NEW ORLEANS — A Texas county that wants to keep 17 books off the shelves — some dealing humorously with flatulence and others with issues including sex, gender identity and racism — argued its case Tuesday before an 18-judge federal appeals court amid questions about whether patrons or county officials have the same rights. at risk.
Library patrons filed a lawsuit in 2022 against numerous officials with the Llano County library system and county government after the book was removed. A federal district judge in Texas issued a preliminary order requiring the books to be returned by 2023. But the outlook grew bleaker when three judges of the 5th US Circuit Court of Appeals split three ways on the issue in June – one saying that all 17 books must remain in shelves, others said only eight should remain, and others said the court should hand it over to the district.
In the end, eight books should be kept on the shelf. But the full court chose to throw out that decision and retry the case. Tuesday’s arguments were heard by 17 full-time judges from the 5th Circuit, plus Jacques Wiener, a senior Circuit 5 judge with a reduced workload who was part of the original panel.
It is unclear when the full court will rule.
Judges closely asked lawyers on both sides as lawyers supporting the district said the government officials’ decisions in curating the selection of library books the amount of government speech is protected.
“If private speech can be passed as a government by simply giving it the government’s seal of approval, the government can silence the most powerful and unpopular ideas,” Judge Leslie Southwick said. “It seems that there is a risk that is happening here – if we call this particular activity, which is happening in this library, the speech of the government, but in fact it reduces the idea that is unpleasant and unacceptable for some group of people.”
Judge Stuart Kyle Duncan was more sympathetic to the county, noting the library’s litany of “weeding” guidelines used to decide which books to keep based on a variety of factors from the book’s age and condition to subjects that could be considered outdated or racist.
He questioned whether libraries could be allowed to remove racist books by former Ku Klux Klan leader David Duke or the children’s book “The Cat in the Hat,” which has been criticized for allegedly drawing on racist minstrel show culture.
“If a public librarian removes ‘The Cat in the Hat,’ is the public librarian violating the First Amendment?” Duncan asked.
“If librarians remove “The Cat in the Hat” because they’re motivated by reducing their point of view, then yes,” said Matthew Borden, a lawyer who defends library patrons.
Books in the case include “Caste: The Roots of Our Discontents” by Isabel Wilkerson; “They Call Themselves the KKK: The Birth of an American Terrorist Group,” by Susan Campbell Bartoletti; “In the Night Kitchen” by Maurice Sendak; “It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health” by Robie H. Harris; and “Being Jazz: My Life as a (Transgender) Teen” by Jazz Jennings.
Other titles include “Larry the Farting Leprechaun” by Jane Bexley and “My Butt is So Noisy!” by Dawn McMillan.
In the panel’s June ruling, Wiener, who was nominated to the 5th Circuit by former President George HW Bush, said the book was apparently removed at the behest of county officials who disagreed with the book’s message.
Another panel member was Southwick, a nominee of former President George W. Bush, who agreed with Wiener — in part. He said some of the removals could be a test case as the case moves forward, as some of the books are more about “teenage, bloated humor” than weightier subjects.
“I do not find that books are taken out of favor with the idea when it is not shown that the book contains ideas with which we disagree,” Southwick wrote.
Also on the panel was Duncan, former President Donald Trump’s running mate, who disagreed. “The commission in my office says ‘Judge,’ not ‘Librarian.’ ” wrote Duncan.
