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Llano library lawsuit trial date passes as appeal wait continues

US Court of Appeals for the Fifth Circuit in New Orleans

The U.S. Court of Appeals for the Fifth Circuit in New Orleans.

Jury selection in a civil suit involving the Llano County Library was supposed to begin on Monday, Oct. 16, but the case remains on hold, as it has been since May 16.  

“Currently, we still await the decision from the Fifth Circuit Court of Appeals,” plaintiff Leila Little said. “We are just waiting.” 

All activity in Leila Little et al. v. Llano County et al., which was filed in April 2022 over claims of censorship, was stayed pending the outcome of an appeal filed by the defendants to the U.S. Court of Appeals for the Fifth Circuit in New Orleans. The appeal was filed on March 30, the same day U.S. District Judge Robert Pitman issued a preliminary injunction ordering the Llano County Library System to return 17 books it removed from shelves and the digital catalog. 

Within 24 hours, the books were returned as per the injunction.

Fifth Circuit justices Jacques L. Wiener Jr., Leslie H. Southwick, and Stewart Kyle Duncan questioned attorneys on both sides during an hour-long hearing on June 7. Arguments focused on whether the motivation for removing the books was based on the political beliefs of Llano County commissioners and the Llano County Library Advisory Board, which would be a violation of rights guaranteed in the U.S. Constitution.

Just a few days before the hearing, seven major publishing houses and three library-related associations, including the Texas Library Association, filed an amicus curiae, or friend of the court, brief supporting the plaintiffs’ position that removing the books violated First Amendment and 14th Amendment rights and would affect everyone in the United States, not just Llano County library patrons. 

“Publishers cannot fulfill their mission of connecting authors’ books with readers if the only speech allowed is that which aligns with the views of government authorities,” reads the first page of the Statement of Interest in the brief. “In a democracy, the government can contest ideas, but it cannot ban them. State censorship — no matter the political cause behind it — quells free thinking. “

The books at the center of the case are: 

  • “Caste: The Origins of Our Discontents” 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” and “Under the Moon: A Catwoman Tale” by Lauren Myracle
  • “Gabi, a Girl in Pieces” by Isabel Quintero
  • “Freakboy” by Kristin Elizabeth Clark

In his 26-page preliminary injunction, Judge Pitman said plaintiffs “made a clear showing that they are likely to succeed on their viewpoint discrimination claim.”

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

According to information from the October 2023 edition of the “Practitioners’ Guide to the United States Court of Appeals for the Fifth Circuit,” the wait for a decision in the case might be longer than first predicted. 

As of June 30, the appeals court had 3,541 cases pending. 

“Administrative Office of the U.S. Courts statistics showed the median time from filing the notice of appeal to issuance of the court’s opinion was 8.4 months,” reads a section of the guide. 

That would mean a decision sometime in February or March 2024. Decisions are typewritten and entered on the docket. They are also posted on the court’s website the day issued.