HarperCollins, Scholastic Back Texas Patrons in Book Ban Appeal

“For nearly half a century,” courts have recognized that book bans are unconstitutional, major US publishers including HarperCollins Publishers LLC, Penguin Random House LLC, and Scholastic Inc., have told a US appeals court.

Those companies and others, plus the American Association of Publishers, are backing patrons in a lawsuit challenging the sequester of 17 titles by the Llano County, Texas, public library. The plaintiffs allege the books—many of which address racism and LGBTQ+ themes—were unlawfully placed behind a desk in an unpublicized collection because officials disagreed with their content and viewpoints.

“The First Amendment is neither ‘woke’ nor ‘anti-woke,’” they said in a filing to the US Court of Appeals for the Fifth Circuit. “It protects the right of all Americans to access literary works across the political, ideological, and experiential spectrum, without government violation.”

Their June 2 filing is one of three briefs by publishers, library associations, and free speech groups supporting the plaintiffs.

The lawsuit filed by Leila Green Little and other patrons against Llano County last year is one of a growing number of legal challenges that coincide with an uptick in school book bans. PEN America, a group dedicated to preservation of free expression, documented 1,477 instances of individual books banned, affecting 874 titles, during the first half of the 2022-23 school year. That’s an increase of 28% over January-June 2022, the group said.

Books pulled from general circulation in Llano 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.

Reshelving Order

In March, Judge Robert W. Pitman of the US District Court for the Western District of Texas in Austin ordered the books back onto shelves while the lawsuit proceeds.

The defendants have appealed that order, saying the plaintiffs aren’t suffering a violation of their constitutional right to receive information, and can’t show irreparable harm because they can still access the books without a preliminary injunction. The officials also say the books were “weeded,” a standard practice for culling books that are worn or outdated.

However, the plaintiffs say Pitman correctly found their suit is likely to succeed.

Historically, courts have ordered banned books by Harper Lee, J.D. Salinger, and Kurt Vonnegut returned to library shelves, the publishers said in their friend-of-the court brief. “With the benefit of history, those court decisions have been validated, and concerns over ‘dangerous’ books have been exposed as unfounded,” the publishers said.

The real danger here isn’t in the books, “but in the infringement of First Amendment rights, including the rights of library patrons to read these books and decide for themselves the merits of their views and themes,” the brief said.

Weeding ‘Rightly Rejected’

The district court rightly rejected the defendants’ contention that the books were weeded, the Freedom to Read Foundation, the American Library Association, and the Texas Library association said.

None of the 17 books had been “slated” for weeding review before community members complained about them, and many other books eligible for weeding weren’t removed, the foundation and library groups said.

The Foundation for Individual Rights and Expression said in a separate filing that the government may choose to establish a library—or not—but “that power does not authorize transient officeholders to impose their personal political, religious, or philosophical preferences on the community.”

Jackson Walker LLP represents the American Association of Publishers, Penguin Random House and other publishers. Frost Brown Todd LLP represents the Freedom to Read Foundation, Texas Library Association, and American Library Association. Foundation for Individual Rights and Expression attorneys represent the organization.

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, amicus briefs 6/2/23.