Appeals court allows Texas library to remove books that triggered sex, race concerns

A federal appeals court reversed itself Friday and said a Texas county public library was on firm legal footing when it took 17 books off its shelves amid concerns about racial or sexual content.

The full 5th U.S. Circuit Court of Appeals overturned a three-judge panel of its members and a previous district court ruling — as well as one of its own 30-year-old precedents — to find that Llano County did not violate library patrons’ free speech rights by removing the books.

Judge Stuart Kyle Duncan, a Trump appointee, said the books a public library chooses are considered the government’s speech and it has a right to make decisions about which books it offers.

“All Llano County has done here is what libraries have been doing for two centuries: decide which books they want in their collections,” he wrote in the key opinion for the court. “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.”

“If you doubt that, next time you visit the library ask the librarian to direct you to the Holocaust Denial Section,” he wrote.

He also said standards change over time. At one point, public libraries generally excluded novels, finding them “bad for morals,” he said.

The 17 books at issue include seven known as the “Butt and Fart Books,” with titles such as “Larry and the Farting Leprechaun.” Maurice Sendak’s “In the Night Kitchen,” with drawings of a naked toddler, was also axed. So was “It’s Perfectly Normal,” described as a sex education book for preteens. “Caste” and “They Called Themselves the KKK” — also booted — dealt with the history of racism in the U.S.

Library patrons sued, saying they had a “right to receive information” under the First Amendment’s Free Speech Clause.

A district judge agreed, as did the three-judge panel, at least as to some of the 17 books.

But Judge Duncan said that ruling would have left things a mess and might have even led to a library being unable to remove books that promoted racism.

More importantly, he said, libraries are government speech so they can’t be prodded by free speech claims.

“What the library is saying is: ’We think these books are worth reading,’” he wrote in the key opinion for the deeply divided court.

Judge Stephen A. Higginson, an Obama appointee to the court, led the dissent, saying Judge Duncan ignored the library’s motives for removing the books. He said it was done to placate county residents who complained about the books.

He called their removal “political censorship” and said Supreme Court precedent holds that books can’t be removed if the purpose is to restrict access to specific ideas or perspectives.

Judge Higginson said the majority was disregarding that Supreme Court precedent.

He said the Constitution doesn’t demand that Llano County’s library buy and shelve the books, but it does prohibit the county from removing them just because it doesn’t like the message.

The case had sparked overheated rhetoric that spilled over into Friday’s ruling.

“I would not have our court ’join the book burners,’” Judge Higginson said.

Judge Duncan called that an “unusually over-caffeinated” reaction.