Background

In Fall 2021, members of a community group complained about certain books in the children’s sections or otherwise highly visible sections, labeling them “pornographic filth.” One group member provided lists of “dozens” that could be found in the library. The books labeled “pornographic,” included books promoting acceptance of LGBTQ views. Other books included books about “critical race theory” and related racial themes.  

Two Llano County Commissioners ordered the librarian to immediately pull books that contained “sexual activity or questionable nudity” from the shelves and from the Library’s online e-book database. 

In December 2021, the Commissioners Court also voted to dissolve the existing library board and create a new one, named the “Library Advisory Board.”  The members of the community group pushing for the removal of books were appointed to the Advisory Board.  In February 2022, the Board banned staff librarians from attending New Library Advisory Board Meetings and advised they could not use leave to attend on their own time. A month later, the meetings were closed to the public.

Lawsuit

In April of 2022, patrons of the Llano County Library System (Plaintiffs) sued the Llano County Commissioners Court members of the Llano County Library Board and the Llano County Library System Director (Defendants) for violations of their First and Fourteenth Amendment constitutional rights, alleging  Defendants infringed their First Amendment right to access and to receive ideas, and that the removal without any prior notice or an opportunity to appeal violated their 14th Amendment rights to due process. Defendants responded with a Motion to Dismiss the claims.

The court refused Defendants’ Motion to Dismiss, finding plausible 1^st and 14^th Amendment violations, despite claims the books were available, as they were hidden from view and removed from the catalog. Defendants’ conduct was substantially motivated by a desire to remove books promoting ideas with which they disagreed. Defendants removed, ordered the removal, or pursued the removal of the books at issue “because they disagreed with their political viewpoints and disliked their subject matter.”

The Supreme Court has recognized that public libraries should be afforded “broad discretion” in their collection selection process, in which library staff must necessarily consider books’ content. See U.S. v. Am. Library Assn., Inc., 539 U.S. 194, 205 (2003) (plurality). But this discretion is not absolute, and it applied only to materials’ selection. The Fifth Circuit has recognized a “First Amendment right to receive information” which prevents libraries from “removing books from school library shelves ‘simply because they dislike the ideas contained in the books.'

The court recognized a distinction between public school libraries and public libraries.  School officials’ discretion is particularly broad for book selection in public school libraries because of schools’ unique inculcative function. However, the right to access to information has “even greater force when applied to public libraries,” since public libraries are “designed for freewheeling inquiry,” and the type of discretion afforded to school boards is not implicated. 

The Court found that Plaintiffs clearly met their burden to show that these were content-based restrictions that were likely unconstitutional. A restriction is content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed.” Defendants acknowledged during the hearing that each of the books were slated for review (and ultimately removal) precisely because certain patrons and county officials complained the contents were objectionable. Under the applicable analysis, Defendants bore the burden of proving the removals were narrowly tailored to serve a compelling interest. The Court found it substantially likely that the removals did not further any substantial governmental interest—much less any compelling one.

With respect to the due process claims, the court found that Plaintiff sufficiently stated a due process claim. The court left open the possibility that Plaintiffs could be entitled to some form of post-removal appellate or review process, (due process) which Llano County did not provide in conjunction with the removal of the books.

The court granted an injunction against Llano County, ordering the books to be returned to the library within 24 hours and to update the catalogues to reflect the availability of the books for checkout and enjoining the library from removing any books from the catalogue during the pendency of the litigation.

What Does this Case Mean for School District Libraries?

While this is a preliminary ruling on a Motion to Dismiss, the ruling indicates the court was convinced the Plaintiffs were likely to succeed on the merits of the case.  Because of their “unique inculcative function,” public schools have some discretion to remove pervasively vulgar materials. Administrators should, however, be aware that neither statute, nor case law defines pervasive vulgarity, so administrators should use established, written , and facially unbiased procedures for the review of controversial materials.[2]  Should questions arise about this brief or regarding library materials challenges, please do not hesitate to contact Leon Alcala, PLLC for additional guidance.

Author: Hans P. Graff