Library lawsuit awaits judge’s decision on preliminary injunction

Whether or not the Llano County Library System will be forced to replace 12 books removed from its shelves by Library Director Amber Milum in November 2021 is now under consideration by U.S. District Judge Robert Pitman. 

A hearing on a preliminary injunction in the civil lawsuit Little et. al. v. Llano County et. al. was heard in U.S. District Court for the Western District of Texas, Austin Division, on Friday, Oct. 28, and Monday, Oct. 31. 

“I won’t need any more oral arguments,” Pitman told the packed courtroom after the last witness left the stand Monday afternoon. “Both sides have done a great job. You can accomplish everything that remains in your written submissions. I will take this all under advisement.” 

A trial has been set for Oct. 23, 2023. The recent hearing is to determine what will happen with the library system between now and then. 

In addition to returning the books to library shelves within 24 hours of a judge-enforced injunction, the motion seeks to have the books listed in the catalog system, making them easily accessible to library patrons. They are also to be made available on the e-book system. 

The injunction would also restrict the defendants from removing or concealing any other books from the county’s three libraries without documenting who made the decision to do so and why. Additionally, future meetings of the Llano County Library Advisory Board would be open to the public. The meetings were closed earlier this year.  

Llano County commissioners had discontinued new book purchases and further weeding, or removing, of books from the system’s three libraries in Llano, Kingsland, and Buchanan Dam once the lawsuit was filed.  

Much of the testimony in the hearing centered on who has the authority to remove books; how decisions are made on removing books; and whether or not an in-house checkout system established after the motion for a preliminary injunction was filed would satisfy the court without an injunction.

Testimony revealed that the books were bought by defense attorney Jonathan F. Mitchell of Mitchell Law LLC in Austin, who tried to keep that information from open court by objecting based on attorney-client privilege. Library Director Amber Milum was on the stand at the time. 

Since she learned who the anonymous donor was while in a meeting with Mitchell, he said she could not reveal that person’s name. Later on the stand, she said she spoke directly to the donor. The judge then said she had to reveal who that was, that attorney-client privilege no longer applied. The donor was her attorney, Mitchell. 

The books in question are:

• “Caste: The Origins of Our Discontent” by Isabel Wilkerson 
• “They Called Themselves the K.K.K: The Birth of an American Terrorist Group” by Susan Campbell Bartoletti
• “Spinning” by Tillie Walden 
• “In the Night Kitchen” by Maurice Sendak 
• “It’s Perfectly Normal: Changing Bodies, Growing Up, Sex, and Sexual Health” by Robie Harris
• “My Butt is So Noisy!,” “I Broke My Butt!,” and “I Need a New Butt!” by Dawn McMillan
• “Larry the Farting Leprechaun,” “Gary the Goose and His Gas on the Loose,” “Freddie the Farting Snowman,” and “Harvey the Heart Had Too Many Farts” by Jane Bexley
• “Being Jazz: My Life as a (Transgender) Teen” by Jazz Jennings
• “Shine” by Lauren Myracle
• “Under the Moon: A Catwoman Tale” by Selina Kyle
• “Gabi, a Girl in Pieces” by Isabel Quintero
• “Freakboy” by Kristin Elizabeth Clark

Plaintiffs’ attorneys tried to call Mitchell to the stand to testify to his intent in donating the books, which resulted in a 20-minute conference in the judge’s chambers. Mitchell was not listed on the plaintiffs’ witness list, which was submitted to the defense before the hearing. Attorneys returned from chambers and took up where they left off without Mitchell taking the stand. 

Testimony from Milum, Llano County Judge Ron Cunningham, and Precinct 4 County Commissioner Jerry Don Moss centered on why Milum weeded the 12 books and how. According to emails, notes, and video from depositions, Moss and Cunningham both told Milum to remove the books. Milum sent Cunningham an email immediately following the removal on Nov. 12, 2021, telling him she had done as asked. 

Milum said she used the CREW and MUSTIE systems employed by most libraries around the world to make the decision to weed the books. Criteria include whether a book has been damaged, can be found elsewhere, or is no longer relevant. The number of times a book is checked out of the library can be used to determine its relevance. 

Testimony and exhibits showed that “In the Night Kitchen” had been checked out 33 times in its 22 years on the shelf. It was removed for irrelevance, specifically not being checked out enough, according to Milum’s testimony. According to several exhibits then presented in court, other books have been on the shelves longer without being checked out, including “Teach Yourself Microsoft 2000,” which was last checked out in 2003, and the novel “A Tangled Web,” last checked out in 2004. 

On the stand, both Cunningham and Moss said they did not instruct Milum to remove books. Moss, who came into the Llano library one day and asked to see “the ‘Butt’ and ‘Fart’ books,” said he was only giving Milum his opinion.

“I made sure I told her I was not her supervisor,” Moss testified. “I make sure to do that with other departments I visit as well.”

He explained that the entire Commissioners Court would have to agree to make that kind of decision.

According to a note Milum wrote to herself after her meeting with Moss, she said Moss told her if she didn’t remove the books, he would have to take it to the Commissioners Court and have them vote the books out and that it “wouldn’t look good for the county.” 

“In my opinion, (the ‘Butt’ books) showed children’s rear ends,” Moss said during one of his two trips to the stand. “I didn’t think that should be in the children’s section.” 

Llano County Attorney Dwain Rogers asked in redirect if Moss had instructed Milum to remove the books.

“No,” Moss answered. 

“How many times have you told her to remove books from the library?” Rogers continued. 

“Never,” Moss said. “I was not there as her boss or a commissioner. She can ignore my opinion.” 

Milum testified that Judge Cunningham was her boss. Emails between the two appeared to show that Cunningham did direct her to pull the titles. 

An email from Cunningham to Milum directed Milum to pull any books in the children’s section with photos or illustrations of nudity “until further notice.” He continued that commissioners needed to review the library policies for how to purchase books. 

“I am concerned about anything that presented sexual conduct or contains harmful materials to children,” he testified. 

The “Butt” and “Fart” books were purchased by Milum.

“I thought they would be funny,” she said. “I read the reviews and thought they were silly but valuable.” 

No timeline was given on when Pitman could reach a decision on the injunction. A second motion to dismiss the lawsuit is also under consideration by the judge. 

suzanne@thepicayune.com