Texas Library Must Reshelve Controversial Books, 5th Cir. Says

A Texas public library must reshelve eight books, including LGBTQ+, sex ed, and racism topics, it removed from circulation, after a ruling by a hotly divided federal appeals court panel.

The US Court of Appeals for the Fifth Circuit, known for its slate of conservative justices, on Thursday found the First Amendment rights of public library patrons limits which books libraries are allowed to remove based on objections to the book’s content.

The court modified, but largely upheld, a preliminary injunction granted in March 2023 by Judge Robert Pitman of the US District Court for the Western District of Texas, who had ordered the library to put the books back into general circulation.

But in a strongly worded dissent, Judge Stuart Kyle Duncan, a Trump appointee, accused his two colleagues on the panel of creating a “train wreck” of rules to determine when a library can and can’t remove books.

“And who will apply these rules?,” Duncan said. “Federal judges, naturally. You’ve heard of the Soup Nazi? Say hello to the Federal Library Police.”

He argued that libraries’ decisions about which books to keep and remove are protected government speech.

Leila Green Little and six others sued Llano County Library System and county officials in 2022. The patrons said removal of the books violated their First Amendment right to receive information.

The books include “Caste: The Origins of Our Discontent” by Isabel Wilkerson; “Being Jazz: My Life as a (Transgender) Teen” by Jazz Jennings; books related to sex education and bodily functions including “It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health” by Robie Harris; and a series of children’s books that make jokes about flatulence.

The majority opinion, authored by Judge Jacques L. Wiener, said the district court came to the reasonable conclusion that the defendants targeted and removed books—including well-regarded, prize-winning books—based on complaints that the books were inappropriate.

Judge Leslie H. Southwick concurred with Wiener, but found that the library is allowed to remove three of the books at issue.

Major US publishers, free-speech groups, and library associations submitted friend-of-court briefs backing the patrons.

Legal Challenges Increasing

The Llano County suit is part of a growing number of lawsuits challenging library book bans or restrictive policies.

In December last year, a federal judge blocked enforcement of an Iowa law that requires books to be removed from public school libraries if they contain a description of a sex act.

A panel of Fifth Circuit judges heard oral arguments in November in a case challenging a Texas law that requires booksellers to assign sex-content rating to titles sold to public schools.

In September, Arkansas library patrons advanced their suit against a county library system that allegedly infringed their First Amendment rights by moving kids’ books with LGBTQ+ themes from the children’s area into a special section where they can only be accessed with adult supervision.

An Arkansas law making it a crime for librarians and book sellers to make books deemed “harmful to minors” available to them was blocked in July by a federal judge while a constitutional challenge proceeds.

The American Library Association recently reported preliminary data showing a record surge of challenges in 2023, the vast majority of which involve books written by or about a person of color or a member of the LGBTQ+ community.

PEN America, a group dedicated to preservation of free expression, found 3,362 instances of individual books banned, affecting 1,557 titles, in the 2022-2023 school year. This represents an increase of 33% from the 2021-22 school year, it said.

BraunHagey & Borden LLP and Botkin Chiarello Calaf PLLC represent the plaintiffs. Jonathan F. Mitchell of Austin represents the library and officials.

The case is Little v. Llano County, 5th Cir., No. 23-50224, 6/6/24.