Little v. Llano Cnty.

103 F.4th 1140

Leila Green LITTLE; Jeanne Puryear; Kathy Kennedy; Rebecca Jones;Richard Day; Cynthia Waring; Diane Moster, Plaintiffs—Appellees, v. LLANO COUNTY; Ron Cunningham, in his official capacityas Llano County Judge; Jerry Don Moss, in his official capacityas Llano County Commissioner; Peter Jones, in his official capacityas 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.

No. 23-50224

United States Court of Appeals, Fifth Circuit

FILED June 6, 2024

Appeal from the United States District Court for the Western District of Texas, USDC No. 1:22-CV-424, Robert L. Pitman, U.S. District Judge

Katherine Patrice Chiarello, Ryan A. Botkin, Maria Amelia Calaf, Ian Crichton, Botkin Chiarello Calaf, P.L.L.C., Austin, TX, Marissa Benavides, BraunHagey & Borden, L.L.P., New York, NY, Matthew Borden, Kory James DeClark, Ellen Valentik Leonida, BraunHagey & Borden, L.L.P., San Francisco, CA, for Plaintiffs-Appellees Leila Green Little, Jeanne Puryear, Kathy Kennedy, Rebecca Jones, Richard Day, Cynthia Waring, Diane Moster.

Jonathan F. Mitchell, Austin, TX for Defendants-Appellants Llano County, Ron Cunningham, Jerry Don Moss, Peter Jones, Mike Sandoval, Linda Raschke, Amber Milum, Bonnie Wallace, Rochelle Wells, Rhoda Schneider, Gay Baskin.

Marc Aaron Fuller, Esq., Jackson Walker, L.L.P., Dallas, TX, for Amici Curiae Association of American Publishers, Incorporated, Candlewick Press, Incorporated, Hachette Book Group, Incorporated, HarperCollins Publishers, L.L.C., Macmillan Publishing Group, L.L.C., Penguin Random House, L.L.C., Simon & Schuster, Incorporated, Scholastic Incorporated.

Robert Corn-Revere, Esq., JT Morris, Foundation for Individual Rights & Expression (FIRE), Washington, DC, for Amicus Curiae Foundation for Individual Rights and Expression.

Thomas F. Allen, Jr., Frost Brown Todd, L.L.P., Dallas, TX, Ryan W. Goellner, Frost Brown Todd, L.L.C., Cincinnati, OH, Kevin T. Shook, Frost Brown Todd, L.L.P., Columbus, OH for Amici Curiae Freedom to Read Foundation, Texas Library Association, American Library Association.

Before Wiener, Southwick, and Duncan, Circuit Judges.

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 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.

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.

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 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...