The Fifth Circuit Court of Appeals has sent the Llano County library lawsuit back to U.S. District Court.
The 17 judges of the appeals court, based in New Orleans, in a 10-7 split decision ruled Friday, May 23, in favor of Llano County, who fought to keep books deemed “inappropriate” off shelves.
The decision overturned U.S. District Judge Robert Pitman’s ruling and ordering the case back to Pitman’s court in Austin.
But plaintiffs in the lawsuit say their fight isn’t necessarily over because of the appeals court ruling.
Katherine Chiarello, of Wittliff/Cutler LCCP in Austin, one of the lawyers for the plaintiffs, said her clients are discussing what options lie ahead, and said one of those options includes an appeal to the U.S. Supreme Court.
“That’s the only other court available,” she pointed out.
The seven plaintiffs filed suit in 2021 claiming that their rights were violated when county officials pulled 17 books from county library shelves at the behest of a group who said the books were unsuitable. Pitman issued an injunction in their favor last year, ordering the books back into the library.
However, defendants including the county, county commissioners, the county judge and the library director appealed that decision to the Fifth Circuit. A three-judge panel originally agreed with Pitman in a split decision, but one of those judges requested that the entire 17-judge court hear the case.
The majority ruled that library patrons have no right to require the county library to provide specific information, and said it’s “government speech” for county officials to decide what books should go on tax-supported library shelves.
In the majority opinion, written by Circuit Judge Stuart Kyle Duncan, judges said, “The only sensible course – and, happily, the one supported by reams of precedent – is to hold that the right to receive information does not apply here.”
“Take a deep breath, everyone,” the opinion admonished. “No one is banning (or burning) books. If a disappointed patron can’t find a book in the library, he can order it online, buy it from a bookstore, or borrow it from a friend. All Llano County has done here is what libraries have been doing for two centuries: decide which books they want in their collections. That is what it means to be a library – to make judgments about which books are worth reading and which are not, which ideas belong on the shelves and which do not.”
The majority opinion concedes that another U.S. court of appeals – the Eighth District, headquartered in St. Louis – ruled contrarily in a similar case.
“[T]he court ruled that the public would not ‘view the placement and removal of books in public school libraries as the government speaking.’ … The panel’s reasoning? Given the variety of books on the shelves, if the government were the one speaking, it would be ‘babbling prodigiously and incoherently.’ Unfortunately, we must disagree with our colleagues.”
Writing for the seven dissenting justices, Justice Stephen A. Higginson wrote, “Public libraries have long kept the people well informed by giving them access to works expressing a broad range of information and ideas. But this case concerns the politically motivated removal of books from the Llano County public library system by government officials in order to deny public access to disfavored ideas. In an effort to ratify this official abridgment of free speech, the majority overturns decades of settled First Amendment law, disparaging its free speech protections as a ‘nightmare’ to apply.”
Chiarello did not give a timeline for when a decision would be made on how to proceed, or indeed if the plaintiffs wished to proceed beyond this point.
“We appreciate all the support from the individuals and organizations and hope that continues,” she said.
Jonathan Mitchell, also of Austin, who argued the case for the defendants, did not return phone calls before deadline.
