Full appeals court hears library case

The Llano County library lawsuit had another day in court on Tuesday, Sept. 24. The full U.S. Fifth Circuit Court of Appeals in New Orleans heard arguments from both sides in Leila Green Little et al. v. Llano County et al. Justices will decide whether to uphold a preliminary injunction from a district court judge that returned 17 banned books to the Llano County Library System.

The civil suit was filed by seven plaintiffs—Llano County residents and library cardholders—in U.S. District Court for the Western District of Texas, Austin Division, in April 2022. The plaintiffs say 17 books were removed from library shelves and the digital catalog because Llano County officials disagreed with their content, violating free speech rights in the First Amendment.

The books were returned when U.S. District Judge Robert Pitman granted a preliminary injunction in March 2023. At the same time, defense attorney Jonathan Mitchell of Mitchell Law PLLC in Austin appealed that decision to the Fifth Circuit Court of Appeals. 

The case was heard in the appeals court by a three-judge panel that issued a 2-1 split decision in favor of the plaintiffs, although it narrowed the number of books to be returned from 17 to eight. An unnamed appeals court judge immediately requested a rehearing before the full court.

During Tuesday’s hearing, Mitchell called on the appeals court to throw out its 29-year-old ruling in Campbell v. St. Tammany Parish School Board, which would render the defendants’ case moot. In that 1995 decision, the Fifth Circuit held that libraries may not “remove books from school library shelves simply because they dislike the ideas contained in those books.”

“That holding is wrong and should be overruled,” Mitchell said in his opening remarks. “The government has no constitutional obligation to provide these libraries or to provide any particular book in a library’s collection.”

Each side was granted 30 minutes to present its case. Mitchell spoke for about three minutes, took around 15 minutes of questions from the judges, and then granted a portion of his time to Florida Solicitor General Henry Whitaker. Florida joined Texas and 15 other states in filing friend-of-the-court briefs for the defendants. 

“The government does not have an obligation to subsidize constitutional rights,” Whitaker said. “Deciding what can and can’t be in a library is an integral part of running a library.”

Attorney for the plaintiffs Matthew Borden of BraunHagey & Borden LLP in Austin then went to the podium, also speaking for about four minutes before taking questions from the justices.

“The First Amendment prevents the government from getting rid of ideas it disagrees with,” he said. “Libraries have wide discretion but cannot remove books based on individual viewpoints.” 

He pointed out that the ruling in the Campbell case has been a law for 30 years, while the First Amendment has been the law of the land for 233 years. However, overturning the 1995 Campbell ruling “would turn libraries into political institutions” and give “the majority the power to oppress the minority.”

“That’s why we have the First Amendment protections,” he said. “The plaintiffs are a minority in their community. They tried to make change through the political process, but it did not work.” 

Mitchell reserved five minutes for rebuttal. He again called for overturning Campbell. One judge interrupted to object. 

“It is premature that we’d be making a determination about the merits and overturning Campbell,” Judge James Graves said. “If we rule against you, all that happens is that this goes back to the trial court, and then there has to be some evidence of or some hearing on whether to grant a permanent injunction. Isn’t that the posture of the case?” 

Mitchell countered that “there is so much disagreement on Campbell.” 

“Campbell is too vague,” he said. 

Both sides now await a ruling from the full appeals court. It took 364 days for the three-judge panel to issue its split decision in June. 

LAWSUIT AT A GLANCE

The plaintiffs in the civil suit are Leila Green Little, Jeanne Puryear, Kathy Kennedy, Rebecca Jones, Richard Day, Cynthia Waring, and Diane Moster. All are Llano County residents and library system users. 

The defendants are Llano County Judge Ron Cunningham; county commissioners Peter Jones, Linda Raschke, Mike Sandoval, and Jerry Don Moss; library system Director Amber Milum; and Library Advisory Board members Gay Baskin, Bonnie Wallace, Rochelle Wells, and Rhonda Schnieder.

The eight books approved for return by the three-judge panel in June 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, according to the panel, 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

suzanne@thepicayune.com