5th Circuit orders 8 books returned to shelves of Texas library; 'flatulent humor' group not included
Eight library books must be returned to the shelves in Llano County, Texas, as a result of a decision Thursday by the 5th U.S. Circuit Court of Appeals at New Orleans. (Image from Shutterstock)
Eight library books must be returned to the shelves in Llano County, Texas, as a result of a decision Thursday by the 5th U.S. Circuit Court of Appeals at New Orleans.
The appeals court ruled in a First Amendment lawsuit by seven library patrons who objected to the removal of 17 books, including books on racism history, gender identity, sexuality and “butt and fart” themes.
As a result of the June 6 opinion, nine books can stay off the shelves—the seven “butt and fart” books and two books said to contain sexually explicit content and to promote “grooming” of children. The appeals court’s preliminary injunction remains in effect pending appeal.
The Associated Press, Bloomberg Law and Reuters have coverage via How Appealing.
The 5th Circuit modified an injunction by U.S. District Judge Robert Pitman of the Western District of Texas that had ordered all 17 books returned to the shelves. Pitman had found that the plaintiffs were likely motivated by a desire to limit access to the books’ viewpoints.
One judge in the majority, Senior Judge Jacques L. Wiener Jr., agreed with Pitman that all the books must returned.
“A book may not be removed for the sole—or a substantial—reason that the decision-maker does not wish patrons to be able to access the book’s viewpoint or message,” Wiener wrote.
A second judge in the majority, Judge Leslie H. Southwick, agreed with Wiener’s statement of the law but said the “butt and fart” books do not express a viewpoint and can remain off the shelves.
“Viewpoints and ideas are few in number in a book titled Gary the Goose and His Gas on the Loose—only juvenile, flatulent humor,” he wrote.
Southwick also found defensible the removal of a book on sexuality and a picture book with cartoon drawings of a naked child.
A dissenting judge, Judge Stuart Kyle Duncan, said decisions on library books are protected government speech.
“The Constitution does not deputize federal judges as the library police,” Duncan wrote.
Duncan said the two judges in the majority “have appointed themselves co-chairs of every public library board across the 5th Circuit.”
“And so we have a genuine first in the Federal Reporter: federal judges debating whether the First Amendment lets a library remove a book called (I kid you not) Larry the Farting Leprechaun,” Duncan wrote.
Wiener responded to Duncan’s “library police” accusation in his opinion. Duncan is citing a story by author Stephen King, who is “a well-known free speech activist,” Wiener said. King “would surely be horrified to see how his words are being twisted in service of censorship,” Wiener wrote.
Wiener was appointed by former President George H.W. Bush, Southwick was appointed by former President George W. Bush, and Duncan was appointed by former President Donald Trump.
