barring review. See 28 U.S.C. § 1447(c). Common-law waiver, on the other hand, does not. State-court participation in litigation may forfeit removal, but waiver is a judge-made doctrine. Waiver neither constitutes a Section 1447(c) “defect” nor vitiates federal subject-matter jurisdiction, so it cannot preclude an appeal. See 28 U.S.C. § 1447(d).
The en banc Court resolved this appeal on narrow grounds. Its holding restored appellate jurisdiction but did not reach other issues dispute by the parties, leaving diversity of citizenship and actual waiver to the original panel in the first instance. The ruling now brings the Fifth Circuit in line with the Seventh, Tenth, and Eleventh Circuits regarding appellate jurisdiction for waiver-based remand-order challenges.
MOOTNESS: A public university’s mid-litigation policy change in response to judicial pressure did not moot a request to enjoin that policy.
A Fifth Circuit panel (Ho, Duncan & Oldham, JJ.) issued an opinion on voluntary-cessation doctrine affecting suits against public bodies who change their disputed policies mid-litigation. This suit, Speech First, Inc. v. McCall, involved a bid to enjoin a harassment policy at Texas State University.
Reaffirming Speech First, Inc. v. Fenves, 979 F.3d 319 (5th Cir. 2020), the panel first held that organization members who self-censor in the face of a policy “targeting politically disfavored speech” have Article III standing. No additional proof of imminent enforcement is required.
The panel then clarified Fifth Circuit doctrine regarding assertions that voluntary cessation of a policy has rendered a dispute moot. The Court restated Fenves’s “stringent” three-factor indicia of a live controversy—(i) no binding commitment to avoid reenacting the policy, (ii) suspicious timing of the change, and (iii) the defendant’s continued defense of the old rule—and applied it to hold that the university’s mid-litigation policy rewrite was insufficient to moot a preliminary injunction. Here, judicial pressure, rather than spontaneous repentance, had prompted the change. That motivation “falls far short” of making the absence of future recurrence “absolutely clear.” Defendants that tweak policies mid-litigation will therefore face a heavy evidentiary burden (e.g., sworn declarations, formal rescission by governing boards) if they hope to moot judicial review.
Because the district court dismissed the requested injunction as moot without reaching the merits, the panel vacated and remanded for the district court to consider the preliminary-injunction motion in the first instance. The decision does not resolve the constitutionality of Texas State’s harassment code; that question—and the scope of any eventual injunction—remains open on remand, guided, but not constrained, by the panel’s procedural rulings.