A Texas public library can't remove books simply because they discuss topics like "butts and farts," a federal judge wrote last week in a majority opinion of a lawsuit over controversial library books. Because of disagreement between a panel of federal judges, however, the books will remain removed, while other challenged books on race and sexuality will be returned to library shelves.*
The case is one of the more bizarre instances of library censorship in recent years, but it nonetheless led to a decisive option from the majority, who found that it is unconstitutional to remove library books out of a "desire to limit access to ideas with which they [disagree]."
The legal battle began after Llano County Judge Ron Cunningham received complaints in 2021 concerning "pornographic and overtly sexual books in the library's children's section." The complainants were particularly upset about children's books about "butts and farts."
One of the aggrieved citizens, Llano resident Rochelle Wells, "had been checking out those books continuously for months to prevent others from accessing them."
Following the complaint, Cunningham told the library's director, Amber Milum, to remove the books from library shelves. After more complaints were lodged, Cunningham told the library director to also remove several other books that "depict any type of sexual activity or questionable nudity."
Milum later testified that she would not have removed the books as part of typical curation activities—she only removed them because of directions from county officials.
Making matters worse, in January 2022, the county's library board was dissolved and replaced with new board members. Two of the complainers who successfully pressured Cunningham to order books removed were placed on the new board.
According to the opinion, 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."
Seven library patrons brought a suit in 2022, arguing that the removal of the book was unconstitutional viewpoint discrimination. Eventually, a lower court agreed, granting a preliminary injunction requiring defendants to return the removed books. However, the county appealed. Just this week, a panel of judges from the 5th Circuit Court of Appeals sided with the plaintiffs.
Referencing other cases surrounding attempted library censorship, the majority opinion constructed a series of "rules" about how books can be removed from library collections. "Librarians may consider books' contents in making curation decisions," Judge Jaques Weiner Jr. wrote in the majority opinion. "Their discretion, however, must be balanced against patrons' First Amendment rights…a book may not be removed for the sole—or a substantial—reason that the decision-maker does not wish patrons to be able to access the book's viewpoint or message."
The motivation for removing targeted books from Llamo public libraries doesn't meet this test. The opinion notes that censors wanted the books gone simply because they didn't like their content.
"Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree," the opinion concludes. "Because that is apparently what occurred in Llano County, Plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment claim."
*CORRECTION: A previous version of this story misstated the content of the federal court's ruling.
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