NEW ORLEANS — A Texas county that wants to remove 17 books from its shelves — some humorously about flatulence and others about issues such as sex, gender identity and racism — argued its case Tuesday before 18 federal appeals court judges, amid questions about whether the rights of customers or county officials were at risk.
In 2022, library patrons filed a lawsuit against multiple officials in the Llano County library system and the county government after the books were removed. A Texas federal district judge issued a preliminary injunction requiring the books to be returned in 2023. But the outlook grew bleaker when three judges on the 5th U.S. Circuit Court of Appeals split on the issue in June — one saying all 17 books should remain on the shelves, another saying only eight should remain, and another saying the court should let the county decide.
The result was that eight books were to remain on the shelves. But the full court voted to reverse that decision and reconsider the case. Tuesday’s arguments were heard by all 17 full-time judges on the 5th Circuit, as well as Jacques Wiener, a senior 5th Circuit judge with a reduced caseload who was on the original panel.
It is not yet known when the full court will deliver its decision.
The judges questioned lawyers for both sides closely, as attorneys supporting the county said government officials’ decisions in selecting books for a library amounted to protected government speech.
“If private speech could be presented as government speech simply by the imposition of a government stamp of approval, the government could silence the strongest and most adverse ideas,” Justice Leslie Southwick said. “It seems to me that there is a risk that that could happen here — that we would call this particular activity, which took place in this library, government speech, when in fact it is the suppression of ideas that are unpleasant and unacceptable to a group of people.”
Judge Stuart Kyle Duncan was more sympathetic to the county, pointing to a litany of “weeding” guidelines that libraries use to decide which books to stock based on factors ranging from the book’s age and condition to subject matter that might be considered outdated or racist.
He raised the question of whether a library could be allowed to remove an openly racist book by former Ku Klux Klan leader David Duke or the children’s book “The Cat in the Hat,” which has been criticized for allegedly drawing on racist minstrel show culture.
“If a public librarian removes ‘The Cat in the Hat,’ has he violated the First Amendment?” Duncan asked.
“If the librarian removes ‘The Cat in the Hat’ because he or she is substantially motivated by the suppression of the point of view it contains, then yes,” said Matthew Borden, the lawyer representing the library users.
The books at issue in the case include “Caste: The Origins of Our Discontent” by Isabel Wilkerson; “They Called Themselves the KKK: The Birth of an American Terrorist Group” by Susan Campbell Bartoletti; “In the Night Kitchen” by Maurice Sendak; “It’s Perfectly Normal: Changing Bodies, Growing Up, Sex, and Sexual Health” by Robie H. Harris; and “Being Jazz: My Life as a (Transgender) Teenager” by Jazz Jennings.
Other titles include “Larry the Fart Elf” by Jane Bexley and “My Ass Is So Loud!” by Dawn McMillan.
In the panel’s June decision, Wiener, who was appointed to the 5th Circuit by former President George H.W. Bush, said the books were clearly removed at the request of county officials who disagreed with the books’ messages.
Southwick, appointed by former President George W. Bush, also agreed with Wiener — in part. He argued that some of the redactions could withstand legal scrutiny as the case proceeds, noting that some of the books dealt more with “juvenile and flatulent humor” than more serious topics.
“I do not believe that these books were removed because of any dislike of the ideas they contain, as it has not been shown that the books contain ideas with which one might disagree,” Southwick wrote.
Duncan, a nominee of former President Donald Trump, was also on the panel, but he strongly disagreed. “The plaque in my office says ‘Judge,’ not ‘Librarian,’” Duncan wrote.
