Texas District Court Rejects Library’s Removal of Children’s Books Deemed Inappropriate

In today’s post, we consider a recent Texas case about the removal of library books. As the court explained, what the librarian giveth the librarian may not so easily taketh away.

In Little v. Llano County, No. 22-cv-424 (RP), 2023 WL 2731089 (W.D. Tex. Mar. 30, 2023), library patrons challenged a library system’s removal of certain children’s books on First Amendment and due process grounds. A community group advocating for the removal of books it deemed “inappropriate” submitted a list of such books to the library system director. The group complained about “Butt and Fart Books,” which “depict bodily functions in a humorous manner in cartoon format,” which were said to be “obscene and [to promote] ‘grooming’ behavior.” Id. at *2. Other books on the group’s list were labeled “’pornographic.’” These included “books promoting the acceptance of LGBTQ views,” such as “All Out: The No-Longer Secret Stories of Queer Teens Throughout the Ages by Saundra Mitchell; Beyond Magenta: Transgender Teen Speaks Out, by Susan Kuklin; and Some Assembly Required: the Not-So-Secret Life of a Transgender Teen, by Arin Andrews. Also on the list as “pornographic” were “books about ‘critical race theory’ and related racial themes,” including Caste, The Origins of Our Discontents, by Isabel Wilkerson; How To Be An Antiracist, by Ibram X. Kendi; and Separate Is Never Equal by Duncan Tonatiuh. A Maurice Sendak book, In the Night Kitchen, was also on the community group’s list.

The director shared the group’s complaints with the head of the Commissioner’s Court, the municipal entity that controls the library system, who directed the director to pull books and e-books that “contained ‘sexual activity or questionable nudity.’” Id. at *2. The director in turn instructed removal of books appearing on an edited version of the community group’s list of inappropriate books. The Commissioner’s Court then closed the library system for three days “to review the library catalog,” as part of which the staff checked the shelves “for ‘inappropriate’ books.” Id. at *3. The Commissioner’s Court “did not define ‘appropriateness’” but “the staff mainly pulled books that individuals from the community group had identified as inappropriate.” Id. During this period, the library system had an established method for weeding out and making room for new books, known as the “CREW” method, for “Continuous Review, Evaluation and Weeding.” Id. at *1. To identify candidates for weeding the CREW method suggests using the following factors, known by the acronym MUSTIE: misleading, ugly, superseded, trivial, irrelevant, and elsewhere. See id.

The court focused on the First Amendment claim. 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.” Id. at *7. While libraries have “’broad discretion’” in selecting books despite that the selection process necessarily requires consideration of books’ content, this discretion, according to the court, “applies only to materials’ selection”—not their removal. Id. That is because the Supreme Court “has recognized a First Amendment right to receive information,” with the result that libraries may not “remov[e] books from school library shelves ’simply because they dislike the ideas contained in these books.’” Id. (quoting Cambpell v. St. Tammany Par. Sch. Bd., 64 F.3d 184, 189 (5^th Cir. 1995)).

The court readily concluded that the complaint alleged, and the evidentiary record supported, that the defendants removed the books at issue “’because they disagree with their political viewpoints and dislike their subject matter,’” Llano County, 2023 WL 2731089, at *7, and “were likely motivated by a desire to limit access to the viewpoints to which” the community group members objected. Id. at *10. The court, accordingly, denied the defendants’ motion to dismiss and granted the plaintiffs’ preliminary injunction motion, ordering defendants to return the removed books to the shelves and prohibiting further removals during the case. On the due process claim, the court held there is a “protected liberty interest in access to information in a public library,” and did “not foreclose” that plaintiffs could be entitled to some “post-removal” process. Id. at *9.

The court relied on the Fifth Circuit’s decision in Cambpell v. St. Tammany Par. Sch. Bd., 64 F.3d 184 (5^th Cir. 1995), a school library case, but did the court apply Campbell correctly? The Campbell court’s First Amendment analysis was rooted in the “unique role of the school library as a place where students could engage in voluntary inquiry,” where “students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.” 64 F.3d at 188. Public libraries, however, have a somewhat different mission according to the Supreme Court—that of “facilitating learning and cultural enrichment.” United States v. American Library Ass’n, 539 U.S. 194, 203 (2003). Thus, although public libraries

seek to provide a wide array of information, their goal has never been to provide universal coverage. Instead, public libraries seek to provide materials that would be of the greatest direct benefit or interest to the community. To this end, libraries collect only those materials deemed to have requisite and appropriate quality.

Id. at 204 (citations and internal quotation marks omitted).

If a public library can judge books on their literary merit and capacity to enrich, whether a book is “inappropriate” is not clearly irrelevant to a decision to keep the book or cull it in favor of a more worthy title. The Court noted, for example, that libraries typically exclude pornography from their collections “because they deem it inappropriate for inclusion” based on libraries’ “traditional role in identifying suitable and worthwhile material.” Amer. Library Ass’n, 539 U.S. at 207. Would removing a pornographic book the library judged inappropriate for children be prohibited under the Llano County court’s analysis? At a minimum, considering a book “inappropriate” should not be assumed to mean the librarian disagrees with its viewpoint, given the library’s responsibility to make available only materials of suitable quality. Campbell, too, recognized that “an unconstitutional motivation would not be demonstrated if the school officials removed the books from the public school libraries based on a belief that the books were ‘pervasively vulgar’ or on grounds of ‘educational suitability.’” 64 F.3d at 188-89. These precedents leave room for libraries to make judgments on what materials to maintain based on their merit and appropriateness. The Llano County court gave short shrift to this aspect of the First Amendment analysis.