Removing books from a public library based on an opinion violated the First Amendment, the District Court found

From Little v. Llano CountyJudge Robert Pitman (WD Tex.) decided yesterday:

In early July 2021, prior to being appointed to the New Library Board, defendants Rochelle Wells, Rhonda Schneider, Gay Baskin, and Bonnie Wallace were part of a community group advocating for the removal of children’s books they deemed “inappropriate.” For example, these defendants objected to two series of children’s picture books, “Butt and Fart Books,” which depicted bodily functions in a humorous cartoon format, because they believed the books were obscene and promoted “grooming.” Defendant Milum, director of the library system, shared the grievances with the trustees court the municipal entity that controls the Llano County library system. Although several trustees and librarians stated that they saw no problem with the books, defendants Moss and Cunningham contacted Milum to instruct her to remove the books from the shelves.

By August 5, 2021, Milum notified Cunningham that she would delete both sets of books from the catalog system. In the following months, other books were published, such as In the Night Kitchen Maurice Sendak and It’s perfectly normal, by Robbie H. Harris, were removed due to similar complaints: that they encouraged “child grooming” and featured cartoonish nudity. Plaintiffs or anyone else had no right to appeal these removals to the library system.

In the fall of 2021, Wallace, Schneider, and Wells, as part of their community group, contacted Cunningham to complain about certain books that were in children’s sections or otherwise highly visible, calling them “pornographic filth.” On November 10, 2021, Wallace provided Cunningham with lists, including a list of “dozens” to be found in the library. Books labeled as “pornographic” included books promoting acceptance of LGBTQ views. Other books on Wallace’s list of pornographic books [were] on “critical race theory” and related racial topics. In other communications, Defendants refer to them as “CRT and LGBTQ” books. In an email, Wallace advocated moving the books to the adult section because “[i]that’s the only way to [she] could come up with a ban on future censorship of books [she does] agree with.”

That same day, Cunningham and Moss ordered Milum, “[a]actions to be taken immediately,” to pull books containing “sexual activity or suspicious nudity” from the shelves… On November 12, 2021, the defendants removed several Bonnie Wallace spreadsheet books from the shelves of the Llano Library Branch, including, for example, Caste: The Origin of Our Discontent, They called themselves the KKK: The Birth of an American Terrorist Group, Being Jazz: My Life as a (Transgender) Teenagerand Spinning….

The physical books in question in this case, although “available” for checkout, are hidden from view and not in the catalog. Their existence is not visible to the public, nor is their availability. Injury [to the plaintiffs, who are asserting their rights as would-be readers -EV] exists because the library’s “internal billing system” still places “a significant burden on the ability of library patrons to gain access to these books.” …

The Supreme Court recognized that public libraries should have “broad discretion” in the collection selection process, in which library staff must necessarily consider the content of books. See US v. Am. Library Assn., Inc., 539 US 194, 205 (2003) (plurality). But this discretion is not absolute and only applies to the choice of material. In fact, the Fifth Circuit, accepting the plurality of the Supreme Court Pizzait recognized a “First Amendment right to receive information” that prevents libraries from “removing[ing] books from the school library shelves ‘simply because they don’t like the ideas contained in those books’.” Campbell v. St. Tammany Par. Sch. Bd. (5th Circuit 1995). “The key question in the book removal case” is whether the government’s “significant motivation” was to deny library users access to ideas with which [the government] I disagree.”

Here, plaintiffs have sufficiently pleaded that defendants’ conduct was substantially motivated by a desire to remove books promoting ideas with which they disagreed. They clearly state that the defendants removed, ordered the removal, or requested the removal of the books in question “because they disagreed with their political views and did not like their subject matter.”

The defendants do not argue otherwise. Instead, they argue that plaintiffs have failed to state a claim because the takedown decisions were “government speech not covered by the First Amendment.” But as plaintiffs note, the cases defendants cite generally involve initial selection, not removal of material. See e.g, Am. Library (“Underlying principles [the precedent] they also apply to the public library’s judgment in the selection of material it provides to its users.”); PETA v. Gittens (DC Cir. 2005) (reconciling the discretion conferred on the library’s book collection decisions with the committee’s decisions on art selection). As the Fifth Circuit has held Campbell, removal decisions are subject to the First Amendment and are evaluated based on whether “the government’s substantial motivation in making the removal decision” was discriminatory. Here, the plaintiff made it clear that the defendants had that motivation.

The defendants claim that Campbell and Pizza do not apply to this context because those cases dealt with the removal of books from public school libraries, which may be subject to uniform constitutional rules… [T]The Court agrees that precedent indicates that public school libraries are a unique setting for constitutional analysis. Campbell, Pizzaand Cheers suggest that the discretionary power of school officials is particularly broad for the selection of books in public school libraries because of the unique inculcating function of schools. However, the right to access information was first established in Pizza and was later adopted by the Fifth Circuit in Campbell it has “even greater force when applied to public libraries,” since public libraries are “created for free inquiry,” and the kind of discretion granted to school boards is not implied.

The defendants, as well as other government officials involved in the maintenance of libraries, have wide discretion in the selection and acquisition of books for the library’s collection. But the Fifth Circuit recognizes a First Amendment right to access information in libraries, a right that applies to decisions to remove books. Plaintiffs have clearly stated a claim that falls squarely within this right: that Defendants removed the disputed books to prevent access to the views and content they objected to….

The district court further concluded that plaintiffs were likely to prevail on the claim, and therefore granted them a temporary injunction; the full list of books that had to be returned consisted of:

And. Caste: The Origin of Our Discontent by Isabel Wilkerson;
b. They called themselves the KKK: The Birth of an American Terrorist Group Susan Campbell Bartoletti;
c. Spinning by Tillie Walden;
d. In the Night Kitchen written by Maurice Sendak;
e. It’s Perfectly Normal: Changing Bodies, Growing Up, Sex, and Sexual Health by Robie Harris;
f. My ass is so noisy!, I broke my ass!and I need a new ass! by Dawn McMillan;
Mr. Larry The Farting Leprechaun, Gary the goose and his gas on the loose, Freddie farting snowmanand Harvey the Heart has too many farts by Jane Bexley;
h. Being Jazz: My Life as a (Transgender) Teenager Jazz Jennings;
I Shine by Lauren Myracle;
j. Under the Moon: A Catwoman Tale by Lauren Myracle;
k. Gabi, the girl in pieces author Isabel Quintero; and
l. Freakboy by Kristin Elizabeth Clark.

(The court did not specifically discuss the objections to the Butt and Fart books, which seemed to focus less on viewpoint and more on perceived vulgarity.) Note that whether removals of books from school library shelves based on viewpoint are constitutional is not resolved —Committee for Ed v. Pico (1982) did not resolve the issue—but the Fifth Circuit did hold such removals unconstitutional. And if even school libraries cannot participate in such removals, the matter is even clearer as far as public libraries are concerned, for the reasons mentioned by the District Court.

Congratulations to Ellen Leonida, Matthew Borden, J. Noah Hagey, Sarah Salomon, Pratik Ghosh and Amy Senia (Braunhagey & Borden LLP) and Ryan Botkin, Katherine P. Chiarello and Maria Amelia Calaf (Wittliff | Cutter PLLC), who represent the plaintiffs.

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