Viewpoint-Based Removal of Books from Public Library Violated First Amendments, Holds District Court

From Little v. Llano County, decided yesterday by Judge Robert Pitman (W.D. Tex.):

In early July 2021, prior to their appointment to the New Library Board, Defendants Rochelle Wells, Rhonda Schneider, Gay Baskin, and Bonnie Wallace were part of a community group pushing for the removal of children's books that they deemed "inappropriate." For example, these Defendants objected to two series of children's picture books, the "Butt and Fart Books," which depict bodily functions in a humorous manner in cartoon format, because they believed these books were obscene and promoted "grooming" behavior. Defendant Milum, the library system's director, shared the complaints with the Commissioners Court {the municipal entity that controls the Llano County Library System}. Although several commissioners and librarians stated that they saw no problem with the books, Defendants Moss and Cunningham contacted Milum to instruct her to remove the books from the shelves.

By August 5, 2021, Milum informed Cunningham she would be deleting both sets of books from the catalog system. In the following months, other books, such as In the Night Kitchen by Maurice Sendak and It's Perfectly Normal, by Robbie H. Harris, were removed because of similar complaints: that they encouraged "child grooming" and depicted cartoon nudity. There was no recourse for Plaintiffs, or anyone else, to appeal these removals to the library system.

In Fall 2021, Wallace, Schneider, and Wells, as part of their community group, contacted Cunningham to complain about certain books that were in the children's sections or otherwise highly visible, labeling them "pornographic filth."  On November 10, 2021, Wallace provided Cunningham with lists, including a list of "dozens" that could be found in the library. The books labeled "pornographic" included books promoting acceptance of LGBTQ views. Other books in Wallace's list of pornographic books [were] about "critical race theory" and related racial themes. In other communications, Defendants refer to them as "CRT and LGBTQ" books.  In the email, Wallace advocated for the books to be relocated to the adult section because "[i]t is the only way that [she] could think of to prohibit future censorship of books [she does] agree with."

That same day, Cunningham and Moss ordered Milum, "[a]s action items to be done immediately," to pull books that contained "sexual activity or questionable nudity" from the shelves …. On November 12, 2021, Defendants removed several books on the Bonnie Wallace Spreadsheet from the Llano Library Branch shelves, including, for example, Caste: The Origins of Our Discontents, They Called Themselves the K.K.K.: The Birth of an American Terrorist Group, Being Jazz: My Life as a (Transgender) Teen, and Spinning….

The physical books at issue in this case, although "available" for checkout are hidden from view and absent from the catalog. Their existence is not discernible to the public, nor is their availability. An injury [to the plaintiffs, who are asserting their rights as would-be readers -EV] exists because the library's "in-house checkout system" still places "a significant burden on Library Patrons' ability to gain access to those books." …

The Supreme Court has recognized that public libraries should be afforded "broad discretion" in their collection selection process, in which library staff must necessarily consider books' content. See U.S. v. Am. Library Assn., Inc., 539 U.S. 194, 205 (2003) (plurality). But this discretion is not absolute, and it applies only to materials' selection. In fact, the Fifth Circuit, adopting the Supreme Court's plurality in Pico, has recognized a "First Amendment right to receive information" which prevents libraries from "remov[ing] books from school library shelves 'simply because they dislike the ideas contained in these books.'" Campbell v. St. Tammany Par. Sch. Bd. (5th Cir. 1995). "The key inquiry in a book removal case" is whether the government's "substantial motivation" was to deny library users access to ideas with which [the government] disagreed."

Here, Plaintiffs have sufficiently pled that Defendants' conduct was substantially motivated by a desire to remove books promoting ideas with which disagreed. They plainly allege that Defendants removed, ordered the removal, or pursued the removal of the books at issue "because they disagree with their political viewpoints and dislike their subject matter."

Defendants do not argue otherwise. Instead, they contend that Plaintiffs have not stated a claim because the removal decisions were "government speech to which the First Amendment does not apply."  But as Plaintiffs' note, the cases Defendants cite mostly involve the initial selection, not removal, of materials. See, e.g., Am. Library ("The principles underlying [the precedent] also apply to a public library's exercise of judgment in selecting the material it provides to its patrons."); PETA v. Gittens (D.C. Cir. 2005) (analogizing the discretion afforded to library's book collection decisions to the commission's art selection decisions). As the Fifth Circuit held in Campbell, removal decisions are subject to the First Amendment and are evaluated based on whether the governments' "substantial motivation in arriving at the removal decision" was discriminatory. Here, Plaintiff has clearly pled that Defendants had this motivation.

Defendants contend that Campbell and Pico do not apply to this context because those cases dealt with book removals from public school libraries, which may be subject to unique constitutional rules…. [T]he Court agrees that the precedent indicates public school libraries are a unique environment for constitutional analysis. Campbell, Pico, and Chiras suggest that school officials' discretion is particularly broad for book selection in public school libraries because of schools' unique inculcative function. However, the right to access to information first identified in Pico and subsequently adopted by the Fifth Circuit in Cambpell has "even greater force when applied to public libraries," since public libraries are "designed for freewheeling inquiry," and the type of discretion afforded to school boards is not implicated.

Defendants, like other government officials implicated in maintaining libraries, have broad discretion to select and acquire books for the library's collection. But the Fifth Circuit recognizes a First Amendment right to access to information in libraries, a right that applies to book removal decisions. Plaintiffs have clearly stated a claim that falls squarely within this right: that Defendants removed the books at issue to prevent access to viewpoints and content to which they objected….

And the district court went on to hold that plaintiffs were likely to prevail on the claim, and therefore granted them a preliminary injunction; the full list of books that had to be reinstated consisted of:

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. In the Night Kitchen by Maurice Sendak;
e. It's Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health by Robie Harris;
f. My Butt is So Noisy!, I Broke My Butt!, and I Need a New Butt! by Dawn McMillan;
g. 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;
h. Being Jazz: My Life as a (Transgender) Teen by Jazz Jennings;
i. Shine by Lauren Myracle;
j. Under the Moon: A Catwoman Tale by Lauren Myracle;
k. Gabi, a Girl in Pieces by Isabel Quintero; and
l. Freakboy by Kristin Elizabeth Clark.

(The court didn't separately discuss the objections to the Butt and Fart books, which seemed to be less focused on viewpoint and more on perceived vulgar content.) Note that it's unsettled whether viewpoint-based removals of books from school library shelves are constitutional—Board of Ed. v. Pico (1982) didn't resolve the issue—but the Fifth Circuit has indeed held that such removals are unconstitutional. And if even school libraries can't engage in such removals, the matter is even clearer as to public libraries, for the reason the District Court mentions.

Congratulations to Ellen Leonida, Matthew Borden, J. Noah Hagey, Sarah Salomon, Pratik Ghosh & Amy Senia (Braunhagey & Borden LLP) and Ryan Botkin, Katherine P. Chiarello & María Amelia Calaf  (Wittliff | Cutter PLLC), who represent plaintiffs.