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The U.S. Court of Appeals for the Fifth Circuit has upheld most of a district court’s preliminary injunction in the ongoing Llano County library lawsuit. The ruling was issued on Thursday, June 6.

The final judgment favored the plaintiffs in the case of Leila Little et al. v. Llano County et al., who initially filed a civil lawsuit in April 2022. The suit, filed in the U.S. District Court for the Western District of Texas in Austin, claimed Llano County officials violated the plaintiffs’ First Amendment right to access information and ideas by removing 17 books based on content and messages. 

After several hearings on the matter, District Judge Robert Pitman issued a preliminary injunction ordering Llano County to return the books to library shelves and the library system’s online catalog. Defendants followed the ruling but also filed an appeal, which stayed further action on the district court level. 

After 364 days of consideration by the Fifth Circuit Court of Appeals, judges upheld Pitman’s injunction with a few modifications but an agreement with the plaintiffs that their First Amendment rights had been violated. 

“Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree,” Judge Jacques Wiener wrote in the conclusion of the main opinion. “Because that is apparently what occurred in Llano County, Plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment claims, as well as the remaining factors required for preliminary injunctive relief.”

In modifying Judge Pitman’s order, the appeals court ordered eight of the 17 books that were removed be returned to library shelves and the online catalog within 24 hours.

The ruling also enjoins the Llano County Library System from removing any books from its “publicly visible and accessible shelves and/or searchable catalog” without providing the plaintiffs with documentation showing who asked for the “removal or concealment” and why the library system decided to do so. 

The eight books being returned to shelves 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 
  • “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

The books the library system does not need to return are: 

  • “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

Appeals court Judge Leslie Southwick made the argument that removing the butt and fart books (as they are referred to in legal documents) did not violate anyone’s rights. 

“I do not find those books were removed on the basis of a dislike for the ideas within them when it has not been shown the books contain any ideas with which to disagree,” Southwick wrote.

Appeals court Judge Stuart Kyle Duncan wrote the dissent, using a quote from author Stephen King as his conclusion. 

“Stephen King saw this coming,” he wrote. “One of his scary stories once warned: ‘Avoid the library police!’ Now, thanks to the majority, we are all the Library Police. I dissent.”

In the main order, Judge Weiner countered with his own quote from King, who he said would be “horrified to see how his words are being twisted in service of censorship.” 

“Per King,” he wrote, “‘As a nation, we’ve been through too many fights to preserve our rights of free thought to let them go just because some prude with a highlighter doesn’t approve of them.’ Defendants and their highlighters are the true library police,” Weiner concluded. 

The appeals court ruling lifts the stay on action in the district court in Austin. The case had a jury trial set for October 2023, but that and all other motions were put on hold until the ruling. 

“This has been an excruciating year of waiting,” said Leila Green Little, one of seven plaintiffs in the lawsuit. “And I am so thrilled that the court has upheld the preliminary injunction and that the case may proceed.”