Waiting begins for appeals ruling in Llano County Library lawsuit
Three judges from the U.S. Court of Appeals for the Fifth Circuit questioned attorneys from both sides in the Leila Green Little et al. v. Llano County et al. library civil lawsuit in New Orleans on Wednesday, June 7.
The hearing took about an hour and was the last that judges Jacques L. Wiener Jr., Leslie H. Southwick, and Stewart Kyle Duncan heard for the week. A ruling could come at any time, a court clerk told DailyTrib.com.
The appeal was filed by the defendants in the lawsuit after a preliminary injunction ordered 17 books removed from Llano County Library System circulation be returned to shelves and the electronic catalog. The injunction was issued on March 30 by Judge Robert Pitman of the U.S. District Court for the Western District of Texas, Austin Division.
The books were returned by March 31. Pitman’s ruling stemmed from a preliminary hearing in October.
Seven library patrons filed suit in April 2022, claiming the books were removed because of the political beliefs of the Llano County Commissioners Court and the county Library Advisory Board, violating the plaintiffs’ First and 14th amendment rights. A jury trial is set for Oct. 16 in Austin. The case is on administrative stay pending a decision from the Fifth Circuit Court of Appeals.
Arguments centered on Head Librarian Amber Milum’s motivation in removing the books and whether an in-house checkout system for the 17 books mooted the plaintiffs’ claims that their rights are being violated.
Milum was following routine procedures known as “weeding” when removing the books, argued the defendants’ attorney, Jonathan Mitchell of Mitchell Law LLC of Austin.
The plaintiffs’ attorney, Katherine Chiarello of Botkin Chiarello Calaf PLLC of Austin, countered with email evidence that Milum removed the books at the instruction of Llano County Judge Ron Cunningham and Precinct 4 Commissioner Jerry Don Moss, who were urged to do so by two members of the Library Advisory Board.
Mitchell argued that because the 17 books removed were made available behind the counter, the plaintiffs’ rights were no longer being violated.
The in-house checkout system was set up after the lawsuit was filed. Mitchell purchased the 17 removed books, which were kept behind the counter and were not entered into the digital catalog. Anyone who knew the books was there could request them for checkout.
“The only people suing are these named plaintiffs, and they know where these books are,” Judge Duncan said to Chiarello. “How are they still injured when they still know how to access them?”
Chiarello told the judges that the District Court called the in-house checkout system “litigation posturing.”
“It may be litigation posturing, but in all due respect, it’s happened,” Judge Duncan said. “It’s there.”
“I disagree with that,” Chiarello said. “The District Court found that there remains a First Amendment burden on the plaintiffs. Those burdens are that (the books) are not available on the shelves, they are not available in the catalog. When I go to the library, I check the catalog to see if it’s in the library. The plaintiffs have no way of knowing if the books are there.”
“Are you saying that asking the librarian for the books is a First Amendment violation?” Mitchell interjected.
“There has been no demonstration that the District Court’s ruling was erroneous when it found that the books were removed and hidden behind the counter because the government disagreed with their content,” Chiarello answered.
In her final statement, Chiarello said the defendants were trying to moot the District Court’s injunction.
“We are not mooting any violation of constitutional rights,” Mitchell said. “We are avoiding controversy.”
He added that the in-house checkout system eliminated the plaintiffs’ injuries “by 90 percent.”
“We are not arguing that their claims are moot,” he said.
Judges are also taking under consideration friend of the court briefs filed by seven major publishing houses and four library-related associations in support of the plaintiffs.
“In a democracy, the government can contest ideas, but it cannot ban them,” reads part of the amicus curia brief. “State censorship — no matter the political cause behind it — quells free thinking. “
“This is certainly an interesting case to resolve,” Judge Southwick said before adjourning the hearing.
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These disappointing books were published because being crass and tacky, expressing racist points of view, and arguing against nature are not excluded from among our 1st Amendment rights. Those rights remain protected in Llano County. But reasonable Americans do not promote human indecency. Llano County is exercising its 10th Amendment right to define indecency and not promote it. The Fifth Circuit panel must protect that right.