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Llano County library injunction granted; appeal filed

U.S. Federal Courthouse in Austin

The U.S. Federal Courthouse in Austin, where the civil case Little et al. v. Llano County et al. is being heard by U.S. District Judge Robert Pitman of the U.S. District Court for the Western District of Texas, Austin Division.

The Llano County Library System must return controversial books it removed from circulation in 2022 to library shelves and the system’s digital catalog within 24 hours of a judge’s order, which came down Thursday, March 30. The library system is also enjoined from removing any books from the catalog for any reason before the case is settled, either out of court or in a jury trial set for Oct. 24, ordered U.S. District Judge Robert Pitman of the U.S. District Court for the Western District of Texas, Austin Division.

On the same day, defendants in Little v. Llano County, et. al. filed an appeal to the order to the U.S. Court of Appeals for the Fifth Circuit. Defendants did not file for a stay of the injunction, so it should go into effect within 24 hours.

“The injunction will remain in place while defendants try to appeal,” the plaintiffs’ attorney, Ellen Leonida of Braunhagey & Borden LLP in San Francisco, told in an email response to questions. “In a case like this, where the court has given the parties every opportunity to prove their case, along with an evidentiary hearing that lasted several days, and in light of the detail and thoroughness of the court’s findings and reasoning, we do not believe that a stay would be indicated.”

Judge Pitman ruled in part and denied in part a preliminary injunction requested by plaintiffs Leila Green Little, Jeanne Puryear, Kathy Kennedy, Rebecca Jones, Richard Day, Cynthia Waring, and Diane Moster.

Pitman denied reinstatement of the e-book system Overdrive, which was replaced by Bibliotheca during the county system’s book removal process late last year. The issue is moot, he wrote, because the exchange already happened and because plaintiffs “failed to state either a First Amendment or a Due Process claim.”

He denied public access to Llano County Library Advisory Board meetings, which were closed to the public last year, for the same due process reason. Also, all advisory board meetings have been canceled pending the outcome of this case, making that issue moot as well.

In the preliminary injunction order, the judge found that the plaintiffs did establish their First Amendment rights and provided proof that county officials removed books based on the defendants’ own political beliefs. Defendants are Llano County Judge Ron Cunningham; commissioners Jerry Don Moss, Peter Jones, Mike Sandoval, and Linda Raschke; Library Director Amber Milum; and Llano Advisory Board members Bonnie Wallace, Rochelle Wells, Rhonda Schneider, and Gay Baskin.

“Plaintiffs have made a clear showing that they are likely to succeed on their viewpoint discrimination claim,” reads part of the 26-page order’s conclusion. “Although libraries are afforded great discretion for their selection and acquisition decisions, the First Amendment prohibits the removal of books from libraries based on either viewpoint or content discrimination.”

According to the order, “the evidence shows defendants targeted and removed books, including well-regarded, prize-winning books, based on complaints that the books were inappropriate.”

Judge Pitman further wrote, “there is sufficient evidence to raise concerns that the books would not remain in place without an injunction.”

He discounted an in-house check-out system that was put in place three months after the lawsuit was filed as “an obvious and intentional effort by the defendants to make it difficult if not impossible to access the materials plaintiffs seek.

“This ongoing infringement warrants an interim remedy precisely because the harm is ongoing and irreparable,” the order continues.

The in-house check-out system was set up after an “anonymous donor” purchased the books in question for the library branch in Llano. The Llano Library System also has branches in Kingsland and Buchanan Dam. The books were kept behind the counter in Llano, and if a patron knew to ask for them, they could check them out. The books were not listed in the catalog.

Court testimony in a preliminary hearing on the injunction in October 2022 revealed that the anonymous donor was the defendants’ attorney, Jonathan Mitchell of the Mitchell Law Firm in Austin.

“The books were not donated by a neutral benefactor with the intent of making them available to library patrons,” Pitman’s order reads, adding that Mitchell’s actions appeared to be calculated to promote his client’s litigation position.

The order lists the following books that must be immediately returned to the library’s shelves and digital catalog:

  • “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

“This is incredibly significant for our clients and for the public,” plaintiffs’ attorney Leonida said of the judge’s order to return the books. “It protects against censorship pending a final verdict, which is exactly what we had hoped for. Ultimately, we believe that we will prevail because the Constitution does not allow book banning.”

As to what happens next, beyond reshelving and cataloging the books, Leonida said injunctions are not binding on future court proceedings.

“But we believe that the Court’s legal reasoning should not change throughout the case,” she said. “The Court correctly found that the government is not allowed to tell citizens what they can or cannot read.”

A call to Mitchell, the defendants’ attorney, was not returned by story publication deadline.