With oral arguments set for June 7 before the Fifth Circuit Court of Appeals, librarians and publishers have filed amicus briefs in a closely watched Texas case over the banning of books in the public library.
The case, Little v. Llano County, was first filed on April 25, 2022, by a group of concerned library patrons who, among their claims, alleged that Llano County officials were “systematically removing award-winning books from library shelves because they disagree with the ideas within them,” in violation of the First Amendment. County officials countered that the removals were simply part of the library's right to “weed” its collection and remove titles.
In a 26-page opinion and order, issued on March 30, federal judge Robert Pitman said the evidence showed County officials were not merely "weeding" their collection and in fact had illegally "targeted and removed books, including well-regarded, prize-winning books, based on complaints that the books were inappropriate,” and issued a preliminary injunction requiring County officials to return 17 book to library shelves and refrain from removing any books while the litigation continued. County officials have asked the Firth Circuit to vacate Pitman's injunction.
In two Amicus briefs filed on June 2, however, a group of librarians and a group of major publishers are urging the Fifth Circuit to uphold the injunction, holding that Pitman correctly found that Llano County officials were illegally removing books based on viewpoint discrimination.
In their Amicus brief, a coalition of publishers, including the Association of American Publishers, Candlewick Press, Scholastic, and the "Big Five" houses (Hachette, HarperCollins, Macmillan, Penguin Random House, Simon & Schuster) point out that the books targeted by Llano county officials were mostly written from "outsider" perspectives and that their removal clearly "limits the range of ideas accessible to the community, enforcing an orthodoxy of perspective and experience" in clear violation of the First Amendment.
"The Constitution does not care about the political affiliation of the book-banners or the causes that motivate their censorship. When faced with the removal of books from library shelves, courts have consistently applied heightened scrutiny to bans motivated by government disapproval of the views and themes in the books," the publishers' brief argues. "It does not matter whether [a] ban serves progressive or conservative causes. The First Amendment is neither ‘woke’ nor ‘anti-woke.’ It protects the right of all Americans to access literary works across the political, ideological, and experiential spectrum, without government violation."
Among the 17 books Pitman ordered restored: 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; In the Night Kitchen by Maurice Sendak; and My Butt is So Noisy! by Dawn McMillan.
An Amicus brief filed by the Freedom to Read Foundation (the ALA's First Amendment defense arm) and joined by the American Library Association and the Texas Library Association, also urged the Appeals court to uphold Pitman's injunction.
"In their appeal, Llano County officials suggest that librarians should be able to target books for removal from the shelves of public libraries, based on content or perceived viewpoint, because complying with the First Amendment imposes an intolerable 'burden' on librarians. Amici could not disagree more," the librarians' brief notes. "Ensuring the First Amendment’s guarantee of access to a broad range of information and ideas is in the highest tradition of public libraries and librarians."
The librarians' brief recognizes that "some of the removed books might be controversial or even offensive to some library patrons." But that, they argue, is the point. "Patrons may choose for themselves to read a given book—or not. But government officials may not make that choice for them, based on the officials’ own view of 'what shall be orthodox in politics, nationalism, religion, or
other matters of public opinion.'”
The Llano County case, including all discovery, has been temporarily stayed while the Fifth Circuit considers whether Pitman's March 30 injunction should stand. A decision from the Fifth Circuit is expected to be expedited.