Fifth Circuit Handles A Library Book Removal Case And Makes A Mess Of It

There’s a lot of book banning going on right now in the Land of the Free. It’s mostly localized to certain areas of the country — states and cities overseen by bigots who finally feel they’re allowed to let their freak flag fly (instead of, or on top of the American flag which may or may not be right-side up, depending on recent jury decisions elsewhere in the country).

While it may seem like a groundswell movement seeking to make libraries safe places for certain thoughts, it’s usually just the overly enthusiastic efforts of a few people with massive ideological axes to grind. That’s why even Florida governor Ron DeSantis, who hasn’t met an unconstitutional bill he doesn’t like, had to dial back his state’s book ban-enabling law.

Texas is pretty much like Florida. It’s led by people who cater to the worst of their voting bases, allowing bigotry to run wild while pretending they’re doing this to protect all of their constituents, rather than just appeasing their most hateful ones.

Getting books pulled from libraries in Llano County, Texas led to litigation. And that litigation has led to this wild decision [PDF] from the Fifth Circuit Appeals Court. The Fifth Circuit is often terrible when it comes to the First Amendment. This one, however, gets its mostly right, while still messing things up enough that it’s not going to prevent further stupidity from citizens armed with ideological axes or the libraries that somehow believe these people have opinions worth respecting.

Here’s how this all started:

In August 2021, Llano resident Rochelle Wells, together with Eva Carter and Jo Ares, complained to [county Judge Ron] Cunningham about “pornographic and overtly sexual books in the library’s children’s section.” They were specifically concerned with several books about “butts and farts.” Wells had been checking out those books continuously for months to prevent others from accessing them. As library director, Milum had initially ordered those books because she thought, based on her training, that they were age appropriate. Because of the complaints, Cunningham told Milum to remove the books from the shelves. Commissioner Jerry Don Moss also requested that Milum remove the books, telling her that the next step would be going to court, which would lead to bad publicity, and advising her to “pick her battles.” She followed those instructions and removed the “butt and fart” books from both the library shelves and the catalog.

A few months later, in response to further complaints, [Judge ]Cunningham directed Milum to immediately pull all books from the shelves that “depict any type of sexual activity or questionable nudity.” That direction came via a forwarded email that Cunningham had received from a constituent named Bonnie Wallace. Wallace had sent Cunningham a list of books in the Llano County library system that appeared on Texas Representative Matt Krause’s list of objectionable material, referring to the books as “pornographic filth.” After receiving that list (“the Wallace list”) from Cunningham, Milum pulled the books from the shelves, allegedly to “weed” them based on the traditional MUSTIE factors. Milum testified that she would not have pulled the books had it not been for her receipt of the Wallace list. In fact, she had pulled no other books for review during that time period. By the end of 2021, seventeen books—all on the Wallace List—had been removed from the Llano County library system entirely.

“Butt and fart” may have gotten the foot in the door, but the real point was to remove books with more artistic merit, ones that made the requesters more unhappy than those that just contained juvenile humor. Here’s what was removed from the library, due to the combined actions of a judge, a commissioner, and three residents who thought they should get to decide what everyone else reads.

Seven “butt and fart” books, with titles like I Broke My Butt! and Larry the Farting Leprechaun;

Four young adult books touching on sexuality and homosexuality, such as Gabi, a Girl in Pieces;

Being Jazz: My Life as a (Transgender) Teen and Freakboy, both centering on gender identity and dysphoria;

Caste and They Called Themselves the K.K.K., two books about the history of racism in the United States;

Well-known picture book, In the Night Kitchen by Maurice Sendak, which contains cartoon drawings of a naked child; and

It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health.

Somehow there are always books about racism in the US on these lists. The books targeting LGBTQ+ reading material is par for the course as well.

Even more bullshit followed. The original library board was disbanded and reformed. The library director (Amber Milum) was prohibited from attending these meetings and forced to ask permission from the new board to purchase any new books. Copies of the books ordered off the shelves were donated to the library by the defendants’ attorney following the lawsuit but these books were never placed on the shelves or listed in the library’s catalog.

It should be pretty clear that everyone involved in the removal of these books was a government employee, running from the county judge to the county commissioner to the library director. As such, removing these books (which did not fall under any definition of obscenity) was a clear First Amendment violation, given that the books were targeted for their content and viewpoint.

So, it should have been an easy decision. The books should have gone back on the shelves and the defendants’ enjoined from engaging in this sort of unconstitutional stupidity ever again. There’s an injunction in here, but it gets complicated because this particular government agency feels it should also be able to engage in content-based restrictions.

While it does acknowledge that curation is part of a librarian’s job (to remove damaged books, older versions, or books rarely, if ever, checked out by patrons), this must be balanced by the presumptive First Amendment right of access to information. In this case, the library board (along with a local judge) decided to remove only certain content that a couple of residents complained about — content the board clearly didn’t care for either.

[W]e agree that library personnel must necessarily consider content in curating a collection. However, the Court has nowhere held that the government may make these decisions based solely on the intent to deprive the public of access to ideas with which it disagrees. That would violate the First Amendment and entirely shield all collection decisions from challenge.

But the Fifth Circuit doesn’t stop there. It modified the lower court’s injunction, which ordered the county library to return all books removed due to “viewpoint or content,” including the books specifically targeted by the complaining residents. It also forbade the library from removing any books for any reason until this case was resolved.

The Fifth says this goes too far. It limits the return order to the only eight of the 17 listed earlier and gives the library discretion to remove others, so long as those removals aren’t content-based. But that’s not much better. That’s the Fifth deciding what can or can’t be read based on its own interpretations of the contested books’ content.

The concurrence points this out. But, weirdly, it also suggests the majority didn’t go far enough in declaring some books unworthy of library placement due to their lack of… I guess… artistic merit? (Emphasis in the original.)

I find that some of the removals here satisfy the Campbell standard. The district court found that all removals were unconstitutional, stating: “Plaintiffs have clearly shown that Defendants’ decisions were likely motivated by a desire to limit access to the viewpoints to which Wallace and Wells objected.”

I disagree, first, because not all of the books express an “idea” or “viewpoint” in the sense required by the caselaw. I am referring to the items we have needed to label for clarity as the “butt and fart books.” Viewpoints and ideas are few in number in a book titled “Gary the Goose and His Gas on the Loose” — only juvenile, flatulent humor. 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.

Wow. Judge Leslie Southwick read the majority decision and decided to compose a concurrence that basically says: “What if… and hear me out… some books are just too stupid to be made available to the public?” The judge says these books have no “ideas with which to disagree.” Maybe so, but someone still wanted them removed because of their content, and multiple government employees took actions to make that happen. That’s what needs to be prevented, and it’s not up to judges to decide whether or not a book they wouldn’t particularly like can be accessed by others.

The concurrence then goes further to suggest that as long as anyone can imagine a reason to remove a book, it might be constitutional so long as the presiding judge thinks the books are too stupid to be given First Amendment protection.

Wallace and Wells objected to the butt and fart books on the basis that they (1) promoted grooming” of minors and (2) were sexually explicit. These objections do not convert the resulting removals into viewpoint-based decisions.

Somehow, the judge has words to say about the juvenile nature of the “butt and fart” books but nothing to say about the ridiculousness of the assertions made by the Llano County residents who sought to have these books removed from the library.

To that end, the concurrence says the more limited book return order by the Appeals Court is better of the two (the lower court ordered the return of all books to the library’s shelves and catalog), but that it would have been better if the Fifth Circuit had disallowed the return of even more of the contested books.

I conclude that the plaintiffs have not met their burden to show a likelihood of success on the merits of their constitutional challenges to the removal of the butt and fart books, In the Night Kitchen, and It’s Perfectly Normal. The plaintiffs are, therefore, not entitled to a preliminary injunction requiring the return of those books to the Llano County Libraries.

Then the dissent shows up to say everything above is wrong. It calls the rest of the judges (on both levels) the “library police.” And not without reason. Two consecutive courts have decided what can and can’t be returned to the library. The lower court said all of the books. The Appeals Court said about half of them. The concurrence says even fewer books are worth of library placement.

Each judge provided their own reason and citations supporting their conclusions. But, as the dissent points out, they’re often contradictory. On one hand, the courts agreed libraries could still curate their collections. But they disagreed as to how this curation could be accomplished under the Constitution. It’s a complete mess and this decision does nothing to clear it up:

[E]ven assuming courts can police libraries’ collection decisions, what standard would they apply? The only one proposed by Plaintiffs (and the district court) is to forbid “content or viewpoint discrimination.” As shown, that is a non-starter. It would leave a librarian powerless to remove from the shelves all manner of bigoted screeds. It would perversely require librarians to “balance” legitimate scientific volumes with reams of quackery. It would literally bar a library from stopping a subscription to Penthouse magazine. In short, it is a standard in open war with the very concept of a library, whose mission is to assess materials precisely in terms of content and viewpoint and thereby “separate out the gold from the garbage.” (quoting Katz, supra, at 6).

Defendants’ counterproposal is that a library’s collection decisions must be “rational.” That is more modest than Plaintiffs’ proposal, but no more helpful. After all, what constitutes an “irrational” collection decision? Featuring the romantic works of E.L. James? Classifying The DaVinci Code as “Literature”? The mind reels at judges concocting “standards” for adjudicating such insoluble subjectivities. It would be no different than judges opining on whether the NEA should fund the latest “re-imagining” of Hamlet. Or whether a public television station should air old episodes of The Joy of Painting instead of the new season of Call The Midwife. Those are matters of esthetic, social, and moral judgment and no judge-made test can possibly say whether their resolution in any given case was “rational.” […] The same goes for a public library’s decision about which books to feature and which books to exclude.

But does the dissent have a solution? Yes. But it’s not all that much better. It says library curation is government speech, which is not subject to the Free Speech Clause. The government may not silence the speech of citizens, but it’s not required to express every idea constituents want it to express either. Libraries should be free to curate content, even when that curation effort is guided by bigots who just want certain content taken out of the public’s hands.

The dissent says this is not a great outcome, but it’s ok. And if people like the plaintiffs want to see something better from public officials and government employees, they’re free to load up on better public officials.

Energized voters can bend public officials to their will, as this case amply shows. Plaintiffs’ lamentations to the contrary, that does not amount to “book banning.” It means that a local government heeded its citizens. True, the upshot is that Llano County’s books may differ from the books in Travis or Harris County. But variety is a feature of our system, not a bug.

Which is probably as close to right as it gets. We want libraries to fight back when faced with removal requests, but if they’re expected to follow an arbitrary list of restrictions on curation, they’re more likely to comply with the type of people who like to demand the removal of books.

And it’s not like other cases we’ve dealt with involving public libraries and the books they can carry. Two other state laws ruled unconstitutional involved unconstitutional acts by other government bodies. In Arkansas, a new law would have allowed the state to bring criminal charges against librarians for “providing harmful materials to minors.” Meanwhile, back in Texas, the new law would have forced private companies (book publishers) to create and post “sexual content ratings” for any books sold to libraries or schools.

Those are both very different things than what’s being discussed here. And given the facts of this case, there’s no perfect answer. Curation is a two-way street. To be free to retain books in the face of bogus removal efforts, librarians must also be free to remove them when the circumstances warrant that. The problem here is the local government officials with the power to force the library to comply decided to side with people motivated by irrational hate. And the only way to fix that is to remove officials who think the worst constituents should be given the most credence.