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Friday, June 7, 2024

Court of Appeals Upholds Injunction Against a Library's Removal of Controversial Books

The Fifth Circuit Court of Appeals issued an opinion on June 6th upholding a court's issuance of a preliminary injunction against a library in a First Amendment challenge to the library's removal of controversial books. Little, et al. v. Llano County, et al..

In 2021, Llano County, Texas residents contacted the county commissioners to complain about books in the children's section of the library that they claimed were pornographic and overtly sexual. According to the court opinion, the residents were specifically concerned with several books about “butts and farts." The chair of the county commissioners and another member of that body directed the library director to remove the challenged books from the shelves. The director complied. In response to additional complaints, the chair contacted the library director about other books that “depict any type of sexual activity or questionable nudity." That communication was accompanied by a list put together by a state representative of books he referred to as "pornographic filth." By the end of 2021, 17 books had been removed from the library based on resident complaints.

In 2022, the library board was dissolved and replaced by a new board. The chair of the county commissioners appointed to the new board two members who had been involved in the book removal complaints. The new library board then implemented several policy changes, including prohibiting the library director from attending board meetings and requiring the director to seek approval from the library board before purchasing any new books for the library.

Seven library constituents then filed a lawsuit in federal court against the county commissioners, the library director, and the library board members claiming that the removal of the 17 books from the library was because they disagreed with the books’ content in violation of the First Amendment. They asked the district court to impose a preliminary injunction while the case moved forward that would require, among other things, that the library restore the 17 books.

The district court granted the preliminary injunction request and ordered the library to restore the removed books to library shelves while the case continued through the process. The district court found that the patrons had adequately pleaded a First Amendment claim because the library's likely motivation in removing the books was “a desire to limit access to the viewpoints” with which they disagreed. The court noted that while public libraries have “broad discretion” to curate the content of their collections, their discretion is not absolute. 

The library appealed the injunction to the Court of Appeals. The Court of Appeals analyzed the First Amendment cases, focusing on the U.S. Supreme Court ruling in Board of Education, Island Trees Union Sch. Dist v. Pico, 457 U.S. 853. In that case, a plurality of the Supreme Court held that school officials could not remove books from a school library's shelves simply because they dislike the ideas contained in those books, and that if their intention was to deny access to ideas they disagree with, and that intent was the decisive factor in their decision, then their exercise of discretion would violate the First Amendment. 

Based on the holding in the Pico case and other relevant cases, the Court of Appeals held that although librarians can consider the content of books in making curation decisions, that discretion must be balanced against patrons' First Amendment rights, including the right to receive information and ideas. If the motivation of a library official to remove a book is the desire to deny access to ideas to which they disagree, and that intent is the substantial reason for the decision, then the decision implicates First Amendment rights.

The Court of Appeals acknowledged that there are many other reasons why books may be removed that have little to do with a disagreement with the books' content. For example, the Court said a library could remove older editions of a dictionary, or books that are in a dilapidated condition, or books that hadn't been checked out in years based on lack of interest and poor circulation history, without acting unconstitutionally. However, the Court did not find that there was any evidence that the library's rationale for their book removal decisions in this case fell into any of these rationales.

Instead, the Court of Appeals found that the district court's preliminary injunction was based on its reasonable conclusion that the 17 books were removed after constituents complained they were "pornographic filth," and the library's substantial motivation to remove the was to deny access to particular ideas. The Court of Appeals found the evidence to be clear that the library director likely weeded these books because she was told to do so by those who disagreed with their message.

In conclusion, the Court of Appeals stated as follows:

Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree. 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. 

The Court of Appeals then ordered the library to restore the disputed books to "publicly visible and accessible shelves" in the library, update the library's catalog to reflect that these books are available for checkout, and enjoined the library from removing any books from the shelves without first providing the constituents who brought the lawsuit with documentation on the library officials responsible for making that decision and the reasons for the removal. 

Note that this appeal involved a preliminary injunction, and did not decide the substance of the case, so the plaintiffs' First Amendment claims will now move forward at the district court, while this injunction stays in place during those proceedings.

It is worth noting that the case is quite lengthy, and a good portion of the case is devoted to a dissenting opinion that argues that the library's decision in curating its materials is government speech, and concludes that the majority's opinion has turned courts into the "library police."

It will be interesting to see how this case plays out at the district court when the case returns for further proceedings but also whether the case ultimately makes it way to the U.S. Supreme Court since this ruling is only precedential in the Fifth Circuit Court of Appeals.


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