Little v. Llano County
U.S. Court of Appeals for the Fifth Circuit
Little v. Llano County, 103 F.4th 1140 (5th Cir. 2024)
Little v. Llano County
Opinion
Case: 23-50224 Document: 164-1 Page: 1 Date Filed: 06/06/2024
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________FILED
June 6, 2024
No. 23-50224 Lyle W. Cayce
____________ Clerk
Leila Green Little; Jeanne Puryear; Kathy Kennedy;
Rebecca Jones; Richard Day; Cynthia Waring; Diane
Moster,
Plaintiffs—Appellees,
versus
Llano County; Ron Cunningham, in his official capacity as Llano
County Judge; Jerry Don Moss, in his official capacity as Llano County
Commissioner; Peter Jones, in his official capacity as Llano County
Commissioner; Mike Sandoval, in his official capacity as Llano County
Commissioner; Linda Raschke, in her official capacity as Llano County
Commissioner; Amber Milum, in her official capacity as Llano County
Library System Director; Bonnie Wallace, in her official capacity as
Llano County Library Board Member; Rochelle Wells, in her official
capacity as Llano County Library Board Member; Rhoda Schneider, in
her official capacity as Llano County Library Board Member; Gay Baskin,
in her official capacity as Llano County Library Board Member,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:22-CV-424
______________________________
Before Wiener, Southwick, and Duncan, Circuit Judges.
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Jacques L. Wiener, Jr., Circuit Judge:
The dirtiest book in all the world is the expurgated book. 1
Plaintiffs-Appellees, seven patrons of the Llano County library system
(“Plaintiffs”), brought this suit against Defendants-Appellants Llano
County, the members of the County’s Commissioners Court, the County’s
library system director, and the library board (collectively, “Defendants”).
Plaintiffs claim that Defendants violated their First Amendment right to
access information and ideas by removing seventeen books based on their
contents and messages. The district court granted Plaintiffs’ request for a
preliminary injunction, requiring Defendants to return “all print books that
were removed because of their viewpoint or content” and enjoining
Defendants from “removing any books . . . for any reason during the
pendency of this action.” Defendants appeal. For the reasons to follow, we
MODIFY the language of the injunction to ensure its proper scope, but
otherwise AFFIRM.
I. Facts
Libraries must continuously review their collection to ensure that it is
up to date and to make room for new acquisitions. Like many libraries, the
Llano County library system uses the “Continuous Review, Evaluation and
Weeding” (“CREW”) process. This is a standardized method of evaluating
a library’s collection and removing outdated or duplicated materials (also
known as “weeding”), according to objective, neutral criteria. Llano County
applies the “MUSTIE” factors in weeding books, as recommended by
experts in the field, under which a book is evaluated for whether it is (1)
“Misleading and/or factually inaccurate,” (2) “Ugly (worn out beyond
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1
Walt Whitman (1888), in Horace Traubel, With Walt Whitman in
Camden 124 (1906).
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mending or rebinding),” (3) “Superseded by a new edition or a better
source,” (4) “Trivial (of no discernable literary or scientific merit),” (5)
“Irrelevant to the needs and interests of the community,” or (6) “Elsewhere
(the material may be easily borrowed from another source).” Weeding
decisions are made based on “some combination of these criteria – that is, an
item will probably not be discarded based on meeting only one these criteria.”
Llano County’s public library system has three physical branches,
respectively located in Llano, Kingsland, and Buchanan Dam. The library
also offers access to e-books and audiobooks through a digital service called
Bibliotheca. Amber Milum serves as the director of the library system. See
Tex. Local Gov’t Code § 323.005(a) (providing for the appointment
of a “county librarian”). The library is under the general supervision of the
County’s Commissioners Court, which is led by Judge Ron Cunningham. See
id. § 323.006.
In August 2021, Llano resident Rochelle Wells, together with Eva
Carter and Jo Ares, complained to Cunningham about “pornographic and
overtly sexual books in the library’s children’s section.” They were
specifically concerned with several books about “butts and farts.” Wells had
been checking out those books continuously for months to prevent others
from accessing them. As library director, Milum had initially ordered those
books because she thought, based on her training, that they were age
appropriate. Because of the complaints, Cunningham told Milum to remove
the books from the shelves. Commissioner Jerry Don Moss also requested
that Milum remove the books, telling her that the next step would be going
to court, which would lead to bad publicity, and advising her to “pick her
battles.” She followed those instructions and removed the “butt and fart”
books from both the library shelves and the catalog.
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A few months later, in response to further complaints, Cunningham
directed Milum to immediately pull all books from the shelves that “depict
any type of sexual activity or questionable nudity.” That direction came via
a forwarded email that Cunningham had received from a constituent named
Bonnie Wallace. Wallace had sent Cunningham a list of books in the Llano
County library system that appeared on Texas Representative Matt Krause’s
list of objectionable material, referring to the books as “pornographic filth.”
After receiving that list (“the Wallace list”) from Cunningham, Milum
pulled the books from the shelves, allegedly to “weed” them based on the
traditional MUSTIE factors. Milum testified that she would not have pulled
the books had it not been for her receipt of the Wallace list. In fact, she had
pulled no other books for review during that time period. By the end of 2021,
seventeen books—all on the Wallace List—had been removed from the
Llano County library system entirely.
Loosely grouped, those books are:
• Seven “butt and fart” books, with titles like I Broke My Butt! and Larry
the Farting Leprechaun;
• Four young adult books touching on sexuality and homosexuality,
such as Gabi, a Girl in Pieces;
• Being Jazz: My Life as a (Transgender) Teen and Freakboy, both
centering on gender identity and dysphoria;
• Caste and They Called Themselves the K.K.K., two books about the
history of racism in the United States;
• Well-known picture book, In the Night Kitchen by Maurice Sendak,
which contains cartoon drawings of a naked child; and
• It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual
Health.
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In January 2022, the existing library board was dissolved and a new
board was created. Cunningham appointed Wells and Wallace to the new
board. The new board implemented several policy changes, including
prohibiting Milum from attending their meetings and requiring her to seek
approval before purchasing any new books.
Defendants’ attorney donated copies of the seventeen books back to
the library after the inception of this litigation. However, today the books are
not on shelves nor in the catalog system. Instead, if a patron wishes to access
them, he or she must approach the desk and ask the librarian for them. Their
existence has not been advertised in any way: Without reading the briefs in
this lawsuit, there is no way to know that the books are available. Defendants
characterize this as an “in-house checkout system,” which has been
traditionally used to let people read reference books inside the library.
However, unlike the seventeen at issue here, those books are available in the
catalog.
II. Procedural History
Plaintiffs, seven patrons of the library, brought this suit, alleging that
Defendants removed the seventeen books because they disagreed with the
books’ content, in violation of the First Amendment. 2 Plaintiffs sought a
preliminary injunction requiring, among other things, that Defendants
replace the seventeen books. In response, Defendants moved to dismiss
Plaintiffs’ suit under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
After a two-day evidentiary hearing, the district court largely denied
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2
Plaintiffs also brought a due process claim under the Fourteenth Amendment.
However, that claim is not at issue in this appeal because the district court did not rely on
it in granting the preliminary injunction.
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Defendants’ motion to dismiss and granted Plaintiffs’ motion for a
preliminary injunction.
The district court first held that Plaintiffs had standing to bring the
case, including assertion of a constitutional injury in the form of an inability
to check out the contested books. The court rejected Defendants’ argument
that Plaintiffs’ claims were mooted because they could access the books
through Bibliotheca or the in-house checkout system. 3 The district court next
held that Plaintiffs’ complaint adequately pleaded a First Amendment claim
upon which relief could be granted, noting that while public libraries have
“broad discretion” to curate the content of their collections, this discretion
is not absolute. See United States v. Am. Libr. Ass’n, Inc., 539 U.S. 194, 204(2003) (plurality opinion) (hereinafter “ALA”). The court therefore adopted a standard from our 1995 decision Campbell v. St. Tammany Parish School Board, in which we held that libraries may not “remove books from school library shelves ‘simply because they dislike the ideas contained in those books.’”64 F.3d 184, 188
(5th Cir. 1995) (quoting Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico,457 U.S. 853, 872
(1982) (plurality
opinion)). “The key inquiry in a book removal case,” we wrote in Campbell,
is whether the government’s “substantial motivation” was to deny library
users access to “objectionable ideas.” Id. at 187, 190. The district court held
that Plaintiffs had adequately pled that “Defendants’ conduct was
substantially motivated by a desire to remove books promoting ideas with
which [they] disagreed.”
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3
Initially, Plaintiffs also brought a claim relating to OverDrive, the online book
database that the library had used prior to Bibliotheca. The district court granted
Defendants’ motion to dismiss Plaintiffs’ “OverDrive-related claims” because they were
mooted by the County’s new contract with Bibliotheca.
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The trial court then considered Plaintiffs’ application for a
preliminary injunction. It held that Plaintiffs were likely to succeed on the
merits of their claim, addressing both viewpoint and content discrimination.
As to viewpoint discrimination, applying the standard from Campbell, the
court found that Defendants’ “likely motivat[ion]” in removing the books
was “a desire to limit access to the viewpoints” with which they disagreed.
It saw Defendants’ claim that the removals were part of the library’s routine
weeding process as a post hoc and pretextual rationalization. The court also
determined that Plaintiffs were likely to succeed on the merits of their First
Amendment claim through a content discrimination analysis, as the removal
decisions would not survive strict scrutiny.
Finding the remaining preliminary injunction factors to be satisfied,
the district court ordered Defendants to “(1) return all print books that were
removed because of their viewpoint or content,” including the seventeen
books at issue; (2) “update all Llano County Library Service’s catalogs to
reflect that these books are available for checkout”; and (3) refrain from
“removing any books from the Llano County Library Service’s catalog for
any reason during the pendency of this action.”
Defendants timely appealed the district court’s injunction. They also
moved to expedite the appeal and for an injunction pending appeal. A
motions panel of our court agreed to expedite and carried the motion for an
injunction with the case. When this panel was assigned the case, we granted
an administrative stay of the district court proceedings pending our decision.
III. Standard of Review
“We review a preliminary injunction for abuse of discretion,
reviewing findings of fact for clear error and conclusions of law de novo.” Rest.
Law Ctr. v. U.S. Dep’t of Lab., 66 F.4th 593, 597 (5th Cir. 2023) (citation
omitted). A factual finding is not clearly erroneous if it is “plausible in light
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of the record viewed in its entirety . . . even though we may have weighed the
evidence differently.” Taylor-Travis v. Jackson State Univ., 984 F.3d 1107,
1116(5th Cir. 2021) (citation omitted). To obtain the “extraordinary remedy” of a preliminary injunction, the movant must show “(1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) the threatened injury outweighs any harm that will result to the non-movant if the injunction is granted; and (4) the injunction will not disserve the public interest.” La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency,608 F.3d 217, 219
(5th Cir. 2010).
IV. Analysis
The crux of this appeal concerns the appropriate balance between a
library’s necessary discretion in making collection decisions and the rights of
its patrons to access information and ideas. Although this is undoubtedly a
hot-button issue at present, we answered the question in 1995 in Campbell, a
directly applicable decision that circumscribes the boundaries of our analysis
today. The district court, applying the correct standard, did not abuse its
discretion in granting Plaintiffs’ request for a preliminary injunction. We
explain why below.
A. The First Amendment Limits Public Libraries’ Discretion to Shape
Their Collections
We first outline the relevant cases to trace the contours of the First
Amendment as it applies to libraries and book removal. While the First
Amendment may most famously shield freedom of speech, it also protects
“the right to receive information and ideas.” Stanley v. Georgia, 394 U.S. 557,
564 (1969). This right is a “necessary predicate to the recipient’s meaningful
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exercise” of other rights protected by the First Amendment. Pico, 457 U.S.
at 867 (plurality opinion). 4
In Pico, the Supreme Court considered whether school officials acted
in violation of the First Amendment when they removed what critics called
“just plain filthy” books from public school library shelves. Id. at 857(plurality opinion). A plurality of the Court observed that, because students do not “shed their constitutional rights . . . at the schoolhouse gate,” school officials must discharge their discretionary functions “within the limits and constraints of the First Amendment.”Id. at 865
(plurality opinion) (quoting Tinker v. Des Moines Sch. Dist.,393 U.S. 503, 506
(1969)). The Court held
that while school boards have discretion to “determine the content of their
school libraries,” such discretion “may not be exercised in a narrowly
partisan or political manner.” Id. at 870 (plurality opinion). School officials
“may not remove books from school library shelves simply because they
dislike the ideas contained in those books.” Id. at 872 (plurality opinion). If
they do so with the intent to deny “access to ideas with which [they]
disagree[], and if this intent [is] the decisive factor in [their] decision, then
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4
The dissent asserts that Stanley’s “right to receive information and ideas” is only
relevant in a private context. It is true that the only quasi-binding precedent to apply this
right to public libraries is one of Pico’s several opinions. Note, however, that this court has
applied Stanley’s rule in the context of prison libraries, see Mann v. Smith, 796 F.2d 79, 83 n.3 (5th Cir. 1986), and other circuits have applied it to public libraries, see Kreimer v. Bureau of Police for Town of Morristown,958 F.2d 1242
, 1255 (3d Cir. 1992). And regardless, the Supreme Court has applied Stanley in various other non-private contexts, rendering the dissent’s concern about extending its holding inapt. See, e.g., Richmond Newspapers, Inc. v. Virginia,448 U.S. 555, 576
(1980) (attending criminal trials); Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc.,425 U.S. 748, 757
(1976) (receiving advertisements with prescription drug prices); Kleindienst v. Mandel,408 U.S. 753, 763
(1972) (hearing a
lecturer speak).
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[they] have exercised their discretion in violation of the Constitution.” 5 Id.
at 871 (plurality opinion). 6
We had an opportunity to apply this Supreme Court guidance in
Campbell. There, school officials had removed the book Voodoo & Hoodoo
from the school library after parents complained that the book was
dangerous. 64 F.3d at 186–87. We affirmed the principle that the “key inquiry
in a book removal case” is the remover’s “substantial motivation in arriving
at the removal decision.” Id. at 190. The record, however, was not
sufficiently developed at the summary judgment stage to determine whether
“the single decisive motivation” behind the removal decision was to “deny
students access to ideas with which the school officials disagreed.” Id. at 188,
191. Thus, while the circumstances surrounding the removal of Voodoo &
Hoodoo could not “help but raise questions regarding the constitutional
validity of [the] decision,” we remanded the case to the district court for
further factual consideration. Id. at 191.
Also relevant to our analysis today is the Supreme Court’s 2003
American Library Association decision. That case addressed a federal law
granting public libraries money for internet access, provided that they install
computer filters to block material harmful to children. 539 U.S. at 201. A
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5
A “decisive factor” is a “‘substantial factor’ in the absence of which the opposite
decision would have been reached.” Pico, 457 U.S. at 871 n.22 (plurality opinion).
6
Although Pico was a highly fractured opinion, the Supreme Court has clarified
that “all members of the Court, otherwise sharply divided, acknowledged that the school
board has the authority to remove books that are vulgar.” Bethel Sch. Dist. No. 403 v. Fraser,
478 U.S. 675, 684(1986). We have said that while “the constitutional analysis in the Pico plurality opinion does not constitute binding precedent, it may properly serve as guidance in determining whether the . . . removal decision was based on constitutional motives.” Campbell,64 F.3d 189
. Our opinion in Muir v. Alabama Educational Television Commission does not compel an alternative result. Seeid.
(citing Muir,688 F.2d 1033
, 1045 n.30 (5th
Cir. 1982) (en banc)).
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plurality of the Court rejected a facial First Amendment challenge to the law.
See id.at 198–99 (plurality opinion). The yet again sharply divided Court (with a four-judge plurality, two concurrences, and three dissents) did so for different reasons. Justice Rehnquist, writing for the plurality, emphasized public libraries’ “broad discretion” in shaping their collections, writing that it is the librarian’s responsibility to “separate out the gold from the garbage.” Id. at 204 (plurality opinion) (quoting W. Katz, Collection Development: The Selection of Materials for Libraries 6 (1980)). Justice Kennedy focused not on libraries’ discretion but instead on the fact that a librarian could quickly unblock material upon request, rendering any burden on patrons insignificant. Id. at 214–15 (Kennedy, J., concurring). Finally, Justice Breyer’s concurrence was concerned with “fit”: the relative burden that the law placed on library patrons versus the government’s legitimate interests in protecting young library patrons from inappropriate material. Id. at 220 (Breyer, J., concurring). There were very few “common denominators” between these three opinions which would “provide a controlling rule that establishes or overrules precedent.” See Whole Woman’s Health v. Paxton,972 F.3d 649, 652
(5th Cir. 2020) (internal
quotation marks and citation omitted). To the extent that one exists, we see
it as an agreement that libraries must consider content to some degree in
selecting material. But we still hesitate to ascribe ALA with significant
precedential power, such that it could have modified the clear rule that we
announced in Campbell.
From these three cases, we glean the following rules. Librarians may
consider books’ contents in making curation decisions. Id. at 205 (plurality
opinion). Their discretion, however, must be balanced against patrons’ First
Amendment rights. Pico, 457 U.S. at 865(plurality opinion). One of these rights is “the right to receive information and ideas.” Stanley,394 U.S. at 564
. This right is violated when an official who removes a book is
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“substantially motivated” by the desire to deny “access to ideas with which
[they] disagree[].” Pico, 457 U.S. at 871(plurality opinion); see also Campbell,64 F.3d at 191
. To be sure, content is necessarily relevant in removal decisions. ALA,539 U.S. at 205
(plurality opinion). But a book may not be removed for the sole—or a substantial— reason that the decisionmaker does not wish patrons to be able to access the book’s viewpoint or message. Campbell,64 F.3d at 191
. Thus, a librarian who removes the 7th Edition of a
Merriam-Webster dictionary in favor of the 8th Edition does not act
unconstitutionally simply because he or she considers the books’ content and
prefers the new edition. They may remove the 7th Edition with the intent to
eliminate superfluous editions to make room for new volumes, or merely
because the content is superseded by the 8th Edition. Similarly, a book by a
former Grand Wizard of the K.K.K., which hasn’t been checked out in years
and is discovered by a librarian during routine weeding, could be removed
based on lack of interest and poor circulation history.
We agree with Defendants that public forum principles are “out of
place in the context of this case.” ALA, 539 U.S. at 205(plurality opinion). In ALA, the plurality explained in dicta that forum analysis is inapplicable because “[a] public library does not acquire internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak.”Id. at 206
(plurality opinion). But that is not what Plaintiffs
argue here. They are not authors who seek to have their books included in the
library’s collection, but instead are patrons who seek to exercise their right to
receive information. 7 This distinction is relevant to the applicability of forum
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7
This also distinguishes many of the cases cited by the dissent. See, e.g., Pleasant
Grove City, Utah v. Summum, 555 U.S. 460, 465 (2009) (plaintiff was organization seeking
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principles. In Chiras v. Miller, a textbook author and a student brought suit
against a state board of education that decided to select certain textbooks over
others. 432 F.3d 606, 607(5th Cir. 2005). A panel of our court relied on ALA and found that forum analysis did not apply.Id. at 615
. We did so on consideration of whether there was a “forum to which Chiras [the textbook author] might assert a right of access under the First Amendment.”Id. at 618
. But, we wrote, “[t]he conclusion that no forum exists in this case does not necessarily preclude . . . Appellant Rodriguez’s asserted right as a student to receive the information in Chiras’ textbook from the school.”Id.
The dissent—like Defendants—attempts to distinguish Pico and
Campbell from ALA and the case at hand. Each of the reasons for doing so is
without merit; all four cases are harmonizable. First, our colleague believes
that Campbell’s focus on the “unique role of the school library”
circumscribes its applicability. See Campbell, 64 F.3d at 188(quoting Pico,457 U.S. at 869
(plurality opinion)). It is beyond dispute that there are unique considerations involved in balancing the discretion necessary for collection curation against students’ First Amendment rights. See Pico,457 U.S. at 879
(Blackmun, J., concurring). But if the principles enshrined in Pico and Campbell apply in the education context, in which particular free speech principles are restricted because of school officials’ need to control the curriculum and school environment, then they apply with even greater force outside of the education context, where no such limitations exist. See Sund v. City of Wichita Falls, Tex.,121 F. Supp. 3d 530, 548
(N.D. Tex. 2000). In emphasizing that students do not “shed their constitutional rights . . . at the schoolhouse gate,” the Court in Pico necessarily acknowledged that rights outside the school context are even more robust. See Pico,457 U.S. at 865
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to create and donate monument to public park); People for the Ethical Treatment of Animals,
Inc. v. Gittens, 414 F.3d 23, 26 (D.C. Cir. 2005) (same).
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(plurality opinion) (quoting Tinker, 393 U.S. at 506). The Court in Pico also expressly emphasized that its holding is limited to “library books, books that by their nature are optional rather than required reading,” as opposed to curricular materials. Id. at 862 (plurality opinion). This rendered the unique constitutional concerns of the classroom immaterial to the case. See id. (“Our adjudication of the present case thus does not intrude into the classroom.”). 8 As we noted in Campbell, “the high degree of deference accorded to educators’ decisions regarding curricular matters diminishes when the challenged decision involves a noncurricular matter.”64 F.3d at 188
. Our
colleague’s worry about “transplanting Campbell into the realm of public
libraries” is therefore misplaced, as we are already bound by its reasoning in
and out of the school context.
The dissent next insists that ALA prevents us from applying Campbell,
as Campbell’s “substantial motivation” test is incompatible with ALA’s
recognition of public libraries’ “broad discretion” in collection curation.
First, as we noted above, the badly fractured nature of ALA’s plurality
opinion circumscribes its precedential effect. We are skeptical that five
Justices would have agreed with the “broad discretion” language of the
plurality. Further, “broad discretion” is not the same as “unlimited
discretion.” The Supreme Court recognized in Pico that officials do not have
“absolute discretion to remove books from their school libraries.” 457 U.S.
at 869 (plurality opinion). The hypothetical posed by the dissent is inapt: If a
librarian exercises his or her discretion in removing a book promoting
Holocaust denial, as allegedly allowed by ALA, it does not necessarily follow
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8
We discussed this distinction in Chiras v. Miller, in which we declined to apply
Pico to a situation involving the selection of a textbook for use in the classroom, as Pico
concerned “the removal of an optional book from the school library.” 432 F.3d at 619
(emphasis added).
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that “the book is being removed because the library dislikes the ideas in it,”
as forbidden by Campbell. Instead, the librarian might be removing the book
based on other constitutional considerations, such as the accuracy of the
content. Although a public library does have discretion to consider books’
content in shaping its collection, when such discretion is exercised via
unconstitutional motivations—i.e., a desire to “prescribe what shall be
orthodox,”—the protections of the First Amendment necessarily come into
play. Pico, 457 U.S. at 872(plurality opinion) (quoting W. Va. Bd. of Educ. v. Barnette,319 U.S. 624, 642
(1943)). The dissent’s second justification for
rejecting Campbell, then, is also unpersuasive.
Finally, the dissent contends that, even if Campbell were to apply in
the public library context, the district court’s application of the case does not
comport with its holding. Our colleague sees the district court’s use of strict
scrutiny for content-related decisions as being in conflict with Campbell’s
suggestion that removing “pervasively vulgar” or “educational[ly]
[un]suitable” books would not be unconstitutional. See Campbell, 64 F.3d at
188–89 (quoting Pico, 457 U.S. at 871 (plurality opinion)). The district
court’s opinion is somewhat imprecise on the difference between viewpoint
and content discrimination and the role that Campbell’s substantial-
motivation test plays in each analysis. But Campbell’s rule holds true
regardless: if the remover’s motivation is to deny access to ideas with which
he or she disagrees, the remover violates the Constitution. Id. at 188. Even if
this decision were subject to only the lowest level of scrutiny, the government
has no legitimate interests furthered by removal. We therefore hold that if a
government decisionmaker removes a book with the substantial motivation
to prevent access to particular points of view, he or she violates the First
Amendment, and no further analysis is required.
Before the district court, Defendants also asserted that their actions in
selecting books for library shelves constituted government speech, to which
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the Free Speech Clause does not apply. The district court disagreed,
explaining that it was bound by Campbell’s application of the First
Amendment to library collection decisions. 9 Defendants have not pressed
this theory on appeal, although our dissenting colleague remains convinced. 10
While “[t]he Free Speech Clause . . . does not regulate government
speech,” collection decisions are not such speech. See Pleasant Grove City,
Utah v. Summum, 555 U.S. 460, 467(2009). Nowhere in Campbell, which is binding on us, did we suggest that a public official’s decision to remove a book from a school library was government speech. See64 F.3d at 190
. The choice to do so is subject to the First Amendment’s limitations. Seeid. at 188
. The
cases cited by our dissenting colleague, like Forbes and Finley, stand for the
proposition that the government requires extensive discretion in “deciding
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9
The district court also distinguished between cases cited by Defendants about the
initial selection of materials versus those regarding book removal, holding that only the
latter were relevant to the case at hand. We decline to expressly address the relevance of
this distinction because Campbell’s clear application renders it unnecessary for the scope
of our review today. We note that it is entirely possible that a book with a strong viewpoint,
initially protected on selection, might later be constitutionally removed if, inter alia, it
becomes damaged or is not checked out.
10
Plaintiffs contend that Defendants have waived their government-speech
argument by not raising it in their opening brief to this court. Generally, “a party waives
any argument that it fails to brief on appeal.” United States v. Whitfield, 590 F.3d 325, 346(5th Cir. 2009). But this rule is not absolute; whether waiver applies “depends on the nature of the issue.” Stramaski v. Lawley,44 F.4th 318, 326
(5th Cir. 2022). Our dissenting colleague sees the question of government speech as inextricably bound up in the issue of how the First Amendment applies to a library’s collection decisions, such that we cannot address one without the other. Seeid.
(considering “the unasked question of whether the doctrine even applies”). Although we are not so confident in the inevitability of the government speech theory, we consider the question because of its import. Seeid. at 326
(explaining that the issues which we may consider are “not limited to the particular legal theories advanced by the parties”); see also Singleton v. Wulff,428 U.S. 106, 121
(1976)
(“[W]hat questions may be taken up and resolved for the first time on appeal is one left
primarily to the discretion of the courts of appeals.”).
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No. 23-50224
what private speech to make available to the public.” ALA, 539 U.S. at 204(plurality opinion) (citing Ark. Educ. Television Comm’n v. Forbes,523 U.S. 666
, 672–73 (1998) and Nat’l Endowment for Arts v. Finley,524 U.S. 569, 585
(1998)). We agree. But, again, this discretion is not so unfettered as to put these government actions entirely outside the ambit of the First Amendment. See Pico,457 U.S. at 869
(plurality opinion) (rejecting absolute discretion). In each of these cases, the Court upheld the government’s right to consider the content of private speech in deciding what to make available to the public. See, e.g., Finley,524 U.S. at 585
(allowing the NEA to consider a “wide variety” of funding criteria, including “the technical proficiency of the artist, the creativity of the work, the anticipated public interest in or appreciation of the work, the work’s contemporary relevance, its educational value . . . .”). As discussed above, we agree that library personnel must necessarily consider content in curating a collection. However, the Court has nowhere held that the government may make these decisions based solely on the intent to deprive the public of access to ideas with which it disagrees. That would violate the First Amendment and entirely shield all collection decisions from challenge. See Pico,457 U.S. at 871
(plurality opinion); Campbell,64 F.3d at 190
. 11
_____________________
11
The dissent cites numerous cases involving the selection of public monuments.
The case at hand, however, is distinguishable based on the differences between a
monument in a public park and a book on a public library shelf. In Pleasant Grove City, Utah
v. Summum, for example, the Supreme Court held that a “City’s decision to accept certain
privately donated monuments . . . is best viewed as a form of government speech . . . [and
as such] is not subject to the Free Speech Clause.” 555 U.S. at 481. The Court considered the plaintiff’s “legitimate concern” that the government-speech doctrine could be used as “a subterfuge for favoring certain private speakers over others based on viewpoint.”Id. at 473
. It held that there was nothing deceptive about the selection of monuments, however, because by placing a monument in a park the government “dramatically” endorses the monument’s message, signaling that “the City intends the monument to speak on its own behalf.”Id.
The same cannot be said about library collection decisions, however, which are
too numerous to keep track of and often occur behind closed doors. The Court was also
17
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No. 23-50224
B. Defendants Likely Violated Plaintiffs’ First Amendment Rights
Having laid out the foregoing principles, we conclude that resolution
of this appeal requires a relatively straightforward application of Campbell, in
which we considered direct testimony as well as circumstantial evidence in
evaluating the defendants’ substantial motivation. See Campbell, 64 F.3d at
190; see also Pico,457 U.S. at 874
(plurality opinion). The seventeen books at issue here were removed after constituents complained that they were “pornographic filth” inappropriate for children. Specifically, Wallace and the other objectors were concerned about young readers accessing critical race theory, facts about sexuality, stories about gender dysphoria, and images that purportedly promote “grooming” behavior. Each of the books Milum removed were on the Wallace list. The removed books were not slated for review before the complaints were lodged, and no other books were weeded during that period. Moreover, Wallace and Wells were elevated to the newly reconstituted library board after their involvement in the complaints. “[T]he circumstances surrounding the . . . [removal] cannot help but raise questions regarding the constitutional validity of [the] decision.” Campbell,64 F.3d at 191
; see also Pico,457 U.S. at 875
(plurality opinion) (noting that the procedures used to remove the book seemed like “the antithesis of those procedures that might tend to allay suspicions regarding the [government’s] motivation”). The district court, which had the opportunity to observe Milum’s live testimony, found her explanations for her alleged reasons for removing the books to be contradictory and unconvincing. See United States v. Gibbs,421 F.3d 352, 357
(5th Cir. 2005) (citation omitted) (“One of the
_____________________
persuaded that the government “made no effort to abridge the traditional free speech
rights—the right to speak, distribute leaflets, etc.—that may be exercised . . . in [the park].”
Id. at 474. Plaintiffs have no such recourse in the library, which is not a traditional public forum as is a park. See Estiverne v. La. State Bar Ass’n,863 F.2d 371, 376
(1989).
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No. 23-50224
most important principles in our judicial system is the deference given to the
finder of fact who hears the live testimony of witnesses because of his
opportunity to judge the credibility of those witnesses.”). Each of these facts
support the district court’s reasonable conclusion that the books were
removed because of the Defendants’ complaints, and that Defendants’
substantial motivation was to deny access to particular ideas. See Pico, 457
U.S. at 871 (plurality opinion).
The district court found that “[t]here is no real question that
[Milum’s] targeted review was directly prompted by complaints from
patrons and county officials over the content of these titles.” We agree with
Defendants that the real issue here is not Milum’s choice to review the books
on the Wallace List, but instead is her decision to permanently remove the
seventeen books. The evidence, however, demonstrates that the complaints
did not merely cause Milum to pull the books for review; they were likely also
the motivating factor in her decision to remove the seventeen books from the
shelves permanently. Although Moss and Cunningham testified that they did
not expressly direct Milum to permanently remove the books, it was not clear
error for the district court to understand their communications as
instructions to do just that. See Anderson v. City of Bessamer City, 470 U.S.
564, 574 (1985) (“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”). The
contemporaneous communications instructed that the books should be
“pulled immediately,” not specifying whether they should be pulled for
review or forever. Further, the supervisory role of the Commissioners and
the language used, such as “Please advise Commissioner Moss and I when
this task has been completed,” underscores the fact that Milum removed the
books because she was told to do so. She did not even read the books before
removing them. Although it is Milum’s motivation that matters, we agree
19
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No. 23-50224
with the district court that she likely “adopted” the motivations of the other
Defendants.
Defendants aver that the books were removed through the library’s
routine weeding process and its application of the MUSTIE factors. A review
of the evidence reveals that the district court did not clearly err in finding this
reasoning to be unpersuasive. First, one of the main rationales behind the
CREW process is to ensure that there is space for new books on the shelves.
But the Llano County library suspended all new purchases in October of
2021, rendering this concern irrelevant. Second, Milum’s alleged application
of the MUSTIE factors was contradictory and inconsistent. For example,
Milum testified that Freakboy was weeded because it was “irrelevant,” given
that it had not been checked out in five years, and “elsewhere” because it
was available on interlibrary loan. But Milum herself testified that a book
should not be weeded for “irrelevance” simply because it had not been
checked out in a while. She also testified that a book is available “elsewhere”
when it is “easily borrowed from another source,” rather than simply
available anywhere, yet she did not look to see where Freakboy was located.
Further, Milum’s reasoning for weeding Freakboy applies to hundreds of
other books in the Llano County system, but those books remain on the
shelves. As another example, Milum stated that In the Night Kitchen was
removed because it was “ugly,” as the library’s copy had been damaged.
However, the physical evidence at trial showed otherwise.
When these explanations are stripped away, it becomes clear that
Milum likely weeded these books because she was told to by those who
disagreed with their message. That is not a valid reason to remove a book
under the MUSTIE criteria. It was not clear error for the district court to
conclude that Defendants’ alternative explanations for removal were
pretextual.
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No. 23-50224
We note that the removal of at least some of these books could be
upheld if the right justifications had been found by the district court. As we
recognized in Campbell, “an unconstitutional motivation would not be
demonstrated if the . . . officials removed the books from the . . . libraries
based on a belief that the books were ‘pervasively vulgar’ or on grounds of
‘educational suitability.’” Campbell, 64 F.3d at 188–89 (quoting Pico, 457
U.S. at 871 (plurality opinion)). But that is not what seems to have happened
here. For example, Milum testified that she initially ordered the “butt and
fart” books because she thought based on her training that they were age
appropriate, and her “opinion about the appropriateness of these books as
the head librarian never changed.” 12 Our holding in this case is controlled by
the district court’s supportable fact-finding that Defendants’ removal
decisions were likely motivated by a desire to limit access to ideas with which
they disagreed.
The fact that Milum did not weed every book on the Wallace list does
not negate the likelihood that Defendants’ substantial motivation in
removing the seventeen books was a desire to limit public access to the books’
viewpoints. Nor is that finding undermined by Milum’s decision to weed
Being Jazz from the Llano branch while refusing to do so at the Kingsland
branch where the book had been checked out more recently. A motivation is
“substantial” when in its absence “the opposite decision would have been
_____________________
12
While the “butt and fart” books may not on their face have a clear “idea” or
“viewpoint,” the record reveals that they were removed because Defendants did not want
readers to have access to books with pictures of naked bodies. Defendants believe that these
books promote “grooming” by depicting children displaying their naked bodies to “various
individuals, some of whom are adults.” I see access to these images—and what Defendants
say that they allegedly promote—as a viewpoint sufficient to support an unconstitutional
motivation under Campbell. Both of my colleagues disagree, however, so our holding does
not require the return of those books. Nor does it require the return of In the Night Kitchen
or It’s Perfectly Normal, for the same reasons.
21
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No. 23-50224
reached.” Pico, 457 U.S. at 871 n.22 (plurality opinion). That Milum decided
to weed only those books on the Wallace list that allegedly met a MUSTIE
criteria does not necessarily mean that she would not have weeded the books
without an unconstitutional motivation. It is possible that “something other
than Bonnie Wallace’s objections was behind Milum’s decision to weed
those books,” and that her substantial motivation in removal was still
unconstitutional.
We reversed the district court in Campbell because there was not
sufficient evidence in the summary judgment record to support a finding “as
a matter of law” that the book in question was removed “substantially based
on an unconstitutional motivation.” 64 F.3d at 190. There are two important differences between the procedural posture of that case and this one. First, we have here the benefit of a multi-day adversarial hearing, in which the district court had the opportunity to observe witnesses under cross- examination. See Campbell,64 F.3d at 190
(“[P]ermitting cross-examination probing [the removers’] justifications for removing the Book[] will enable the finder of fact to determine . . . the true, decisive motivation.”); 11A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 2949 (3d ed. 2023) (“When the outcome of a Rule 65(a) application depends on resolving a factual conflict by assessing the credibility of opposing witnesses, it seems desirable to require that the determination be made on the basis of their demeanor during direct and cross-examination, rather than on the respective plausibility of their affidavits.”). Second, we are not deciding as a matter of law that Defendants’ substantial motivation was unconstitutional, as is true on summary judgment review. Instead, we are merely holding that Plaintiffs have a substantial likelihood of ultimately succeeding on the merits. Those merits are still to be litigated in the trial court. See All. for Hippocratic Med. v. U.S. Food & Drug Admin.,78 F.4th 210, 242
(5th Cir. 2023), cert. granted,144 S.Ct. 537
(Dec. 13, 2023) (“[W]e note
22
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No. 23-50224
that ‘substantial’ does not mean ‘certain.’”); Byrum v. Landreth, 566 F.3d
442, 446 (5th Cir. 2009) (“A plaintiff is not required to prove its entitlement
to summary judgment in order to establish a substantial likelihood of success
on the merits for preliminary injunction purposes.” (internal quotation
marks and citation omitted)).
C. Plaintiffs Met Their Burden in Showing Other Preliminary Injunction
Factors
In addition to the likelihood of success on the merits of Plaintiffs’ First
Amendment claim, Defendants contend that the trial court erred in holding
that the remaining factors required for a preliminary injunction were met.
The parties talk past each other in arguing over the relevance of these issues
within the context of standing. But these questions arise not in the district
court’s denial of Defendants’ motion to dismiss—which Defendants do not
appeal—but instead in the court’s issuance of the preliminary injunction. As
noted above, to obtain a preliminary injunction, Plaintiffs must show that (1)
they are likely to succeed on the merits, (2) they will likely suffer irreparable
harm in the absence of relief, (3) the balance of the equities tip in their favor,
and (4) an injunction is in the public interest. La Union Del Pueblo Entero, 608
F.3d at 219.
Defendants insist that Plaintiffs are unable to meet the irreparable-
harm prong required for preliminary injunctive relief because they are still
able to read and checkout the seventeen contested books through the
library’s “in-house checkout system.” Defendants claim that Plaintiffs have
not shown “any harm (let alone an ‘irreparable’ harm) that they will suffer
from obtaining the disputed books through the library’s in-house checkout
system” as opposed to using the usual process. The district court held that
this difference did indeed create an irreparable harm. When we review that
determination for clear error, we conclude that the district court did not so
23
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No. 23-50224
err. See Taylor-Travis, 984 F.3d at 1116. We agree with Defendants that the injuries to other library patrons, who may not know about the availability of the contested books, is irrelevant for this analysis. See Jones v. District of Columbia,177 F. Supp. 3d 542
, 546 n.3 (D.D.C. 2016) (“[T]he irreparable harm prong of the injunctive relief calculus only concerns harm suffered by the party or parties seeking injunctive relief.”). But Plaintiffs have shown that they themselves will be injured by being unable to anonymously peruse the books in the library without asking a librarian for access. This burden on accessing their right to receive information is a valid First Amendment injury. See Denver Area Educ. Telecomms. Consortium, Inc. v. F.C.C.,518 U.S. 727, 754
(1996); 13 see also Lamont v. Postmaster Gen. of U.S.,381 U.S. 301, 307
(1965) (holding that the government acted unconstitutionally when it imposed an “affirmative obligation” on plaintiffs to request access to communist literature, which would have a “deterrent effect”). And a “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns,427 U.S. 347, 373
(1976). We cannot say that the district court clearly erred in concluding
that Plaintiffs will be irreparably harmed in the absence of an injunction.
Neither did the district court err in evaluating the balance of the
equities or the public interest. First, Defendants assert that the balance of the
equities tips in their favor, since complying with the injunction will impose a
_____________________
13
Defendants attempt to distinguish this case on the basis that, unlike cable
programming, libraries “have limited shelf space and must relegate some materials to
alternative sources such as . . . an in-house checkout system.” This is a red herring that
harkens back to Defendants’ argument about the role of content in collection decisions. It
is true that libraries must make decisions based on space constraints, but it is their
motivation in making those choices that matters for the First Amendment. It is
unconstitutional for the government to choose certain books for an in-house checkout
system above others, simply because they wish to prevent the public from accessing ideas
with which they disagree.
24
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No. 23-50224
large burden on them, and Plaintiffs have not suffered a constitutional injury.
We have held otherwise. Second, as the district court pointed out,
“injunctions protecting First Amendment freedoms are always in the public
interest.” Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 539 (5th
Cir. 2013) (citation omitted). The district court did not abuse its discretion
in concluding that the remaining factors for a preliminary injunction were
met.
D. The Preliminary Injunction is Overbroad
Finally, Defendants contend that the preliminary injunction ordered
by the district court is overbroad. Plaintiffs requested an injunction requiring
Defendants to return the seventeen contested books to the catalog and the
shelves. Their proposed order required the return of “the following print
books that were removed or concealed from the Llano County Libraries in
2021 or 2022 because of their viewpoint or content,” and then listed the
seventeen books. In contrast, the injunction issued by the district court
ordered the return of “all print books that were removed because of their
viewpoint or content, including the following print books,” then listed the
seventeen books by name. Defendants complain that Plaintiffs failed to show
that they are injured by the removal of any library materials other than the
seventeen complained-of books. We agree. Because an injunction may go no
further than what is necessary “to ensure Plaintiffs’ relief,” the injunction
issued by the district court is overbroad to the extent that it requires the
return of any books beyond the seventeen discussed herein. See Missouri v.
Biden, 83 F.4th 350, 395 (5th Cir. 2023).
The district court’s order further enjoins Defendants from “removing
any books from the Llano County Library Service’s catalog for any reason
during the pendency of this action.” That language also goes too far. “[I]t is
axiomatic that an injunction is overbroad if it enjoins a defendant from
25
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No. 23-50224
engaging in legal conduct.” Id.There are still entirely valid and constitutional reasons to remove books from the library’s shelves, such as when a patron severely damages a book. The injunction, then, is not narrowly tailored to remedy the injury of which Plaintiffs complain. See OCA-Greater Hous. v. Texas,867 F.3d 604, 616
(5th Cir. 2017) (citation omitted). We will therefore
modify the district court’s order to reflect the limited scope of the relief.
V. Conclusion
The dissent accuses us of becoming the “Library Police,” citing a
story by author Stephen King. But King, a well-known free speech activist,
would surely be horrified to see how his words are being twisted in service of
censorship. Per King: “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.” 14 Defendants and their
highlighters are the true library police.
Government actors may not remove books from a public library with
the intent to deprive patrons of access to ideas with which they disagree.
Because that is apparently what occurred in Llano County, Plaintiffs have
demonstrated a likelihood of success on the merits of their First Amendment
claim, as well as the remaining factors required for preliminary injunctive
relief. The district court’s order is AFFIRMED, except that we MODIFY
the district court’s injunction to state:
IT IS ORDERED THAT:
_____________________
14
Stephen King, The Book-Banners: Adventure in Censorship is Stranger Than
Fiction, THE BANGOR DAILY NEWS (Mar. 20, 1992),
https://stephenking.com/works/essay/book-banners-adventure-in-censorship-is-
stranger-than-fiction.html.
26
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No. 23-50224
1. Within twenty-four hours of the issuance of the mandate, Defendants shall
return the following books to the publicly visible and accessible shelves of the
Llano County Libraries:
a. Caste: The Origins of Our Discontent by Isabel Wilkerson;
b. Called Themselves the K.K.K: The Birth of an American Terrorist
Group by Susan Campbell Bartoletti;
c. Spinning by Tillie Walden;
d. Being Jazz: My Life as a (Transgender) Teen by Jazz Jennings;
e. Shine by Lauren Myracle;
f. Under the Moon: A Catwoman Tale by Lauren Myracle;
g. Gabi, a Girl in Pieces by Isabel Quintero; and
h. Freakboy by Kristin Elizabeth Clark.
2. Immediately after returning the books to the Libraries as ordered in 1.
above, Defendants shall update all Llano County Library Service’s catalogs
to reflect that those books are available for checkout.
3. Defendants are hereby enjoined from removing any books from the Llano
County Library Service’s publicly visible and accessible shelves and/or
searchable catalog without first providing Plaintiffs with documentation of
(a) the individual who decided to remove or conceal the books, and (b) the
reason or reasons for that removal or concealment.
Lastly, Defendants’ motions to stay the district-court proceedings
pending appeal and to stay the preliminary injunction pending appeal are
DENIED AS MOOT.
27
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Leslie H. Southwick, Circuit Judge, concurring in part and concurring
in the judgment in part:
This court has declared that officials may not “remove books from
school library shelves simply because they dislike the ideas contained in those
books and seek by their removal to prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion.” Campbell v. St.
Tammany Parish Sch. Bd., 64 F.3d 184, 188 (5th Cir. 1995) (quotation marks
and citations omitted). While that case was in the context of a school library,
the First Amendment standard it announced applies outside of schools as
well. Judge Wiener’s thorough and nuanced opinion accurately captures the
state of current law when it identifies the standard from Campbell as the one
to apply here. I concur in that opinion’s explication of the law. I part
company on some of the law’s application.
I find that some of the removals here satisfy the Campbell standard.
The district court found that all removals were unconstitutional, stating:
“Plaintiffs have clearly shown that Defendants’ decisions were likely
motivated by a desire to limit access to the viewpoints to which Wallace and
Wells objected.” I disagree, first, because not all of the books express an
“idea” or “viewpoint” in the sense required by the caselaw. I am referring
to the items we have needed to label for clarity as the “butt and fart books.”
Viewpoints and ideas are few in number in a book titled “Gary the Goose and
His Gas on the Loose” — only juvenile, flatulent humor. Perhaps a librarian
selected the book believing the juvenile content would encourage juveniles to
read. Even if that is so, 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.
Second, at this stage of the case, I find the motivations behind some
of the removals here are likely defensible and cannot satisfy the standard for
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23-50224
a preliminary injunction. The district court concluded that those responsible
for removing the books had effectively adopted the motivations of those
objecting to the books, i.e., “by responding so quickly and uncritically, Milum
and the Commissioners may be seen to have adopted Wallace’s and Wells’s
motivations.” Wallace and Wells objected to the butt and fart books on the
basis that they (1) promoted “grooming” of minors 1 and (2) were sexually
explicit. These objections do not convert the resulting removals into
viewpoint-based decisions. No controlling law prevents a librarian from
exercising what might be called traditional discretion to remove certain types
of content. Campbell itself acknowledged the Supreme Court’s guidance that
school librarians may permissibly remove books on the belief that the books
were “pervasively vulgar” or were not educationally suitable. Campbell, 64
F.3d at 188–89 (quoting and citing Board. of Educ., Island Trees Union Free
Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 870–72 (1982) (plurality opinion)).
Whatever the outer bounds of this traditional discretion might be, I
would have no difficulty in allowing the removal of a book from the children’s
section on the basis that it encourages children to engage in sexual activity
with adults or includes sexually explicit content. At this stage of the case, I
find ordering the return of such books to be error.
For similar reasons, the removals of In the Night Kitchen by Maurice
Sendak and It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and
Sexual Health by Robie Harris are also likely permissible. While these books
may express ideas, they were removed as part of the library’s efforts to
_____________________
11
To “groom” in the sense used here, according to the Merriam-Webster
Dictionary, is “to build a trusting relationship with (a minor) in order to sexually exploit
them especially for nonconsensual sexual activity.” Merriam-Webster Dictionary Online,
https://www.merriam-
webster.com/dictionary/groom#:~:text=%3A%20to%20clean%20and%20maintain%20the,t
o%20make%20neat%20or%20attractive (last accessed May 30, 2024).
2
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23-50224
respond to objections that certain books promoted grooming and contained
sexually explicit material that was not appropriate for children. Whether
these two books or the butt and fart books actually promoted grooming or
contained sexually explicit material is irrelevant. This court’s governing law
focuses on the subjective motivation of the remover, see Campbell, 64 F.3d at
191, and the district court reasonably concluded that the removers here had
adopted the motivations of the objectors.
I conclude that the plaintiffs have not met their burden to show a
likelihood of success on the merits of their constitutional challenges to the
removal of the butt and fart books, 2 In the Night Kitchen, and It’s Perfectly
Normal. The plaintiffs are, therefore, not entitled to a preliminary injunction
requiring the return of those books to the Llano County Libraries.
_____________________
2
My Butt is So Noisy!, I Broke My Butt!, and I Need a New Butt! by Dawn McMillan,
and Larry the Farting Leprechaun, Gary the Goose and His Gas on the Loose, Freddie the Farting
Snowman, and Harvey the Heart Has Too Many Farts by Jane Bexley.
3
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No. 23-50224
Stuart Kyle Duncan, Circuit Judge, dissenting:
The commission hanging in my office says “Judge,” not “Librarian.”
Imagine my surprise, then, to learn that my two esteemed colleagues have
appointed themselves co-chairs of every public library board across the Fifth
Circuit. In that new role, they have issued “rules” for when librarians can
remove books from the shelves and when they cannot. While I do not doubt
my colleagues’ good intentions, these “rules” are a disaster. They lack any
basis in law or common sense. And applying them will be a nightmare.
Look no further than today’s decision. The two judges in the majority,
while agreeing on the rules, cannot agree on how they apply to over half of
the 17 books in this case. So, according to Judge Wiener, a library cannot
remove It’s Perfectly Normal, a sex-education book for 10-year-olds that has
cartoons of people having sex and masturbating. Op. 27. But according to
Judge Southwick, removing that book is “likely permissible,” at least
“[a]t this stage of the case,” because it contains “sexually explicit material
that [i]s not appropriate for children.” Op. 2, 3 (Southwick, J., concurring in
part and concurring in the judgment in part). Evidently, both judges would
not allow a librarian to remove racist books—unless they have a “poor
circulation history.” Op. at 12. They differ, however, on how the rules apply
to a series of children’s books about flatulence. Compare Op. 21 n.11 with Op.
1, 3 (Southwick, J., concurring in part and concurring in the judgment in
part). And so we have a genuine first in the Federal Reporter: federal judges
debating whether the First Amendment lets a library remove a book called (I
kid you not) Larry the Farting Leprechaun.
This journey into jurisprudential inanity should never have been
launched. There is a simple answer to the question posed by this case: A
public library’s choice of some books for its collection, and its rejection of
others, is government speech. I dissent.
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No. 23-50224
What follows is what our opinion should have said.
Introduction
Suppose you are a public librarian. One day, you receive complaints
about two books. The first is It’s Perfectly Normal, a sex-education book for
ages 10 and up. A mother argues that the book, which has explicit cartoons 1
of sexual activity, is inappropriate for children and should be removed. The
second is Little Black Sambo, an old children’s book. A mother argues that
the book, whose cover features a racist caricature, 2 is inappropriate for
children and should be removed. The librarian sees some sense in both
complaints. But does the Constitution let her pull either book off the shelves?
The district court in this case said no. Agreeing with Plaintiffs, the
court ruled that the Free Speech Clause bars a public library from removing
any book based on disagreement with its contents. So, the court ordered the
Llano County library to reshelve 17 books, including It’s Perfectly Normal.
County officials had removed those books, Plaintiffs alleged, after patrons
complained about their treatment of sexual and racial themes. The officials
now appeal, arguing the injunction was based on a mistaken view of how the
Free Speech Clause constrains a library’s collection decisions.
The majority now affirms the district court’s Free Speech ruling. Op.
2. In doing so, the majority invents “rules” to discern when the Free Speech
Clause bars libraries from removing books. Id. at 11. Here they are:
1. Libraries “may consider books’ contents in making curation
decisions.” Ibid. (citing United States v. Am. Libr. Ass’n, Inc., 539
U.S. 194, 204 (2003) [ALA] (plurality)).
_____________________
11
Scroll to page 43, infra, to see some of them.
2
Scroll to page 24, infra, to see it.
2
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2. But patrons have the “right to receive information and ideas.”
Ibid.(quoting Stanley v. Georgia,394 U.S. 557, 564
(1969)).
3. A library violates that right if its decision to remove a book is
“‘substantially motivated’ by the desire to deny ‘access to ideas
with which [the library] disagree[s].’” Id. at 11–12 (quoting Bd. of
Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S.
853, 871 (1982) [Pico] (plurality)).
4. But a library can remove books “based on . . . the accuracy of
the[ir] content,” id. at 15, or “based on a belief that the books [are]
‘pervasively vulgar’ or on grounds of ‘educational suitability,’” id.
at 21 (quoting Campbell v. St. Tammany Par. Sch. Bd., 64 F.3d 184,
188–89 (5th Cir. 1995)).
Henceforth, these rules will govern each and every public librarian in this
circuit, each and every time she takes a book out of circulation. 3 And who will
apply these rules? Federal judges, naturally. You’ve heard of the Soup Nazi?
Say hello to the Federal Library Police.
As I explain below, the majority’s rules lack any grounding in the First
Amendment or common sense. The underlying “right” the rules supposedly
protect comes from a 50-year-old case recognizing the freedom to peruse
obscene materials—not in a public library, but “in the privacy of a person’s
own home.” Id.at 11 (quoting Stanley,394 U.S. at 564
) (emphasis added). The
rules themselves are facially absurd: by the majority’s own admission, a
librarian can remove The Autobiography of David Duke only if it has a “poor
circulation history.” Id. at 12. Moreover, the rules will be a nightmare to
apply. In this very case, the two judges in the majority cannot even agree on
how they apply to crude children’s books like I Broke My Butt! Compare id. at
_____________________
3
The majority “decline[s]” to say whether the rules also govern a librarian’s
“initial selection” of books, id. at 16 n.8. We will presumably find that out in litigation—
coming soon to a federal court near you—over whether a library “unconstitutionally”
chose not to acquire explicit sex-education books for 10-year-olds.
3
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No. 23-50224
21 n.11, with Op. 1, 3 n.2 (Southwick, J., concurring in part and concurring in
the judgment in part). So, we can look forward to years of litigation testing
whether a librarian’s “substantial motivation” for removing Gary the Goose
and His Gas on the Loose was her “desire to deny access to certain
ideas”(unconstitutional) or rather the belief that the book was “vulgar” or
“educationally unsuitable” (constitutional). 4
What a train wreck. It has never been the law that the Free Speech
Clause bars a public library from selecting or removing books based on
content or viewpoint. To the contrary, “[a] library’s need to exercise
judgment in making collection decisions depends on its traditional role in
identifying suitable and worthwhile material.” ALA, 539 U.S. at 208
(plurality). Plainly, that involves choosing some books, and rejecting others,
because of what they say or how they say it. If a library could not do that, it
would be a warehouse, not a library.
Imagine if a library had to feature books of all viewpoints. Alongside
history books, it would have to shelve conspiracy theories. See, e.g., Randy
Walsh, The Apollo Moon Missions: Hiding a Hoax in
Plain Sight (2018). Alongside medical books, it would have to shelve
quackeries. See, e.g., L. Ron Hubbard, Dianetics: The Modern
Science of Mental Health (2007). Alongside books on Jewish
history, it would have to shelve books denying the Holocaust. See, e.g.,
Robert Faurisson, The Diary of Anne Frank—A Forgery?
(1985). How preposterous. 5 A public librarian can, without transgressing the
_____________________
4
On a more serious note, the majority judges also split over “sexually explicit”
children’s books and books that may “promote[] grooming” of minors. See Op. 2–3
(Southwick, J., concurring in part and concurring in the judgment in part).
5
The majority’s response to the Holocaust-denial hypo is equally preposterous. A
librarian can’t remove the book because she “dislikes the ideas in it” but can remove the
4
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No. 23-50224
Free Speech Clause, reject such books—precisely because she rejects their
viewpoint. Just so, if a librarian finds such books on the shelves, she can
remove them. See ALA, 539 U.S. at 204 (“The librarian’s responsibility . . . is
to separate out the gold from the garbage.”) (plurality) (quoting W. Katz,
Collection Development: the Selection of Materials
for Libraries 6 (1980)).
There is a simple answer to the question posed by this case: A public
library’s choice of some books for its collection, and its rejection of others, is
government speech. “With respect to the public library, the government
speaks through its selection of which books to put on the shelves and which
books to exclude.” People for the Ethical Treatment of Animals v. Gittens, 414
F.3d 23, 28(D.C. Cir. 2005) [PETA]. This conclusion is supported by a long line of Supreme Court precedent, as well as authority from our sister circuits.6 It means the Free Speech Clause does not constrain a public library’s collection decisions. The Clause provides no coherent standard against which to judge a library’s inescapably expressive decision about which books it deems “suitable and worthwhile” and which it does not. ALA,539 U.S. at 208
(plurality).
In other words, the Constitution does not deputize federal judges as
the Library Police.
_____________________
book if she questions the “accuracy” of Holocaust-denial. Op. 14–15. What’s the
difference? See infra note 17 (discussing this further).
6
See infra Part III(B)(1)–(2) (discussing Ark. Educ. Television Comm’n v. Forbes,
523 U.S. 666(1998); Nat’l Endowment for the Arts v. Finley,524 U.S. 569
(1998); ALA,539 U.S. 194
; Pleasant Grove City v. Summum,555 U.S. 460
(2009); Sutliffe v. Epping School District,584 F.3d 314
(1st Cit. 2009); Ill. Dunesland Pres. Soc’y v. Ill. Dep’t of Nat. Res.,584 F.3d 719
(7th Cir. 2009); PETA,414 F.3d 23
).
5
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No. 23-50224
I. Background
A. Facts and Proceedings
Plaintiffs are seven patrons of the Llano County public library. Llano
County lies about 80 miles northwest of Austin and has a population of just
over 21,000. The county’s public library system has three branches, located
in Llano (the county seat), Kingsland, and Buchanan Dam. Amber Milum
serves as the library system director. See Tex. Local Gov’t Code
§ 323.005(a) (providing for appointment of a “county librarian”). The
library is under the general supervision of the county commissioners court
and County Judge Ron Cunningham. See id. § 323.006 (providing “[t]he
county library is under the general supervision of the commissioners court”
and “also under the supervision of the state librarian”).
In April 2022, Plaintiffs sued Cunningham, Milum, the
commissioners court, and the library board (collectively, “Defendants”) in
federal district court. They claimed Defendants violated their “First
Amendment right to access and receive ideas by restricting access to certain
books based on their messages and content.” According to Plaintiffs, the
books were targeted because Defendants objected to their treatment of sexual
or racial themes. Plaintiffs argued this constituted “viewpoint
discrimination” in violation of the First Amendment’s Free Speech Clause. 7
Following discovery, Defendants moved to dismiss based on standing,
mootness and failure to state a claim. Plaintiffs moved for a preliminary
injunction based on their First Amendment claims. In October 2022, the
district court held a two-day hearing with testimony from seven witnesses.
_____________________
7
Plaintiffs also alleged a Fourteenth Amendment due process claim. That claim is
not at issue because the district court did not rely on it to grant a preliminary injunction.
6
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No. 23-50224
The testimony focused on 17 books removed from the Llano branch.
Seven of them—which the parties call the “Butt and Fart Books”—are a
series of children’s books with titles like: I Broke My Butt! and Freddie the
Farting Snowman. Another book is the well-known children’s story In the
Night Kitchen by Maurice Sendak, which contains drawings of a naked
toddler. Another is a sex-education book for pre-teens, It’s Perfectly Normal,
which has cartoon depictions of explicit sexual activity. Three are young-
adult books touching on sexuality and homosexuality (Spinning, Shine, Gabi:
A Girl in Pieces). Two portray gender dysphoric children and teenagers (Being
Jazz and Freakboy). Two others discuss the history of racism in the United
States (Caste and They Called Themselves the K.K.K.). 8
Defendants generally testified that the books at issue were removed,
not because of disagreement with their content, but as a result of a standard
“weeding” method known as “Continuous Review, Evaluation, and
Weeding” or “CREW.” Under this approach, books are weeded according
to the so-called “MUSTIE” factors: Misleading, Ugly, Superseded,
Trivial, Irrelevant, and Elsewhere. So, a book might be weeded because it
was inaccurate (“misleading”), damaged (“ugly”), outdated
(“superseded”), silly (“trivial”), seldom checked out (“irrelevant”), or
available at another branch (“elsewhere”).
_____________________
8
The full list of books is: My Butt is So Noisy!; I Broke my Butt!; I Need a New Butt!,
all by Dawn McMillan; Larry the Farting Leprechaun; Gary the Goose and His Gas on the
Loose; Freddie the Farting Snowman; Harvey the Heart Has Too Many Farts, all by Jane
Bexley; It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health by Robie
H. Harris and Michael Emberley; In the Night Kitchen by Maurice Sendak; 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; Being Jazz: My Life as a
(Transgender) Teen by Jazz Jennings; Freakboy by Kristin Elizabeth Clark; Shine by Lauren
Myracle; Gabi, a Girl in Pieces by Isabel Quintero; Spinning by Tillie Walden; and Under
the Moon: a Catwoman Tale by Lauren Myracle.
7
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No. 23-50224
For their part, Plaintiffs portrayed this weeding rationale as
pretextual. According to Plaintiffs, Milum actually removed the books under
orders from Cunningham and the commissioners court (in particular,
Commissioner Jerry Don Moss). Plaintiffs argued Cunningham and Moss
were responding to complaints from the public—spearheaded by Rochelle
Wells and Bonnie Wallace—about some books’ treatment of sex and race.
They also emphasized that, after dissolving the existing library board, the
commissioners put Wells and Wallace on a new advisory board with input
into the library’s selections.
Testimony also addressed the library’s decision to stop providing
access to e-books and audiobooks through the “Overdrive” online database.
Witnesses testified this was done because Overdrive’s filters were unable to
keep children from accessing books containing graphic depictions of sexual
activity. The library removed Overdrive and replaced it with a database called
“Bibliotheca.” Some of the 17 removed books remain accessible through
Bibliotheca, although the record does not make clear which ones.
Finally, witnesses described an “in-house checkout system” at the
Llano branch which contained physical copies of the 17 removed books.
Although patrons could check out the books through this system, the books
were kept behind the counter and not listed in the catalog. The books had
been donated to the library by an anonymous donor who turned out to be one
of Defendants’ lawyers.
B. District Court Decision
1. Motion to Dismiss
The district court granted Defendants’ motion to dismiss in part and
denied it in part. See generally Little v. Llano County, 1:22-CV-424-RP, 2023
WL 2731089 (W.D. Tex. Mar. 30, 2023). First, the court found that Plaintiffs
had standing because they wanted to check out the 17 books but could not.
8
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No. 23-50224
Next, the court found that creation of the in-house checkout system after the
litigation began did not moot Plaintiffs’ claims. The court did find, however,
that Plaintiffs’ claims related to Overdrive were moot because it had been
replaced with Bibliotheca, a “comparable online service.” The court
therefore dismissed claims related to Overdrive without prejudice.
The court then turned to Plaintiffs’ Free Speech claims with respect
to the 17 books. It acknowledged that, in the 2003 American Library
Association decision, a plurality of the Supreme Court recognized public
libraries’ “broad discretion” over the content of their collections. See ALA,
539 U.S. at 205 (plurality). But the district court believed that this discretion
“applies only to materials’ selection,” not to their removal.
As to removals, the district court adopted a standard from our 1995
decision in Campbell v. St. Tammany Parish School Board. That case held that
the First Amendment bars school officials from “removing books from
school library shelves ‘simply because they dislike the ideas contained in
those books.’” Campbell, 64 F.3d at 188(quoting Pico,457 U.S. at 872
(plurality)). The district court also suggested that public libraries are “limited public forums” for First Amendment purposes. For that proposition, the court relied on a federal district court’s 2000 decision in Sund v. City of Wichita Falls,121 F. Supp. 2d 530, 548
(N.D. Tex. 2000).
Accordingly, the court denied Defendants’ motion to dismiss. The
court ruled Plaintiffs stated a valid First Amendment claim by pleading that
“Defendants’ conduct was substantially motivated by a desire to remove
books promoting ideas with which [they] disagreed.” The court also rejected
Defendants’ argument that the removal decisions were “government speech
to which the First Amendment does not apply.” The court believed that any
precedents supporting this proposition, including ALA, “mostly involve the
initial selection, not removal, of books.” See, e.g., PETA, 414 F.3d at 28
9
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No. 23-50224
(“With respect to the public library, the government speaks through its
selection of which books to put on the shelves and which books to exclude.”).
Finally, the court rejected Defendants’ argument that First
Amendment cases concerning school libraries, like Campbell, do not apply to
disputes over the books available in public libraries. To the contrary, the
court reasoned that the First Amendment right “to access to information”
applied in Campbell should have “‘even greater force when applied to public
libraries,’ since public libraries are ‘designed for freewheeling inquiry.’”
2. Preliminary Injunction
The court then turned to Plaintiffs’ motion for a preliminary
injunction. The court’s analysis started with this overarching Free Speech
principle, carried over from its motion to dismiss ruling: “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.” The court found Plaintiffs were
substantially likely to succeed in showing that Defendants engaged in both
viewpoint and content discrimination by removing the 17 books at issue.
As to viewpoint discrimination, the court found Defendants removed
books “based on complaints that the books were inappropriate.” For
example, Defendants removed the Butt and Fart Books based on complaints
about those books’ “appropriateness.” Other books were removed after
Wallace and Wells emailed Cunningham and Moss lists of books generally
identified as “pornographic filth” and “CRT and LGBTQ books.”
The court rejected Defendants’ argument that the removals were
“simply part of the library system’s routine weeding process.” To the
contrary, the court found Plaintiffs “clearly show[ed] that Defendants’
decisions were likely motivated by a desire to limit access to the viewpoints
to which Wallace and Wells objected.”
10
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No. 23-50224
The court also found Plaintiffs were likely to succeed on their claim
that Defendants removed books based on “content-based restrictions.”
“Content-based restrictions on speech,” the court stated, “are
presumptively unconstitutional and subject to strict scrutiny.” See Reed v.
Town of Gilbert, 576 U.S. 155(2015); United States v. Playboy Ent. Grp., Inc.,529 U.S. 803, 813
(2000).
The court ruled that Plaintiffs clearly met that standard. It found
“sufficient evidence to suggest” that Defendants’ weeding explanation was
“pretextual.” “Whether or not the books in fact qualified for ‘weeding’
under the library’s existing policies,” the court stated, “there is no real
question that the targeted review was directly prompted by complaints from
patrons and county officials over the contents of these titles.” Finally, the
court found the book removals were unlikely to survive strict scrutiny—i.e.,
they were “not narrowly tailored to serve a compelling state interest.”
Finding the remaining factors met, the court entered a preliminary
injunction: (1) requiring Defendants to “return all print books that were
removed because of their viewpoint or content,” including the 17 books
discussed above; (2) requiring Defendants to “update” all library catalogs
“to reflect that these books are available for checkout”; and (3) enjoining
Defendants from “removing” any books from the catalogs “for any reason
during the pendency of this action.”
Defendants timely appealed. They also moved to expedite the appeal
and for an injunction pending appeal. A motions panel of our court granted
the motion to expedite. 9 Nearly a year later, the panel majority now affirms
_____________________
9
The motions panel carried the injunction motion with the appeal. When this panel
was assigned to the case, it granted an administrative stay of the district court proceedings
pending its decision.
11
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No. 23-50224
the district court’s First Amendment ruling, while narrowing the preliminary
injunction to requiring the return of 8 of the 17 removed books and updating
library catalogs accordingly. Op. 26–27. The majority does not order all of the
books returned because the two judges in the majority do not agree how the
Free Speech standard they adopt applies to the Butt and Fart Books and to
two books with certain sexual content. Compare id. at 21 n.11 with Op. 1–3
(Southwick, J., concurring in part and concurring in the judgment in part).
II. Standard of Review
“We review a preliminary injunction for abuse of discretion,
reviewing findings of fact for clear error and conclusions of law de novo.” Rest.
Law Ctr. v. U.S. Dep’t of Labor, 66 F.4th 593, 597(5th Cir. 2023) (citation omitted). “When a district court applies incorrect legal principles, it abuses its discretion.” Planned Parenthood of Greater Tex. v. Kauffman,981 F.3d 347, 354
(5th Cir. 2020) (en banc) (citation omitted).
To obtain the “extraordinary remedy” of a preliminary injunction,
the movant must show he is likely to prevail on the merits and also
“demonstrate a substantial threat of irreparable injury if the injunction is not
granted; the threatened injury outweighs any harm that will result to the non-
movant if the injunction is granted; and the injunction will not disserve the
public interest.” Atchafalaya Basinkeeper v. U.S. Army Corps of Eng’rs, 894
F.3d 692, 696 (5th Cir. 2018) (citation omitted).
III. Discussion
Defendants marshal a phalanx of arguments for vacating the
preliminary injunction. Only one need be addressed. The district court held
that the Free Speech Clause 10 bans a public library from considering the
_____________________
10
“Congress shall make no law . . . abridging the freedom of speech[.]” U.S.
Const. amend. I.
12
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No. 23-50224
content or viewpoint of books when deciding whether to remove them. I
agree with Defendants that this was legal error.
Below, I first (A) explain how the district court erred and how the
panel majority deepens that error, and then (B) set out how the Free Speech
Clause applies to a public library’s choice of the materials in its collection. 11
A. Public Libraries Have Broad Discretion to Shape Their
Collections.
The district court began on the right foot by citing the Supreme
Court’s ALA decision.
ALA addressed a federal law giving public libraries money for internet
access, provided they installed filters to block material harmful to children.
The Court—in a four-justice plurality with two concurrences—rejected a
facial First Amendment challenge to the law. See 539 U.S. at 198–99, 214
(plurality); id. at 215 (Kennedy, J., concurring in the judgment); id. at 216
(Breyer, J., concurring in the judgment). 12 ALA is pertinent because it drew
on libraries’ discretion to shape their collections, defined to include not only
the internet but also books and other materials. See, e.g., id. at 207 (plurality)
_____________________
11
So, there is no need to address Defendants’ other arguments, which are:
(1) Plaintiffs’ First Amendment right “to access and receive information” has not been
violated because they can check out the 17 books through the in-house system; (2) for the
same reason, Plaintiffs do not show irreparable harm; (3) even assuming the district court
did not err on the First Amendment standard, it clearly erred in ruling Milum engaged in
viewpoint or content discrimination; (4) the preliminary injunction is overbroad (although
the majority finds it is, which is correct as far as it goes); (5) the balance of equities and
public interest do not clearly favor preliminary injunctive relief.
12
While not rejecting the plurality’s analysis of the facial challenge, Justice
Kennedy wrote separately that he would consider an as-applied challenge if an adult patron
showed he was blocked from viewing “constitutionally protected Internet material.” Id. at
215 (Kennedy, J., concurring in the judgment). Justice Breyer also concurred, but unlike
the plurality he would have applied heightened scrutiny. See id. at 216 (Breyer, J.,
concurring in the judgment).
13
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No. 23-50224
(describing internet as “a technological extension of the book stack”)
(citation omitted); id. at 217 (Breyer, J., concurring) (explaining “a library’s
‘collection’” is “broadly defined to include all the information the library
makes available”).
The key rationale lies in the plurality’s statement, quoted by the
district court, that public libraries have “broad discretion” over which
materials they make available to the public. “Public library staffs necessarily
consider content in making collection decisions and enjoy broad discretion in
making them.” ALA, 539 U.S. at 205(plurality). The district court could have quoted many other passages saying the same thing. 13 The point is captured most vividly by this advice from a library manual, which the plurality quoted approvingly: “The librarian’s responsibility . . . is to separate out the gold from the garbage.”Id. at 204
(plurality) (quoting
Katz, supra, at 6).
ALA makes one thing clear: the Free Speech Clause allows public
libraries to shape their collections based on the content and viewpoint of
books. Indeed, the notion that the Clause forbids this is preposterous. How
else are libraries supposed to choose the books on their shelves if not by
“discriminating” according to content and viewpoint? “[S]eparat[ing] out
the gold from the garbage” means—by definition—rejecting some books and
_____________________
13
See, e.g., 539 U.S. at 204(plurality) (“To fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons.”);ibid.
(explaining a library’s “goal has never been to provide ‘universal coverage,’” but rather “to provide materials ‘that would be of the greatest direct benefit or interest to the community’”) (citation omitted);ibid.
(observing “libraries collect only those materials deemed to have ‘requisite and appropriate quality’”);id. at 208
(“A library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material[.]”);id. at 217
(Breyer, J., concurring in the
judgment) (referring to “the discretion necessary to create, maintain, or select a library’s
‘collection’”).
14
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No. 23-50224
preferring others because of what they say and how they say it. Ibid. This is
common sense, and ALA plainly supports it.
Imagine if a library had to keep just any book in circulation—no matter
how out-of-date, inaccurate, biased, vulgar, lurid, or silly. It would be a
warehouse, not a library. By definition, libraries curate what they offer. A
library’s “goal has never been to provide universal coverage,” but rather to
“collect only those materials deemed to have requisite and appropriate
quality.” Id. at 204(plurality) (cleaned up). 14 Selecting materials for their “requisite and appropriate quality” means choosing some content and viewpoints while rejecting others. No one thinks the Constitution requires public libraries to shelve books promoting quackeries like phrenology, spontaneous generation, tobacco-smoke enemas, Holocaust denial, or the theory that the Apollo 11 moon landing was faked. 15 See Frederick A. Schauer, Principles, Institutions, and the First Amendment,112 Harv. L. Rev. 84
, 106 (1998) (“Schauer”) (few people would “disagree . . . with
the ability of a librarian to select books accepting that the Holocaust
_____________________
14
See also id. at 217 (Breyer, J., concurring in the judgment) (rejecting strict
scrutiny because it “would unreasonably interfere with the discretion necessary to create,
maintain, or select a library’s ‘collection’”).
15
See, e.g., Lydia Kang, Quackery: A Brief History of the Worst
Ways to Cure Everything (2017) (discussing 18th-century notion that “tobacco-
smoke enemas” could revive drowning victims); Henry Harris, Things Come to
Life: Spontaneous Generation Revisited (2002) (discussing “the theory that
inanimate material can, under appropriate conditions, generate life forms by completely
natural processes”); Audiey Kao, Medical Quackery: The Pseudo-Science of Health and Well-
Being, 2 Virtual Mentor: A.M.A. J. Ethics 30, 30 (Apr. 2000) (explaining that
early-20th-century phrenology practitioners purported to examine a person’s character by
“measur[ing] the conformation of the skull” with a “psychograph”); Deborah E.
Lipstadt, Denying the Holocaust: The Growing Assault on Truth
and Memory (1994) (discussing history of Holocaust denial).
15
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No. 23-50224
happened to the exclusion of books denying its occurrence”). The First
Amendment does not force public libraries to have a Flat Earth Section.
How, then, did the district court—and now the majority—reach the
mind-boggling conclusion that the Free Speech Clause bars libraries from
removing books based on content or viewpoint? By making a series of legal
errors. First, the district court and the majority invented a right to “receive
information and ideas” in a public library. Op. 11. But that supposed right
comes from a case recognizing the right to possess obscene materials in one’s
private home. Second, the district court and the majority each drew on our
court’s Campbell decision to constrain a library’s discretion. But Campbell
applies in the unique realm of school libraries and extending it to public
libraries runs headlong into the Supreme Court’s subsequent ALA decision.
Furthermore, the district court relied on Campbell to make a nonsensical
distinction (which the majority does not accept) between a library’s acquiring
and removing books. Third, the district court wrongly applied forum analysis
to a library’s bookshelves—an analysis which, again, the majority apparently
disavows. Finally, the majority aggravates the district court’s errors by
inventing “rules” for librarians that are self-contradictory and will prove
impossible to apply.
1. The Stanley v. Georgia right to privately possess obscenity
does not extend to a public library.
The majority stumbles out of the gate by grounding its holding on the
supposed right of library patrons “to receive information and ideas.” Op. 9,
11. The majority excavates this right from Stanley v. Georgia, 394 U.S. 557,
564 (1969). Op. 9. But even a casual perusal of Stanley shows why that
decision does not translate to a public library.
Stanley recognized a person’s right to view obscene books and films
at home. As the Supreme Court put it: the petitioner was “asserting the
16
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No. 23-50224
right . . . to satisfy his intellectual and emotional needs in the privacy of his
own home.” Stanley, 394 U.S. at 565. This is the context of the Court’s recognizing a “right to receive information and ideas.”Id. at 564
; see alsoibid.
(observing the case involved “a prosecution for mere possession of printed or filmed matter in the privacy of a person’s own home”) (emphasis added);ibid.
(noting the petitioner’s “right to be free . . . from unwanted governmental
intrusions into one’s privacy”) (emphasis added).
It is too obvious for words why Stanley’s right to privately peruse
obscenity at home cannot extend to a public library. But I will say it anyway.
The home is private while the public library is public. Mr. Stanley won the
right to watch legally obscene films at his house (presumably with the shades
drawn). See id. at 563(recognizing Stanley’s right to privately view materials whose distribution could be banned under Roth v. United States,354 U.S. 476
(1957)); see also Miller v. California,413 U.S. 15
(1973). He did not win the right to watch dirty movies in a reading room at the local county library. Cf. United States v. Marchant,803 F.2d 174, 178
(5th Cir. 1986) (noting that “the attempt to extend Stanley ‘overlooks the explicitly narrow and precisely delineated privacy right on which Stanley rests’”) (quoting United States v. 12 200-ft. Reels of Super 8mm. Film,413 U.S. 123, 127
(1973)).
No precedent has ever extended Stanley to a public library. The
closest anyone has come is Justice Brennan’s separate opinion in Pico. See
Pico, 457 U.S. at 867(op. of Brennan, J., joined by Marshal and Stevens, JJ.). That opinion, which only two other Justices joined, would have extended the Stanley right to a school library.Id.
at 856–57 (op. of Brennan, J.). But at least five other Justices rejected the idea. Seeid. at 883
(White, J., concurring in the judgment);id. at 885
(Burger, C.J., joined by Powell, Rehnquist, and O’Connor, JJ., dissenting). And our Campbell decision—discussed in detail below—identified Justice White’s Pico concurrence as the narrowest ground for the judgment. See Campbell,64 F.3d at 189
(stating that “Justice White’s
17
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concurrence in Pico represents the narrowest grounds for the result in that
case”). Justice White’s concurrence rejected Justice Brennan’s “dissertation
on the extent to which the First Amendment limits the discretion of the
school board to remove books from the school library.” Pico, 457 U.S. at 883
(White, J., concurring in the judgment). So, our own precedent belies the
notion that Stanley applies to a school library.
Finally, consider the absurdity of extending Stanley’s “right to receive
information” to a public library. It suggests that a public library has a
constitutional obligation to make sure patrons “receive” certain materials.
Cf. id. at 888(Burger, C.J., dissenting) (explaining Stanley’s “right to receive information and ideas’ . . . does not carry with it the concomitant right to have those ideas affirmatively provided at a particular place by the government”). It also suggests that a public library must not only avoid removing certain books but must acquire those books as well. Seeid. at 916
(Rehnquist, J., dissenting) (explaining the “distinction between acquisition
and removal makes little sense” because “[t]he failure of a library to acquire
a book denies access to its contents just as effectively as does the removal of
the book from the library’s shelf”). None of that makes any sense.
The majority’s Free Speech misadventure should have stopped in its
tracks here. Stanley’s right to peruse obscenity in private has no application
to someone’s desire to read books, obscene or not, in a public library.
2. Just as when they acquire books, public libraries can
remove books based on content or viewpoint.
The district court and the majority, in different ways, both mistakenly
drew on our Campbell decision. The district court found in Campbell a
constitutional distinction between a library’s acquiring and removing books
that collapses under the slightest scrutiny. For its part, the majority tries to
“harmonize” Campbell with ALA by using Campbell to artificially constrict
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public libraries’ discretion to shape book collections. Op. 13. But the cases
are discordant. Campbell addresses the unique school library context and
extending it to public libraries flies in the face of ALA and common sense.
Contrary to the district court’s reasoning, the Free Speech Clause
does not apply differently to a library’s decision to acquire books as opposed
to its decision to remove them. That bizarre dichotomy finds no support in
ALA, again the most on-point decision. The opinions in that case discuss
libraries’ discretion in “decid[ing] what material to provide to their
patrons,” in “selecting . . . material,” in “making collection decisions,” and
in “creat[ing], maintain[ing], or select[ing]” its materials. See ALA, 539 U.S.
at 204, 205(plurality op.);id. at 217
(Breyer, J., concurring in the judgment).
None suggests that a library’s discretion, at its apex when acquiring a book,
somehow vanishes if a library retires the book because it is now inaccurate or
biased or no longer of interest. That is good news, because the distinction
between acquiring and removing books makes no sense.
To support the supposed distinction between acquisition and
removal, the district court believed it was bound by our 1995 decision in
Campbell. As noted, Campbell held that the First Amendment bars officials
from “remov[ing] books from school library shelves simply because they
dislike the ideas contained in these books.” 64 F.3d at 188(cleaned up) (citation omitted). The court found a fact dispute over why officials removed a book called Voodoo & Hoodoo from St. Tammany Parish school libraries and remanded for further inquiry.Id. at 190
. Even assuming Campbell contains
some distinction between acquiring and removing books, Campbell does not
apply here for at least three reasons.
First, Campbell addressed the “unique role of the school library.” Id.
at 188 (quoting Pico, 457 U.S. at 868–69 (plurality)). It therefore had to
balance “public school officials[’] . . . broad discretion in the management of
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school affairs” against “students’ First Amendment rights.” Id at 187–88.
Those “competing considerations,” Campbell stressed, lay “at the core of
this First Amendment book removal case.” Id. at 188; see alsoid. at 190
(noting “the special role of the school library as a place where students may
freely and voluntarily explore diverse topics”).
Campbell’s competing considerations are absent here. A county
library does not implicate the “unique” First Amendment concerns at play
in a public school. Id. at 188; see alsoibid.
(observing a school library is “the principal locus” of students’ “free[dom] to inquire, to study[,] and to evaluate”) (quoting Pico, 457 U.S. at 868–69 (plurality)). While no doubt important to the local community, a county library is—to state the obvious— not part of a public school. Cf. Tinker v. Des Moines Indep. Comty. Sch. Dist.,393 U.S. 503, 506
(1969) (discussing students’ First Amendment rights “in
light of the special characteristics of the school environment”). So, there is
no basis for transplanting Campbell into the realm of public libraries. 16
Second, even if one were inclined to extend Campbell to public
libraries, ALA would stand in the way. Campbell prohibits removing a school
library book if the “decisive factor” is “dislike [of] the ideas contained in
th[e] book[].” 64 F.3d at 188(quoting Pico, 457 U.S. at 870–72). By contrast, ALA recognizes public libraries’ “broad discretion to decide what material to provide to their patrons.” ALA,539 U.S. at 204
(plurality); see alsoid.
at
_____________________
16
The majority responds by saying that Campbell applies both “in and out of the
school context.” Op. 14. Not so. Campbell positively marinates in the school context. See,
e.g., Campbell, 64 F.3d at 188(“School officials’ legitimate exercise of control over pedagogical matters must be balanced, however, with the recognition that students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’”) (quoting Tinker,393 U.S. at 506
). To say that Campbell applies “out of the school
context” is to rewrite the decision.
20
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217 (Breyer, J., concurring in the judgment) (discussing “the discretion
necessary to create, maintain, or select a library’s ‘collection’”).
The two standards are incompatible. Suppose a public library
discovers it offers a book promoting Holocaust denial and decides to remove
it. ALA allows that. See ALA, 539 U.S. at 208(plurality) (“A library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material[.]”). Yet, there is no escaping that the book is being removed because the library “dislike[s] the ideas” in it. Campbell,64 F.3d at 188
. 17 So, Campbell would likely forbid what
ALA allows. We cannot extend Campbell in such a way that it conflicts with
an on-point Supreme Court decision, especially one issued long after
Campbell. 18
Third, even assuming Campbell applies to a public library, it would still
conflict with the district court’s First Amendment rationale. The district
court applied strict scrutiny to a public library’s removing a book based on
any consideration of content. But Campbell itself would allow a school library
to remove books “based on a belief that the books were ‘pervasively vulgar’
_____________________
17
The majority’s response to this point is baffling. It claims a librarian does “not
necessarily” remove the Holocaust-denial book because she “dislikes the ideas in it,” but
perhaps because she objects to “the accuracy of the content.” Op. 14–15. What in heaven’s
name is the difference? And does the majority not see that just about every disagreement
over a book’s “ideas” can be re-imagined as a disagreement about a book’s “accuracy”?
And even if there is some metaphysical distinction between the two concepts, the majority
is sentencing the judiciary to an eternity of hair-splitting litigation over whether a librarian’s
motives for removing a book are about “ideas” or “accuracy.”
18
This also answers the majority’s view that First Amendment rights “outside the
school are even more robust.” Op. 13. ALA teaches that the opposite is true: because public
libraries do not have to contend with the sometimes competing speech interests of students
and administrators, they have “broad discretion” to curate their collections. In any event,
as discussed, the majority’s whole conception of library patrons’ “rights” in this context
is mistaken, based on an illogical extension of Stanley. See supra Part III(A)(1).
21
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or on grounds of ‘educational suitability.’” Campbell, 64 F.3d at 189 (quoting
Pico, 457 U.S. at 870–72). In other words, because of objectionable content or
viewpoint. So, even if Campbell applied here (which it could not under ALA),
it would impose a First Amendment standard different from the district
court’s. That is yet another reason not to apply Campbell to a public library. 19
Instead of addressing whether Campbell supports a constitutional
distinction between acquiring and removing books, the majority hides in the
tall weeds. In a footnote, it “decline[s] to expressly address” this question
because Campbell only involved removal. Op. 16 n.8. Come on. If one’s right
to “receive information” is violated by a library’s removing a book, then the
obvious question is whether that right is also violated by a library’s not
acquiring the book in the first place. I suspect the reason the majority ducks
this question is that answering it would nuke its position. Does anyone think
patrons have a First Amendment right to make libraries purchase their
preferred books? Of course not. But a library just as surely denies a patron’s
right to “receive information” by not purchasing a book in the first place as
it does by pulling an existing book off the shelves.
The majority does embrace Campbell, however, for the proposition
that public librarians’ discretion must be limited when they remove books.
_____________________
19
The majority concedes the district court’s opinion was “somewhat imprecise”
on this point, Op. 15, yet waves away any problem by stating: “But Campbell’s rule holds
true regardless: if the remover’s motivation is to deny access to ideas with which he or she
disagrees, the remover violates the Constitution.” Ibid. Six pages later, though, the
majority reintroduces the same problem by conceding a librarian can remove books that are
“pervasively vulgar” or “educationally unsuitable.” Id. at 21. The majority has thus
simultaneously missed my point and proved it: there is no discernible difference between
(1) removing a book because of disagreement with its “ideas,” and (2) removing a book
because it is “vulgar” or “educationally unsuitable.” Maybe there is a world where a
librarian can, at the same time, agree with a book’s ideas and yet believe the book is so crass
or stupid that it should be pulled off the shelves. It is not our world, though.
22
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See Op. 11, 18. The majority is mistaken here, too. Perhaps Campbell gives
some support to curtailing school librarians’ discretion over book removals,
given the sometimes competing interests of school officials and students. See
Campbell, 64 F.3d at 188 (I express no opinion on whether Campbell was
correctly decided). But that idea falls flat when applied to public librarians,
who must have the freedom to remove books for various reasons inescapably
related to the books’ content and viewpoint.
Times change and library collections change along with them. Here is
one mundane example. Not long ago, astronomy books taught that Pluto was
a full-fledged planet. In 2006, Pluto was demoted to a “dwarf.” See Int’l
Astronomical Union, Resolution B6, XXVI General
Assembly (2006) (“Pluto is a ‘dwarf planet’ . . . and is recognized as the
prototype of a new category of Trans-Neptunian Objects.”). If a public
library replaces books listing Pluto as the outermost planet with newer books
listing Neptune, does it commit “content or viewpoint discrimination”? Yes,
it does. Otherwise, it would commit library malpractice.
Two more examples. Suppose a public librarian discovers on the
shelves the 1943 book Sex Today in Wedded Life, which offers this advice to
married women:
Don’t bother your husband with petty troubles and complaints
when he comes home from work. Be a good listener. Let him
tell you his troubles; yours will seem trivial in comparison.
Remember your most important job is to build up and maintain
his ego (which gets bruised plenty in business). Morale is a
woman’s business.
Edward Podolsky, Sex Today in Wedded Life (1943). Today,
some may find this viewpoint outdated. Or suppose a librarian discovers an
old children’s book displaying racist stereotypes—one infamous example is
Little Black Sambo (1899):
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Today, a librarian would surely prefer a book depicting race in a better light.
According to Plaintiffs, though, the First Amendment forbids the librarian
from removing either book based on disagreement with their “viewpoint” on
sex or race. That cannot be the law (but it is now, thanks to the majority).
You may be thinking: surely Plaintiffs would not push this idea that
far! You would be wrong. At oral argument, Plaintiffs made their position
crystal clear. See O.A. Rec. at 24:00–27:20. Counsel was asked this
hypothetical:
Q: Let’s say a new librarian comes in and discovers on the
shelves a book by a former Grand Wizard of the Ku Klux
Klan. The book explains why black people are an inferior
race. So she removes it from the shelves. Is that viewpoint
discrimination? And if so is that unconstitutional?
A: In your hypothetical, Judge Duncan, why did she remove it
from the shelves?
Q: Because she found that idea offensive. That black people
are inferior.
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A: If that was her substantial or . . . decisive motivation, then
yes, your honor.
Q: Really? Really?
O.A. Rec. 24:36–25:11. This position is absurd. Yet, incredibly, the majority
agrees with it. We are told that a librarian can only remove “a book by a former
Grand Wizard of the K.K.K. . . . based on lack of interest and poor circulation
history.” Op. 12 (emphasis added). So, if a library’s patrons are keenly
interested in the “viewpoint and message” of, say, The Autobiography of
David Duke—and so they check the book out regularly—then a library cannot
constitutionally remove it. Astounding.
In sum, a public library’s “broad discretion” to shape its collection
applies equally to removing books as to acquiring them. ALA, 539 U.S. at
205 (plurality). And barring public librarians from considering a book’s
viewpoint as a reason for putting it on the shelves, or for taking it off the
shelves, is nonsensical. The district court erred in concluding otherwise and
the majority reinforces that error today.
3. Forum analysis does not apply to a public library’s book
collection.
The district court also supported its decision by characterizing a
library as a “limited public forum” in which viewpoint-based restrictions are
verboten. On appeal, Plaintiffs defend the preliminary injunction on this
basis, arguing that forum analysis applies to a library’s book collection. The
majority appears to disavow this rationale, see Op. 12, but because the district
court and the Plaintiffs rely on it, I will explain why it is mistaken.
Forum analysis is used to assess when government can regulate
private speech on property it owns or controls. See generally Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800(1985); Freedom From Religion Found. v. Abbott,955 F.3d 417
, 426–27 (5th Cir. 2020)
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[“FFRF”]. In traditional public fora—sidewalks, streets, and parks—the
government has little leeway to regulate speech: content- or viewpoint-based
restrictions are strictly scrutinized. FFRF, 955 F.3d at 426(citing Fairchild v. Liberty Indep. Sch. Dist.,597 F.3d 747, 758
(5th Cir. 2010)). 20 The government has more latitude in “limited” public fora, which are “places that the government has opened for public expression of particular kinds or by particular groups.”Ibid.
(citing Chiu v. Plano Indep. Sch. Dist.,260 F.3d 330, 346
(5th Cir. 2001) (per curiam)). There, restrictions are valid if they are “(1) reasonable in light of the purpose served by the forum and (2) do[] not discriminate against speech on the basis of viewpoint.”Id.
at 426–27; see also Pleasant Grove City v. Summum,555 U.S. 460, 470
(2009) (government
“may create a forum that is limited to use by certain groups or dedicated
solely to the discussion of certain subjects,” where it “may impose
restrictions on speech that are reasonable and viewpoint neutral”) (citation
omitted).
To support their argument, Plaintiffs point to three sister-circuit
decisions that deem public libraries some kind of public forum. Those cases
have no bearing on the question before us, however. They address whether
public libraries may evict certain people from their premises—such as sex
offenders, shoeless persons, or a vagrant who menaced library staff and
whose “odor was so offensive that it prevented the [l]ibrary patrons from
using certain areas of the [l]ibrary.” See Doe v. City of Albuquerque, 667 F.3d
1111, 1115(10th Cir. 2012) (sex offenders); Neinast v. Bd. of Tr. of the Columbus Metro. Libr.,346 F.3d 585, 589
(6th Cir. 2003) (shoeless man);
_____________________
20
The same standard applies to “designated” public fora, which are “places that
the government has designated for the same widespread use as traditional public forums.”
Ibid.(citation omitted). In either traditional or designated public fora, however, the government may impose reasonable restrictions on the time, place, and manner of private speech. See, e.g., Minn. Voters All. v. Mansky,585 U.S. 1, 11
(2018) (citation omitted).
26
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Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1247-48
(3rd Cir. 1992) (menacing, odiferous vagrant). Those courts answered that
question by treating a library’s premises as a First Amendment forum. See,
e.g., Kreimer, 958 F.3d at 1261 (concluding public library at issue “constitutes
a limited public forum”).
We need not decide whether this analysis by our sister circuits was
correct. It is one thing to say that a public library’s premises may constitute a
public forum of some sort. For instance, a library might open one of its rooms
to poetry readings by the public and thereby create a limited public forum.
See, e.g., id. at 1259–60 (concluding public library at issue “constitutes a
limited public forum” because “the government intentionally opened the
Library to the public for expressive activity”). But it is entirely another thing
to extend this concept, as Plaintiffs would, to a library’s bookshelves.
Plaintiffs’ cases do not support doing that. They address only whether a
library can evict certain patrons. See, e.g., Neinast, 346 F.3d at 592 (upholding
no-shoes policy because it avoided “tort claims brought by library patrons
who were injured because they were barefoot”). They say nothing about
whether a library can exclude certain books from its shelves.
More to the point, it makes no sense to apply forum analysis to a
library’s book collection. Library shelves are not a community bulletin board:
they are not “places” set aside “for public expression of particular kinds or
by particular groups.” FFRF, 955 F.3d at 426. If they were, libraries would have to remain “viewpoint neutral” in choosing books. See Summum,555 U.S. at 470
(limited public fora’s restrictions must be “viewpoint neutral”).
That would be ridiculous. Libraries choose certain viewpoints (or range of
viewpoints) on a given topic. But they may exclude others. A library can have
books on Jewish history without including the Neo-Nazi take. See, e.g.,
Schauer, supra, at 106 (explaining a librarian may choose books “accepting
27
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No. 23-50224
that the Holocaust happened to the exclusion of books denying its
occurrence”). Forum analysis has no place on a library’s bookshelves.
If there were any doubt, ALA would dispel it. The plurality rejected
the notion that a library’s book collection is a public forum. “A public library
does not acquire Internet terminals in order to create a public forum,” the
plurality explained, “any more than it collects books in order to provide a
public forum for the authors of books to speak.” ALA, 539 U.S. at 206(plurality). We have followed ALA on this point. See Chiras v. Miller,432 F.3d 606, 614
(5th Cir. 2005) (relying on ALA for proposition that neither forum analysis nor heightened scrutiny apply to libraries’ collection decisions) (citing ALA,539 U.S. at 205
(plurality)). A library places books on its shelves for an obvious purpose—“to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.” ALA,539 U.S. at 206
(plurality). That core function is at war with
any notion that the library’s book collection constitutes a public forum.
I said earlier that the majority “appears” to agree with these points.
See Op. 12 (“We agree with Defendants that public forum principles are ‘out
of place in the context of this case.’”) (citation omitted). I am not 100% sure,
though. According to the majority, the notion that a library’s shelves are a
public forum “is not what Plaintiffs argue here.” Ibid. Wrong. On page 42 of
their brief, Plaintiffs argue (incorrectly) that “courts have almost uniformly
held that public libraries are limited public fora to which heightened scrutiny
applies, as the District Court found.” Red Br. at 42. The majority gets around
this by recasting Plaintiffs’ argument: they are not “authors” who want their
books on library shelves, “but instead are patrons who seek to exercise their
right to receive information.” Op. 12. So, we arrive again at the supposed
right to receive information at a public library. See supra Part III(A)(1). Take
away that made-up right, and all the plaintiffs have is their library-shelves-
28
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are-a-public-forum argument. It is wrong, whether the majority wants to
admit it or not.
In sum, First Amendment forum analysis does not apply to a public
library’s book collection. The district court erred by concluding otherwise.
4. The majority’s “rules” are a jurisprudential disaster.
Finally, the majority is not content just to adopt the district court’s
rule that libraries cannot consider content or viewpoint when removing
books. While wrong, that rule is at least straightforward. The majority has
chosen to complexify the matter by inventing its own “rules.” Here they are
again:
1. Libraries “may consider books’ contents in making curation
decisions.” Op. 11 (citing ALA, 539 U.S. at 204 (plurality)).
2. But patrons have the “right to receive information and ideas.”
Ibid.(quoting Stanley,394 U.S. at 564
).
3. A library violates that right if its decision to remove a book is
“‘substantially motivated’ by the desire to deny ‘access to ideas
with which [the library] disagree[s].’” Id. at 11–12 (quoting Pico,
457 U.S. at 871 (plurality)).
4. But a library can remove books “based on . . . the accuracy of
the[ir] content,” id. at 15, or “based on a belief that the books [are]
‘pervasively vulgar’ or on grounds of ‘educational suitability,’” id.
at 21 (quoting Campbell, 64 F.3d at 188–89).
These rules are ill-conceived, self-contradictory, and impossible to apply.
First, like Frankenstein’s Monster, the rules are stitched together
from bits and parts of four cases—ALA, Stanley, Pico, and Campbell. As I’ve
already explained, though, only one of those cases—ALA—is actually
relevant because it alone addresses the subject at hand: a public library’s
discretion to shape its collection. See supra Part III. The other cases are
inapposite. Stanley is about private viewing of obscenity, and Pico / Campbell
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are about school libraries (and both pre-date ALA). 21 The bottom line,
though, is that the majority’s rules are the majority’s creation. No binding
precedent, either of the Supreme Court or our court, required their adoption.
Second, the rules contradict themselves. Suppose a librarian removes
Henry Miller’s 1934 book, Tropic of Cancer, based on complaints that the
book is “debased and morally bankrupt” and uses “vivid, lurid, [and]
salacious language.” See Besig v. United States, 208 F.2d 142, 145 (9th Cir.
1953) (affirming finding that Tropic of Cancer was obscene).The book was a
font of controversy in the 1950’s and 60’s because of its explicit treatment of
sexual themes. Time referred to it as one of those books “sewer-written by
dirty-fingered authors for dirty-minded readers.” Life took a different view,
predicting the book “will be defended by critics as an explosive corrosive
Whitmanesque masterpiece (which it is) and attacked as an unbridled
obscenity (which it is).” Then-Massachusetts Attorney General, Edward J.
McCormack, Jr., was less nuanced: he found the book “repulsive,” “an
affront to human decency,” and “brazenly animalistic.” 22
So, to return to our librarian: does removing Tropic of Cancer violate
the First Amendment? Let’s apply the majority’s rules:
Question: Was the librarian’s “substantial motive” in removing
Tropic of Cancer her disagreement with the book’s ideas?
Answer: Yes, so removing it violates the First Amendment.
_____________________
21
Pico bears mention only because Campbell discussed it. See Campbell, 64 F.3d at
188–89. But Campbell itself noted that nothing in Pico is “binding precedent” with respect
to the First Amendment. Ibid. As Campbell stated, the “narrowest” and hence controlling
opinion in Pico is Justice White’s concurrence—a concurrence that disavowed the First
Amendment discussion in Justice Brennan’s separate opinion. See supra Part III(A)(2).
22
See Barney Rosset, Profiles in Censorship: Henry Miller and the Tropic of Cancer, in
Rosset: My Life in Publishing and How I Fought Censorship (2017).
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Question: Did the librarian remove Tropic of Cancer because she found
it “pervasively vulgar”?
Answer: Yes, so removing it does not violate the First Amendment.
Raise your hand if you see the problem.
Or consider a more modern example. In 2018, the American Library
Association stripped Laura Ingalls Wilder’s name from its Lifetime
Achievement Award because, according to some, her Little House books
“reflect dated cultural attitudes toward Indigenous people and people of
color.” 23 Suppose, in response to the ALA’s action, a Travis County librarian
removes the Little House books. The librarian is sued. Let’s apply the
majority’s rules. Was the librarian’s “substantial motivation” for removing
the books to deny access to Wilder’s supposedly dated ideas? Or was her
motive that the books were educationally unsuitable? The answer is “yes”
and “yes,” which of course is no answer at all.
Finally, the rules cannot be applied coherently. Look no further than
this case. The two judges in the majority cannot agree on how their rules
apply to over half of the books at issue. Judge Wiener is confident all 17
books must be restored to the shelves because the evidence shows the
“substantial” motive for removing them was to “deny access” to disfavored
ideas. See Op. 18–23; see also id. at 18 (claiming this is a “relatively
straightforward application” of the rules). Judge Southwick is less sure.
He believes the rules allow the Butt and Fart Books to be removed because
he doubts they “contain any ideas with which to disagree.” Op. 1 (Southwick,
J., concurring in part and concurring in the judgment in part). Alternatively,
he believes those books may be removed because a librarian might consider
_____________________
23
See American Library Ass’n Press Release, ALA, ALSC respond to
Wilder Medal name change (June 25, 2018), https://www.ala.org/news/press-
releases/2018/06/ala-alsc-respond-wilder-medal-name-change.
31
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them “pervasively vulgar” or “not educationally suitable.” Id. at 2 (citation
omitted). He also allows that a book may be removed on the ground that “it
encourages children to engage in sexual activity with adults or includes
sexually explicit content”—a rationale that, “[a]t this stage of the case,” may
include In the Night Kitchen (because it contains drawings of a naked toddler)
and It’s Perfectly Normal (because of the sexually explicit cartoons you can
examine on page 43). Ibid.
So, by my count, that means the two judges in the majority—while
ostensibly agreeing on the “rules”—disagree on whether those “rules”
permit removal of nine of the 17 books at issue. To paraphrase Cormac
McCarthy, “If the rules you followed led you to this, of what use were the
rules?” Cormac McCarthy, No Country For Old Men (2005).
Do I have to answer?
***
Because the district court applied an incorrect legal standard, it
abused its discretion in entering a preliminary injunction. See Kauffman, 981
F.3d at 354 (citation omitted). The court should have vacated the injunction
and remanded for further proceedings.
B. The Free Speech Clause Does Not Constrain Public Libraries’
Collection Decisions.
Because the case will continue on remand, the court should answer to
the legal question posed here—namely, how the Free Speech Clause applies
to a public library’s choice of the books and other materials in its collection. 24
_____________________
24
See, e.g., Veasey v. Abbott, 830 F.3d 216, 272(5th Cir. 2016) (en banc) (reversing and remanding for district court to consider racial discrimination claim “in light of the guidance we have provided in this opinion”); Berger v. Compaq Comput. Corp.,257 F.3d 475, 482
(5th Cir. 2001) (in addition to reversing class certification, addressing legal issue
on which district court erred “to guide the district court on remand”).
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The short answer is that those choices are government speech to which the
Free Speech Clause does not apply. Below, I explain why that is the case,
while responding to the majority’s criticisms.
1. Supreme Court precedents: Forbes, Finley, ALA, and
Summum
The library at issue is a public entity supervised by a local government
body. See Tex. Local Gov’t Code §§ 323.001(a) (providing for “a free
county library” created either by “the commissioners court” or “a majority
of the voters”); 323.006 (“The county library is under the general
supervision of the commissioners court.”). It is supported by county funds.
Id. § 323.002. It is administered by the county librarian “subject to the
general rules adopted by the commissioners court.” Id. § 323.005(c). Among
other duties, the librarian “shall determine which books and library
equipment will be purchased.” Ibid.
How, if at all, does the Free Speech Clause constrain this library’s
discretion to shape its collection, whether through acquiring new books or
removing books on the shelves? As discussed, Plaintiffs defend the position
(adopted by the district court and largely affirmed by the majority) that a
library’s viewpoint- or content-based removal of books is unconstitutional.
They also argue that, as a limited public forum, a library’s removal of a book
triggers heightened scrutiny. I have already explained why these arguments
fail. For their part, Defendants argue that libraries’ “weeding decisions”
need only have a rational basis. As I explain below, both sides are incorrect
about the Free Speech standard applicable here.
To answer this question, ALA is again a good starting place. The
plurality characterized a public library’s choice of books as “the
government . . . deciding what private speech to make available to the
public.” 539 U.S. at 204 (plurality). To flesh out that idea, the plurality drew
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on two areas where the government makes similar decisions regarding private
speech: a public television station’s “editorial judgments” over what private
speech to air (see Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666(1998)), and a federal agency’s decision to fund certain artistic works (see Nat’l Endowment for the Arts v. Finley,524 U.S. 569
(1998)). In the plurality’s view, these precedents charted the boundaries of a public library’s discretion: “The principles underlying Forbes and Finley . . . apply to a public library’s exercise of judgment in selecting the material it provides to its patrons.” ALA,539 U.S. at 205
(plurality). 25
Those cases afforded the government wide discretion over its
presentation of private speech. For instance, Forbes recognized that public
broadcasters “are not only permitted, but indeed required, to exercise
substantial editorial discretion in the selection and presentation of their
programming.” 523 U.S. at 673. That discretion generally excludes “claims of viewpoint discrimination” because “a broadcaster by its nature will facilitate the expression of some viewpoints instead of others.”Id.
at 673–74. Moreover, allowing judges to superintend such decisions “would risk implicating the courts in judgments that should be left to the exercise of journalistic discretion.”Id. at 674
; see also ALA,539 U.S. at 204
(plurality). 26
_____________________
25
In Defendants’ view, ALA teaches that “rational-basis review applies to a public
library’s weeding decisions.” I disagree. The statement Defendants quote for this point
(“[G]enerally the First Amendment subjects libraries’ content-based decisions about
which print materials to acquire for their collections to only rational [basis] review.”) was
itself merely quoting the district court decision in that case. See ALA, 539 U.S. at 202(plurality) (quoting201 F. Supp. 2d 401, 462
(E.D. Pa. 2002)). The ALA plurality,
however, did not adopt that standard for testing a library’s collection decisions.
26
Forbes recognized a “narrow exception” to this general principle—namely,
where a public broadcaster creates a “non-public forum” by hosting a candidate debate.
See id. at 675 (explaining that “candidate debates present the narrow exception to the rule”
that forum analysis does not apply to public broadcasting). That narrow exception has no
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Finley is also deferential to government discretion. As the ALA
plurality explained, Finley “upheld an art funding program that required the
National Endowment for the Arts (NEA) to use content-based criteria in
making funding decisions.” ALA, 539 U.S. at 205(plurality) (citing Finley,524 U.S. 569
). The criteria included “consideration [of] general standards of decency and respect for the diverse beliefs and values of the American public.” Finley,524 U.S. at 576
(quoting20 U.S.C. § 954
(d)(1)). The Free Speech Clause did not constrain the NEA’s grant-making discretion, Finley reasoned, because judgments based on subjective considerations—including “esthetics” and “artistic worth” 27—were “a consequence of the nature of arts funding.”Id. at 585, 586
; see also ALA,539 U.S. at 205
(plurality). In that realm, “absolute neutrality is simply inconceivable.” ALA,539 U.S. at 205
(quoting Finley,524 U.S. at 585
); see also Chiras, 432 F.3d at 613–14 (taking a
similar view of Forbes, Finley, and ALA in the context of a state board of
education’s discretion over curricula and textbooks).
Six years after ALA, the Supreme Court refined these principles in
Pleasant Grove City v. Summum, 555 U.S. 460(2009). Summum rejected a Free Speech challenge to a city’s accepting a privately-donated Ten Commandments monument for a public park.Id.
at 464–65. Citing the ALA
plurality, the Court held forum analysis did not apply: the city had not opened
its property to private speakers but had only allowed installation of “a limited
_____________________
application here, however. As discussed, this case does not involve a public library’s
decision to open its premises to private speech, much less to candidate debate.
27
As Finley explained, the NEA program incorporated a “wide variety” of funding
criteria, including: “the technical proficiency of the artist, the creativity of the work, the
anticipated public interest in or appreciation of the work, the work’s contemporary
relevance, its educational value, its suitability for or appeal to special audiences (such as
children or the disabled), its service to a rural or isolated community, or even simply that
the work could increase public knowledge of an art form.” Finley, 524 U.S. at 585.
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number of permanent monuments.” Id.at 478 (citing ALA,539 U.S. at 205
(plurality)). Accordingly, the city did not have to “maintain viewpoint
neutrality” in choosing monuments. Id. at 479.
Moreover, Summum held the city’s decision to select some
monuments but reject others “constitute[s] government speech.” Id. at 472.
It did not matter that most of the monuments were privately donated. Id. at
464. The relevant expression was the city’s decision, guided by its own
criteria, to allow only certain monuments on public property. Id. at 465. The
city could “express its views,” the Court explained, even “when it receives
assistance from private sources for the purpose of delivering a government-
controlled message.” Id. at 468 (citation omitted). This was an example of a
government “speak[ing] for itself.” Id at 467 (citation omitted). Indeed, the
Court cited a concurring opinion in Finley for the proposition that “[i]t is the
very business of government to favor and disfavor points of view.” Id at 468.
(quoting Finley, 524 U.S. at 598 (Scalia, J., concurring in judgment)).
In sum, Summum held that the Free Speech Clause did not constrain
the city’s choice of monuments in a public park. “The Free Speech Clause
restricts government regulation of private speech; it does not regulate
government speech.” Id.at 467 (citing, inter alia, Johanns v. Livestock Mktg. Ass’n,544 U.S. 550, 533
(2005)). But, the Court added, “[t]his does not mean that there are no restraints on government speech.” Id. at 468. The Court noted the Establishment Clause as one potential check, along with “law, regulation, or practice.” Ibid. More fundamentally, the government expression was “ultimately ‘accountable to the electorate and the political process.’” Ibid. (quoting Bd. of Regents of the Univ. of Wis. Sys. v. Southworth,529 U.S. 217, 235
(2000)). “If the citizenry objects, newly elected officials later could espouse some different or contrary position.”Id.
at 468–69
(citation omitted).
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2. Sister-Circuit precedents: Sutliffe, Illinois Dunesland,
and PETA.
Rounding out this discussion, I note sister-circuit cases that treat the
government’s presentation of third-party speech as the government’s own
expression. For instance, in Sutliffe v. Epping School District, 584 F.3d 314(1st Cir. 2009), a non-profit group sued a town for refusing to include the group’s hyperlink on the town’s website. Applying Summum, Finley, Forbes, and ALA, the First Circuit rejected the plaintiff’s Free Speech challenge: “[T]he Town engaged in government speech by establishing a town website and then selecting which hyperlinks to place on its website.”Id.
at 331 (citing Summum,129 S. Ct. at 1134
; ALA, 539 U.S. at 204–05 (plurality); Finley, 524 U.S. at 585–86; Forbes,523 U.S. at 674
). Specifically, the court read Summum to teach that when government “uses its discretion to select between the speech of third parties for presentation” through government channels, “this in itself may constitute an expressive act by the government that is independent of the message of the third-party speech.”Id.
at 330 (citing
Summum, 129 S. Ct. at 1133–36). 28
Similarly, in Illinois Dunesland Preservation Society v. Illinois
Department of Natural Resources, 584 F.3d 719, 721(7th Cir. 2009), a non- profit group sued a state agency for refusing to include the group’s “scary two-page pamphlet” in state park display racks. The pamphlet warned about “asbestos contamination while at the beaches of Illinois Beach State Park.”Ibid.
Applying Summum, the Seventh Circuit rejected plaintiffs’ Free Speech
_____________________
28
Like Summum, the court acknowledged that “there may be limits to the
government speech doctrine,” such as “vot[ing] [officials] out of office, or limit[ing] the
conduct of those officials by law, regulation, or practice.” Id.at 331 & n.9 (citations and internal quotation marks omitted). The court added that “[t]he Establishment Clause is another restraint on government speech, and the Equal Protection Clause may be as well.”Ibid.
(citation omitted).
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challenge by characterizing the agency’s selection of materials in display
racks as government expression “designed to attract people to the park.” Id.at 724–25 (citing Summum,129 S. Ct. at 1131
). As the court explained:
The [agency’s] choice of materials conveys a message that is
contradicted by the plaintiff’s pamphlet. The message of the
publications in the display racks is: come to the park and have
a great time on the sandy beaches. The message of the
plaintiff’s pamphlet is: you think you’re in a nice park but really
you’re in Chernobyl[.]
Id. at 725. The court also pointed out the absurdity of imposing viewpoint
neutrality here: “Must every public display rack exhibit on demand
pamphlets advocating nudism, warning that the world will end in 2012, . . . or
proclaiming the unconstitutionality of the income tax, together with
pamphlets expressing the opposing view on all these subjects?” Ibid.
The final instructive case is PETA v. Gittens, 414 F.3d 23(D.C. Cir. 2005). As part of a public art program called “Party Animals,” the District of Columbia solicited designs for “sculptures of 100 donkeys and 100 elephants.”Id. at 25
. Winners chosen by the District 29 would have their designs displayed at prominent locales.Id. at 26
. PETA submitted various elephant designs, including “one of a happy circus elephant, the other of a sad, shackled circus elephant with a trainer poking a sharp stick at him.”Id. at 26
. After the District “accepted the happy elephant, but rejected the sad one,” PETA sued under the Free Speech Clause.Ibid.
The district court
_____________________
29
The District’s criteria sought “artwork that is dynamic and invites discovery,”
“original and creative,” “durable,” and “safe.” Id.at 25–26. Not allowed, however, were “direct advertising,” “social disrespect,” “slogans,” or “inappropriate images.”Ibid.
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granted a preliminary injunction requiring the District to display one of
PETA’s sad elephants. Id. at 27. 30 The D.C. Circuit reversed.
The court first concluded that the District itself was speaking by
choosing some designs over others. Id.at 28 (citing Forbes,523 U.S. at 674
). The court carefully distinguished the District’s speech from the artists’ speech, using the analogy of public library books: “As to the message any elephant or donkey conveyed, this was no more the government’s speech than are the thoughts contained in the books of a city’s library.”Ibid.
Nonetheless, government speech was still present:
With respect to the public library, the government speaks through
its selection of which books to put on the shelves and which books to
exclude. In the case before us, the Commission spoke when it
determined which elephant and donkey models to include in
the exhibition and which not to include.
Ibid (emphasis added). 31
Next, the court held that “public forum principles ‘are out of place in
the context of this case.’” Ibid.(quoting ALA,539 U.S. at 205
(plurality)).
By choosing some designs and rejecting others, the District was not
regulating private speech but was speaking for itself. The government, the
court explained, “may run museums, libraries, television and radio stations,
primary and secondary schools, and universities,” and “[i]n all such
_____________________
30
This version “depict[ed] a shackled elephant crying” with a “sign tacked to the
elephant’s side [that] read: ‘The Circus is coming. See SHACKLES–BULL HOOKS–
LONELINESS. All under the ‘Big Top.’” Id. at 26.
31
While PETA pre-dated Summum, the D.C. Circuit’s analysis anticipated the
Supreme Court’s. See id. at 29 (explaining that “First Amendment constraints do not apply
when [government] authorities engage in government speech by installing sculptures in the
park. If the authorities place a statue of Ulysses S. Grant in the park, the First Amendment
does not require them also to install a statue of Robert E. Lee”).
39
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activities, the government engages in the type of viewpoint discrimination
that would be unconstitutional if it were acting as a regulator of private
speech.” Id. at 29 (citing Schauer, supra, at 104–05). Relying on Forbes,
Finley, and ALA, the court underscored the government’s wide discretion in
such endeavors: “As a television broadcaster, the government must ‘exercise
journalistic discretion’; as an arts patron, the government must ‘make
esthetic judgments’; and as a librarian, the government must ‘have broad
discretion to decide what material to provide to [its] patrons.’” Ibid. (cleaned
up) (quoting Forbes, 523 U.S. at 674; Finley,524 U.S. at 586
; ALA,539 U.S. at 204
(plurality)). Accordingly, the Free Speech Clause did not restrict the District’s “decisions about PETA’s elephants” because the Clause “does not apply to the government as communicator.”Id.
at 30–31.
3. A public library’s collection decisions are government
speech.
These precedents point to one conclusion: a public library’s selection
of some books, and its rejection of others, constitutes government speech.
Those choices are therefore not constrained by the Free Speech Clause. See,
e.g., Summum, 555 U.S. at 467 (“The Free Speech Clause . . . does not
regulate government speech.”) (citation omitted).
I emphasize, as have other courts, the distinction between
government and private speech at work here. See, e.g., Summum, 555 U.S. at
470–72; PETA, 414 F.3d at 28. The government expression in this case is not found in the words of the library books themselves. Of course not. “Those who check out a Tolstoy or Dickens novel would not suppose that they will be reading a government message.” PETA,414 F.3d at 28
. Rather, the
government speaks by choosing certain books over others for the library’s
collection. That selectivity is why we have libraries in the first place. “[T]heir
goal has never been to provide universal coverage,” but instead “to collect
only those materials deemed to have requisite and appropriate quality.”
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ALA, 539 U.S. at 204(plurality) (citation and internal quotation marks omitted). And the message sent by the library’s choice is plain: this book is “suitable and worthwhile material,” while that book is not.Id. at 208
(plurality). That message is the library’s and is not subject to judicial scrutiny
under the Free Speech Clause. 32
Plaintiffs’ rejoinder is that affording public libraries broad discretion
over their collections will lead to something they call “book banning.” 33 The
_____________________
32
The majority’s response to this entire line of argument is anemic. First, the
majority says Campbell never “suggest[ed]” the officials’ decision to remove Voodoo &
Hoodoo was government speech. Op. 16. Likely that’s because no one raised the point. In
any event, Campbell didn’t decide the issue and so it is open in this circuit (or at least it
was). The majority’s next response is entirely circular. It claims that government discretion
in “deciding what private speech to make available to the public,” while “extensive,” is
nonetheless subject to First Amendment constraints. Id. at 17. What might those
constraints be? You guessed it: the government can’t “inten[d] to deprive the public of
access to ideas with which it disagrees.” Ibid. In other words, government discretion is
limited by the “right” the majority invented for this case. Finally, the majority tries to
distinguish Summum based on the notion that, unlike the government’s selection of public
monuments, a library’s collection decisions are “numerous” and “often occur behind
closed doors.” Op. 17–18 n.10. Those are distinctions without a difference. To the
contrary, Summum is directly on point: just as the government expressed itself there by
selecting some monuments over others, so library officials express themselves here by
selecting some books over others. See PETA, 414 F.3d at 28 (explaining “[w]ith respect to
the public library, the government speaks through its selection of which books to put on the
shelves and which books to exclude”).
33
Plaintiffs also claim Defendants have “waived” the argument that the library’s
collection decision is government speech by not arguing the point here. I disagree and so
does the majority. See Op. 16 n.9. Whether the Free Speech Clause constrains a library’s
collection decisions is plainly before us; whether those decisions constitute government
expression is bound up with that question, regardless of how the parties phrase the issue.
See, e.g., Stramaski v. Lawley, 44 F.4th 318, 326(5th Cir. 2022) (“[W]e may use our ‘independent power to identify and apply the proper construction of governing law’ to any ‘issue or claim [that] is properly before the court, . . . not limited to the particular legal theories advanced by the parties.’”) (quoting Kamen v. Kemper Fin. Servs. Inc.,500 U.S. 90, 99
(1991)). Regardless, the court could (and should) exercise its discretion to address government speech, even if it were somehow waived. See Singleton v. Wulff,428 U.S. 106, 121
(“[W]hat questions may be taken up and resolved for the first time on appeal is one left
41
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theme is woven throughout Plaintiffs’ brief, which ritually dubs the 17 books
at issue the “Banned Books.” See Red Br. at 4, 13, 15, 17, 18, 20, 24, 28, 29,
31, 34, 42, 47, 49, 55, 56, 57. The brief’s opening sentence asks: “Can
government officials freely purge public libraries of any books containing
ideas those officials want to prevent library patrons from accessing?” Id. at 1.
It warns elsewhere that, without strict judicial oversight, “government
officials could remove books for any reason no matter how partisan” and
“the robust marketplace of ideas embodied in public libraries would
disappear.” Id. at 18. This is hyperbole, not argument.
First, Plaintiffs ignore public libraries’ wide latitude to choose the
books on their shelves. Our own precedent, quoting ALA, recognizes that
“public library staffs necessarily consider content in making collection
decisions and enjoy broad discretion in making them.” Chiras, 432 F.3d at
614(quoting ALA,539 U.S. at 205
(plurality)). Plaintiffs nonetheless insist
that courts have the power to oversee those decisions in order to prevent
“book banning.” This raises an obvious question: what is the difference
between a library’s “banning” a book (something Plaintiffs claim is
prohibited by the Free Speech Clause) and a library’s discretionary decision
not to include the book in its collection? Plaintiffs do not say.
To make this pivotal question more concrete, consider one of the
supposedly “banned” books at issue: It’s Perfectly Normal: Changing Bodies,
Growing Up, Sex and Sexual Health, by Robie H. Harris and Michael
Emberley. Plaintiffs’ brief describes It’s Perfectly Normal as “an illustrated
children’s 34 health book that helps readers understand puberty and discusses
_____________________
primarily to the discretion of the courts of appeals[.]”). Our court could not properly
address how the Free Speech Clause applies to the library’s decision without addressing
the intertwined issue of whether that decision was government speech.
34
The book’s cover states: “FOR AGE 10 AND UP.”
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ways to stay safe online.” Red Br. at 7. Yet the book has stirred controversy 35
and evidence suggests it was removed from the library because of its sexually
explicit cartoons. Ibid. Here are some that have drawn the most attention:
_____________________
35
See, e.g., Aymann Ismail, Closed Book, Slate.com (Sept. 11, 2023) (discussing
controversy surrounding It’s Perfectly Normal), available at https://slate.com/human-
interest/2023/09/banned-books-list-its-perfectly-normal-facebook.html.
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It’s Perfectly Normal, at 9.
So, back to our question: did the library “ban” It’s Perfectly Normal,
as Plaintiffs contend? Or did the library instead exercise its “broad
discretion” to decide the book was not “suitable and worthwhile” for 10-
year-olds? ALA, 539 U.S. at 205, 208(plurality). Again, Plaintiffs offer no way of distinguishing one from the other. This suggests their cryptic warning about “book banning” is nothing more than a rearguard attack on public libraries’ discretion over their collections. See, e.g.,id. at 208
(plurality) (“A
library’s need to exercise judgment in making collection decisions depends
on its traditional role in identifying suitable and worthwhile material[.]”).
Second, even assuming courts can police libraries’ collection
decisions, what standard would they apply? The only one proposed by
Plaintiffs (and the district court) is to forbid “content or viewpoint
discrimination.” As shown, that is a non-starter. It would leave a librarian
powerless to remove from the shelves all manner of bigoted screeds. It would
perversely require librarians to “balance” legitimate scientific volumes with
reams of quackery. It would literally bar a library from stopping a subscription
to Penthouse magazine. Cf. id. at 208(plurality) (“Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion.”). In short, it is a standard in open war with the very concept of a library, whose mission is to assess materials precisely in terms of content and viewpoint and thereby “separate out the gold from the garbage.”Id. at 204
(plurality) (quoting Katz, supra, at 6). 36
Defendants’ counterproposal is that a library’s collection decisions
must be “rational.” That is more modest than Plaintiffs’ proposal, but no
_____________________
36
I have already explained why the majority’s “rules” will prove impossible to
apply coherently, supra Part III(A)(4), and need not repeat that here.
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more helpful. After all, what constitutes an “irrational” collection decision?
Featuring the romantic works of E.L. James? Classifying The DaVinci Code
as “Literature”? The mind reels at judges concocting “standards” for
adjudicating such insoluble subjectivities. It would be no different than judges
opining on whether the NEA should fund the latest “re-imagining” of
Hamlet. 37 Or whether a public television station should air old episodes of The
Joy of Painting instead of the new season of Call The Midwife. Those are
matters of esthetic, social, and moral judgment and no judge-made test can
possibly say whether their resolution in any given case was “rational.” Cf.
Forbes, 523 U.S. at 674 (“Were the judiciary to require, and so to define and
approve, pre-established criteria for access [to public broadcasting], it would
risk implicating the courts in judgments that should be left to the exercise of
journalistic discretion.”). The same goes for a public library’s decision about
which books to feature and which books to exclude.
Third, bear in mind the limits of my view. I say only that the Free
Speech Clause does not constrain a public library’s collection decisions. That
says nothing about other parts of the Constitution. Cf. Summum, 555 U.S. at
468–49 (suggesting other possible “restraints on government speech”
besides Free Speech). I would hold only that that the Free Speech Clause
provides no standard against which to judge a public library’s inescapably
expressive decision about which books it deems “suitable and worthwhile”
and which it does not. ALA, 539 U.S. at 208 (plurality).
_____________________
37
See, e.g., Alamo Drafthouse Cinema, You’ve Never Experienced the Bard
Like This Before! (Oct. 12, 2012) (discussing Rudolf Volz’s Hamlet In Rock, in which
“Hamlet is a whiny goth, Queen Gertrude wears a bright red penis-shaped crown, and the
gravedigger is an incomprehensible three-eared space rabbit”), available at
https://drafthouse.com/news/youve-never-experienced-the-bard-like-this-before.
45
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Nor should we forget the most effective constraint on public officials’
speech: the good sense of the citizens who elected them. “[The Llano County
commissioners court] is ultimately ‘accountable to the electorate and the
political process for its [choice of library books].’” Summum, 555 U.S. at 468(quoting Southworth,529 U.S. at 235
) (brackets added). Energized voters can bend public officials to their will, as this case amply shows. Plaintiffs’ lamentations to the contrary, that does not amount to “book banning.” It means that a local government heeded its citizens. True, the upshot is that Llano County’s books may differ from the books in Travis or Harris County. But variety is a feature of our system, not a bug. Cf. New State Ice Co. v. Liebmann,285 U.S. 262, 311
(1932) (Brandeis, J., dissenting) (“It is one of
the happy incidents of the federal system that a single courageous state may,
if its citizens choose, serve as a laboratory[,] and try novel social and
economic experiments without risk to the rest of the country.”).
IV. Conclusion
Stephen King saw this coming. One of his scary stories once warned:
“AVOID THE LIBRARY POLICE!” 38 Now, thanks to the majority, we
are all the Library Police.
I dissent.
_____________________
38
Stephen King, The Library Policeman, in Four After Midnight (1990).
46
Reference
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