A divided Fifth Circuit panel has determined the Llano County library must put back in circulation eight of 17 books that had been previously removed because of objections to their contents.
The ruling was issued Thursday in the case brought by seven library system patrons who alleged that county employees’ removal of the books violated their First Amendment right to “access information and ideas.”
Judge Jacques L. Wiener Jr. wrote the majority opinion, in which Judge Leslie H. Southwick concurred in part. Judge Wiener hit back at dissenting Judge Stuart Kyle Duncan’s invocation of Stephen King in calling the other judges on the panel “library police.”
“But King, a well-known free speech activist, would surely be horrified to see how his words are being twisted in service of censorship,” Judge Wiener wrote. “Per King: ‘As a nation, we’ve been through too many fights to preserve our rights of free thought to let them go just because some prude with a highlighter doesn’t approve of them.’ Defendants and their highlighters are the true library police.”
“Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree,” he wrote. “Because that is apparently what occurred in Llano County, plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment claim, as well as the remaining factors required for preliminary injunctive relief.”
U.S. District Judge Robert L. Pitman had granted the patrons an injunction that required the 17 books be reshelved and prohibited the county from removing any other books while this case was being litigated. The majority narrowed the scope of the injunction to only order reshelving of eight of the books.
The books at issue in the case include seven the court refers to as “butt and fart” books, with titles like “I Broke My Butt!” and “Larry the Farting Leprechaun,” four young adult books dealing with sexuality, a book about gender identity and dysphoria, two books about the history of racism in America, one children’s book that contains a cartoon drawing of a naked child and one sex education book.
Judge Southwick took issue in particular with the “butt and fart” books, which were not ordered to be reshelved under the majority’s ruling.
“Viewpoints and ideas are few in number in a book titled ‘Gary the Goose and His Gas on the Loose’ — only juvenile, flatulent humor,” Judge Southwick wrote. “Perhaps a librarian selected the book believing the juvenile content would encourage juveniles to read. Even if that is so, I do not find those books were removed on the basis of a dislike for the ideas within them when it has not been shown the books contain any ideas with which to disagree.”
Judge Stuart Kyle Duncan wrote in his 45-page dissent that under the majority’s reasoning, the First Amendment would prohibit a librarian from removing from shelves the 1899 book “Little Black Sambo,” a children’s book rife with racial stereotypes, or the 1943 book “Sex Today in Wedded Life,” which instructs wives not to bother their husbands with their own worries, and instead focus on their most important job: to “build up and maintain his ego.”
“You may be thinking: surely plaintiffs would not push this idea that far! You would be wrong. At oral argument, plaintiffs made their position crystal clear,” Judge Duncan wrote. “Counsel was asked this hypothetical:
Q: Let’s say a new librarian comes in and discovers on the shelves a book by a former Grand Wizard of the Ku Klux Klan. The book explains why black people are an inferior race. So she removes it from the shelves. Is that viewpoint discrimination? And if so is that unconstitutional?
A: In your hypothetical, Judge Duncan, why did she remove it from the shelves?
Q: Because she found that idea offensive. That black people are inferior.
A: If that was her substantial or … decisive motivation, then yes, your honor.
Q: Really? Really?
“This position is absurd. Yet, incredibly, the majority agrees with it.”
Judge Duncan also argued that the rules established by the majority “cannot be applied coherently,” as evidenced by the disagreement between Judge Wiener and Judge Southwick about how many of the 17 books at issue must be restored to library shelves.
“Judge Wiener is confident all 17 books must be restored to the shelves because the evidence shows the ‘substantial’ motive for removing them was to ‘deny access’ to disfavored ideas,” he wrote. “Judge Southwick is less sure. He believes the rules allow the butt and fart books to be removed because he doubts they ‘contain any ideas with which to disagree.’”
The plaintiffs are represented by Katherine Patrice Chiarello of Botkin Chiarello Calaf.
Llano County is represented by former Texas solicitor general Jonathan F. Mitchell of Mitchell Law.
The case number is 23-50224.