A federal appeals court in New Orleans is reviewing its own order requiring a Texas county to keep eight books on public library shelves that address topics such as sexuality, gender identity and racism.
Llano County, Texas, officials pulled 17 books from their shelves after complaints about the subject matter. Seven library patrons alleged the books were illegally removed in a lawsuit filed against county officials. District Judge Robert Pitman ruled last year that the books should be returned. Llano County attorneys said the books were returned while they appealed Mr. Pitman’s decision.
While library patrons say the removal of the books constitutes illegal government control of viewpoints, county officials have argued that they have broad authority to decide which books belong on library shelves and that such decisions constitute constitutionally protected government speech.
On June 6, a panel of the U.S. Court of Appeals for the Fifth Circuit split three ways in the case, resulting in an order that eight of the 17 books must remain on the shelves, while nine others can be removed.
That decision was reversed Wednesday night after a majority of the 17-member court granted Llano County officials a new hearing before the full court. The order did not provide reasons and a hearing date has not yet been set.
In his 2023 decision, Pitman, appointed to the federal bench by former President Barack Obama, found that the library plaintiffs had shown that Llano officials were “motivated by their antipathy to the ideas contained in the banned books.” The books in question ranged from children’s books to award-winning nonfiction, including “They Called Themselves the KKK: The Birth of an American Terrorist Group,” by Susan Campbell Bartoletti, and “It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health,” by Robie Harris.
The Pitman decision was largely upheld by the Fifth Circuit panel that ruled on June 6. The lead opinion was by Judge Jacques Wiener, appointed to the court by former President George W. Bush. Mr. Wiener said the books were clearly removed at the request of county officials who disagreed with the messages they contained.
Judge Leslie Southwick, appointed by former President George W. Bush, largely agreed but said some of the redactions could withstand legal test as the case proceeds, noting that some of the books were more about “juvenile and flatulent humor” than more serious subject matter.
Judge Stuart Kyle Duncan, appointed by former President Donald Trump, strongly disagreed, saying his colleagues “have appointed themselves co-chairs of every public library board in the Fifth Circuit.”
This district covers the federal courts in Mississippi, Louisiana and Texas.
The decision to rehear the case is a victory for Llano County, whose attorneys argued that the June 6 opinion contained numerous errors, including the erroneous assertion that the books had not been returned to shelves pending an appeal.
