Opponents of library censorship won a victory in court in Texas, albeit a small one that might prove illusory. These are challenging times for those seriously concerned with the right of free speech guaranteed by the First Amendment to the U. S. Constitution. Courts these days seem interested only in protecting the Second Amendment. There will be a bumpy road ahead and no one knows where it leads.
This case comes from Llano County, a rural county in central Texas. As backdrop, county head librarian Tina Castelan submitted her resignation to Library Director Amber Milum last year after a branch head librarian was fired for failing to remove books as demanded. Ms. Castelan was quoted by KXAN as saying, “Censorship is happening.”
What happened was that a group of private citizens pushed for removal of books they described as “inappropriate.” There were a couple of books known as the Butt and Fart Books, that, the court said, “depicts bodily functions in a humorous manner in cartoon format.” I've never had the pleasure of reading one of these books but they sound like they are in eminently bad taste. I probably wouldn't have selected them for my library, but if bad taste was grounds for censorship, a lot of great books and any semblance of free speech would all be banned. However, that was not the reason the group wanted the books removed. They claimed the books were “obscene,” and that they promoted “grooming.” The latter is the ultimate smear of the day, it being such a reprehensible slur it can quickly destroy a person's reputation, an ideal way of silencing them. It makes one wonder why they have the idea of “grooming” children constantly on their mind. I wouldn't let my kids anywhere near such people. They protest too much.
The group seeking removal of the books sent their list of books of which they did not approve to the county commissioners. Library Director Milum also notified the commissioners of their objections. The result was the commissioners appointed the members of the objecting group to the new county library board and Milum was told by one of the commissioners to remove a list of books. While the books were not literally removed from the library, they were simply made invisible. They were taken off of shelves accessible to the public and removed from the catalogue of books, so no one would know they even existed.
Among those books made to disappear were 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, and In the Night Kitchen by Maurice Sendak. I'm guessing the Jazz book was too kind to the transgendered, the Bartoletti book, I don't know, maybe too unkind to the K. K. K.(?), and the Sendak book, who knows? Maybe being a children's author he must have been a “groomer.”
Not everyone in Llano County was pleased. A group of library patrons sued. They argued that their First Amendment rights were violated as their right to access and receive ideas was infringed when the books were removed based on their messages and content. No one denies that libraries have a right to remove books for reasons such as condition, being dated, no longer of interest to patrons. However, there is case law treating the removal of books based on someone not liking their subject matter or ideas expressed as not an acceptable reason under the First Amendment.
The first step the library patrons took was to seek a preliminary injunction against the county. This is not the final conclusion. A lawsuit can take years to wind its way through the courts and they wanted the books returned now. A preliminary injunction is a way to get something done immediately, though not necessarily the final outcome. To get such an injunction, they had to show the court that they were likely to succeed on the merits in the actual trial.
In determining whether the patrons were likely to win on the merits, the court looked at two factors which earlier court decisions have said constitute violations of First Amendment rights – removal based on viewpoint and based on content. “Although libraries are afforded great discretion for their selection and acquisition decisions,” the court wrote, “the First Amendment prohibits the removal of books from libraries based on either viewpoint or content discrimination.” In this case, the Judge cited pressure put on the head librarian to remove books on a list prepared by people who described them as “inappropriate,” even “pornographic filth” and “CRT [critical race theory] and LGBTQ books.” The county argued that this was just part of the library's normal process of “weeding,” but the head librarian, who pulled them from the shelves, testified that the books pulled were ones the commissioners identified as “inappropriate.” The books selected did not follow the library's normal “weeding” processes or criteria. It didn't take any great insight to recognize that they were being removed because the Commissioners did not like the viewpoints expressed.
On the other factor, content, the court also found that the books were removed because the commissioners did not like the topics discussed. Again, the county argued that this was part of the “weeding” process but the court noted statements from some of the objecting citizens and head librarian that the books were on the list and none were being considered for “weeding” until placed on the list. The court said the patrons had offered sufficient evidence that this “post-hoc justification is pretextual.”
The result was that the court ordered the books that were removed based on viewpoint or content immediately be returned to the shelves, the catalogue reflect that these books are again available for check out, and that no further books be removed from the Llano County Libraries' catalogue until this case is resolved at trial. While this decision will be welcomed by all who abhor censorship of ideas, it must be noted that the patrons still must prevail at trial, and even if they do, the verdict will be subject to appeal to the Fifth Circuit Appeals Court, and if successful there to the U.S. Supreme Court. Both courts are very conservative, and while there was a time when a conservative would have been expected to jealously guard First Amendment rights, “conservative” doesn't have the same meaning today it once had. Don't get your hopes too high. Additionally, this only applies to removal of books and does not prohibit officials from only placing new books in the library that conform to their personal point of view, to the exclusion of all else.
Addendum: Library patrons had to bite the bullet again when it was announced that the commissioners were going to take a vote on defunding the library, shutting down access to all books and services rather than letting anyone read books they didn't like. Residents filled the meeting room and listened on speakers from outside after the room filled. However, it was announced that the commissioners would not take up that proposal at the meeting after all. The Llano County library remains in business, at least for now, but that hardly guarantees the proponents of censorship will not be making more attempts in the future to implement their Index Librorum Prohibitorum on their citizenry.