Case: 23-50224 Document: 120-1 Page: 1 Date Filed: 06/02/2023
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`
`
`No. 23-50224
`In the United States Court of Appeals for the Fifth Circuit
`_____________
`
`Leila Green Little; Jeanne Puryear; Kathy Kennedy; Rebecca
`Jones; Richard Day; Cynthia Waring; Diane Moster,
`Plaintiffs-Appellees,
`
`
`
`
`
`
`
`
`
`v.
`Llano County; Ron Cunningham, in his official capacity as
`Llano County Judge; Jerry Don Moss, in his official capacity as
`Llano County Commissioner; Peter Jones, in his official
`capacity as Llano County Commissioner; Mike Sandoval, in his
`official capacity as Llano County Commissioner; Linda
`Raschke, in her official capacity as Llano County
`Commissioner; Amber Milum, in her official capacity as Llano
`County Library System Director; Bonnie Wallace, in her
`official capacity as Llano County Library Board Member;
`Rochelle Wells, in her official capacity as Llano County
`Library Board Member; Rhoda Schneider, in her official
`capacty as Llano County Library Board Member; Gay Baskin, in
`her official capacity as Llano County Library Board Member,
`Defendants-Appellants.
`
`
`
`
`
`
`_____________
`
`
`
`
`
`
`
`On Appeal from the United States District Court
`for the Western District of Texas
`Case No. 1:22-cv-424-RP
`_____________
`
`APPELLANTS’ REPLY BRIEF
`_____________
`
`
`Jonathan F. Mitchell
`Mitchell Law PLLC
`111 Congress Avenue, Suite 400
`Austin, Texas 78701
`(512) 686-3940 (phone)
`(512) 686-3941 (fax)
`jonathan@mitchell.law
`
`Counsel for Defendants-Appellants
`
`
`
`

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`Case: 23-50224 Document: 120-1 Page: 2 Date Filed: 06/02/2023
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`Table Of Contents
`Table of contents ...................................................................................................... i
`Table of authorities ................................................................................................. ii
`Reply to the plaintiffs’ statement of facts ................................................................. 1
`I. Undisputed facts ............................................................................................ 4
`II. The false and misleading statements in the plaintiffs’ brief ........................... 7
`A. The misleading statements in the plaintiffs’ brief ..................................... 7
`B. The false statements in the plaintiffs’ brief .............................................. 8
`Argument ............................................................................................................... 16
`I. The district court erred in granting a preliminary injunction ....................... 16
`A. The plaintiffs failed to make a clear showing that the in-house
`checkout system violates their First Amendment right to access
`and receive information ........................................................................... 16
`B. The plaintiffs failed to make a “clear showing” of “irreparable
`harm” when the each of 17 disputed books remains available for
`them to read and check out at Llano Library ........................................... 21
`C. The district court erred in holding that the First Amendment
`forbids “viewpoint discrimination” or “content discrimination” in
`public-library weeding decisions ............................................................ 22
`D. The plaintiffs failed to make a “clear showing” that Amber Milum
`engaged in viewpoint or content discrimination when weeding the
`17 disputed books .................................................................................... 27
`E. The preliminary injunction is overbroad ................................................. 29
`Conclusion ............................................................................................................. 30
`Certificate of service ............................................................................................... 31
`Certificate of compliance ........................................................................................ 32
`Certificate of electronic compliance ....................................................................... 33
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`Case: 23-50224 Document: 120-1 Page: 3 Date Filed: 06/02/2023
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`Table of Authorities
`
`Cases
`ACLU of Florida, Inc. v. Miami-Dade County School Board,
`557 F.3d 1177 (11th Cir. 2009) ............................................................................... 1
`Barrett v. Walker County School District, 872 F.3d 1209 (11th Cir. 2017) .................. 25
`Califano v. Yamasaki, 442 U.S. 682 (1979) ............................................................. 20
`Campbell v. St. Tammany Parish School Board,
`64 F.3d 184 (5th Cir. 1995) ............................................................................ 23, 26
`Christian Legal Society v. Martinez, 561 U.S. 661 (2010) ......................................... 24
`City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982) ................................. 19
`CK-W by and through TK v. Wentzville R-IV School District,
`619 F. Supp. 3d 906 (E.D. Mo. 2022) ................................................................ 22
`Counts v. Cedarville School District,
`295 F. Supp. 2d 996 (W.D. Ark. 2003) ................................................................ 18
`Denver Area Educational Telecommunications Consortium, Inc. v. FCC,
`518 U.S. 727 (1989) ............................................................................................. 17
`In re Gee, 941 F.3d 153 (5th Cir. 2019) ..................................................................... 16
`Perry Education Ass’n v. Perry Local Educators’ Ass’n,
`460 U.S. 37 (1983) .............................................................................................. 25
`Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) ................................... 24
`Roe v. Cypress-Fairbanks Independent School District,
`53 F.4th 334 (5th Cir. 2022) ................................................................................ 21
`Roho, Inc. v. Marquis, 902 F.2d 356 (5th Cir. 1990) .................................................. 21
`Seattle Mideast Awareness Campaign v. King County,
`781 F.3d 489 (9th Cir. 2015) ................................................................................ 25
`Sund v. City of Wichita Falls, 121 F. Supp. 2d 530 (N.D. Tex. 2000) ....................... 18
`TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) ............................................... 16
`United States v. American Library Ass’n Inc., 539 U.S. 194 (2003) ........................... 18
`
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`Case: 23-50224 Document: 120-1 Page: 4 Date Filed: 06/02/2023
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`United States v. Concentrated Phosphate Export Ass’n,
`393 U.S. 199 (1968) ............................................................................................ 20
`Valley Forge Christian College v. Americans United for Separation of
`Church and State, Inc., 454 U.S. 464 (1982) ........................................................ 16
`Youkhanna v. City of Sterling Heights, 934 F.3d 508 (6th Cir. 2019) ........................ 25
`
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`iii
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`Reply To The Plaintiffs’ Statement Of Facts
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`The plaintiffs’ recitation of the facts is misleading and (in many places) demon-
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`strably false. Throughout their brief, the plaintiffs deploy imprecise terminology
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`(such as the word “remove”) and tiresome hyperbole. Saying that the 17 disputed
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`books have been “banned” or “censored” is histrionic when each of those books
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`remains available through the library’s in-house system and (for most of the books)
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`through additional means such as CloudLibrary (the library’s online collection)1 or
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`InterLibrary Loan.2 Books that have been weeded from the shelves yet remain avail-
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`able to library patrons through other means have not been “banned” or “cen-
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`sored”—any more than the thousands of books that the Llano library system weeds
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`each year. See ACLU of Florida, Inc. v. Miami-Dade County School Board, 557 F.3d
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`1177, 1218 (11th Cir. 2009) (“Book banning takes place where a government or its
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`officials forbid or prohibit others from having a book. . . . [R]emoving a book from
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`[library] shelves is not book banning.”).
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`The plaintiffs also deliberately conflate the decisions to temporarily pull the
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`disputed books for review with the decisions to permanently “weed” those books
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`and erase them from the library catalog. The plaintiffs’ brief uses the verb “re-
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`move” interchangeably to encompass each of these actions. And it does so without
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`2.
`
`
`1. Four of the 17 books remain available to library patrons through CloudLibrary:
`Caste, It’s Perfectly Normal, Being Jazz, and Gabi. ROA.673-674.
`13 of the 17 books remain available through interlibrary loan: They Called
`Themselves the K.K.K., Spinning, In the Night Kitchen, each of the three “butt”
`books, each of the four “fart” books, Shine, Gabi, and Freakboy. ROA.673-674.
`In addition to this, a copy of Being Jazz remains in the Kingsland Library’s col-
`lection. ROA.3995.
`
`1
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`indicating whether “remove” is referring to the temporary “removal” of the hun-
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`dreds of books that were placed on a cart for Ms. Milum to review—the vast major-
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`ity of which were returned to the library shelves, and all of which remained availa-
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`ble for checkout while Ms. Milum conducted her review3—or the permanent “re-
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`moval” that occurred when Ms. Milum decided to weed the 17 books in this law-
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`suit.
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`Here is an example of the plaintiffs’ obfuscation: Their assertion that Judge
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`Cunningham “instructed Milum to remove from the shelves ‘[a]ny books with pho-
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`tos of naked or sexual conduct’” and that Milum “obeyed his directive” and “re-
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`moved” In the Night Kitchen “because it includes illustrations of a naked toddler.”
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`Appellees’ Br. at 6-7 (emphasis added). If the word “remove” refers to the decision
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`to temporarily pull the books to determine whether they should be weeded or moved
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`to the adult section, then the statements are truthful. Milum did pull books contain-
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`ing nudity to determine whether they should be weeded or relocated, and she
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`pulled them in response to Cunningham’s directive. ROA.682; ROA.2506 (¶ 35);
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`ROA.3953 (“I pulled them to review them, not to weed them.”). But if the word
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`“remove” refers to the decision to permanently remove, i.e., weed the books, then
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`the statements are false. Milum decided to weed It’s Perfectly Normal and In the
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`Night Kitchen because (in her judgment) they met the criteria for weeding, not be-
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`cause they contained nudity and not because Judge Cunningham (or anyone else)
`
`
`3. ROA.675; ROA.3900 (“[W]hile they were on the cart in Amber’s office, were
`they available to be checked out? A. Yes. We just had to ask for them.”).
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`2
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`told her to weed them.4 The plaintiffs elide this distinction throughout their brief to
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`create the impression that the reasons behind the temporary removal of the hun-
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`dreds of books that were placed on a cart for review are the same reasons behind the
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`permanent removal of the 17 books that got weeded.
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`Yet this distinction is crucially important because there is nothing unconstitu-
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`tional about taking a library book off a shelf to review whether it should be weeded
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`or relocated, especially when the book remains available for library patrons to check
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`out during the review process.5 Librarians are constantly pulling books off shelves
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`to decide whether they should be weeded,6 and the plaintiffs have not alleged Arti-
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`cle III injury from the decisions to temporarily pull books for review. So the motiva-
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`tions behind the requests that Ms. Milum examine the books that were temporarily
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`pulled are irrelevant. The plaintiffs are suing only over Ms. Milum’s decisions to
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`weed the 17 disputed books, which no longer appear in the library shelves or catalog.
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`And the only relevant motivations are those behind the decisions to weed, i.e., the
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`4. ROA.2506 (¶ 35) (Milum) (“The plaintiffs’ claim that I ‘removed In The Night
`Kitchen from the library system because it includes illustrations of a naked tod-
`dler’ is false. . . . My decision to pull the book for review (i.e., to temporarily re-
`move the book) was because of the naked-toddler pictures, as Judge Cunning-
`ham had instructed me to pull from the shelves and review all books with nudi-
`ty. But my decision to weed the book (i.e., to ‘remove the book from the library
`system’) had nothing whatsoever to do with the content of the book or the pic-
`tures of the naked toddler, and I would have weeded In The Night Kitchen even
`if there had been no nudity or drawings of a naked toddler.” (emphasis in orig-
`inal)).
`5. See note 3, supra.
`6. ROA.3953 (“We weed all the time.”).
`
`3
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`decisions to permanently remove the 17 disputed books from the library’s shelves
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`and delete them from the catalog.
`I. Undisputed Facts
`The plaintiffs do not dispute or deny any of the following facts:
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`• Amber Milum alone made the decision to “weed” each of the 17
`disputed books. See Appellants’ Br. at 7.
`
`Nothing in the plaintiffs’ brief contests or refutes this fact. Instead, the plain-
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`tiffs try to obscure this fact by playing word games with “remove,” claiming that
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`Milum was instructed by others to “remove” books when Milum was told only to
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`temporarily pull certain books to review whether they should be weeded or relocated.
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`See, e.g., Appellees’ Br. at 6 (“Defendants Cunningham and Moss directed Milum
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`to remove the Butt and Fart Books.” (emphasis added)).
`
`• None of the other defendants ordered, pressured, or even asked
`Ms. Milum to weed (i.e., permanently remove) any book from Lla-
`no Library or the Llano County Library System. See Appellants’ Br.
`at 7.
`
`The plaintiffs never claim that anyone ordered, pressured, or asked Milum to
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`weed the books. They claim only that Milum was instructed to “remove” certain
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`books, by which they mean that Milum was told to temporarily pull books to review
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`whether they should be weeded or relocated.
`
`• Ms. Milum’s decisions to weed the 17 books had nothing to do with
`the content or viewpoints expressed in the books. Ms. Milum did
`not even read the 17 books before weeding them. See Appellants’
`Br. at 7.
`
`The plaintiffs do not claim that Milum decided to weed the 17 disputed books
`
`because of their content or viewpoints, and they have no evidence that Milum en-
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`4
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`gaged in content or viewpoint discrimination when weeding the books. The plain-
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`tiffs rely on evidence that other individuals (such as Bonnie Wallace and Rochelle
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`Wells) disliked the books, but none of those individuals weeded the books or did
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`anything to influence Milum’s weeding decisions.7 The plaintiffs also do not deny
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`that Milum never read the 17 disputed books.
`
`• Ms. Milum weeded the 17 disputed books solely because she con-
`cluded, in her professional judgment, that the books satisfied the
`MUSTIE criteria for weeding. See Appellants’ Br. at 8.
`
`The plaintiffs do not deny that Milum sincerely believed that the 17 disputed
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`books were appropriate candidates for weeding based on the MUSTIE criteria, and
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`they do not claim and have no evidence to show that Milum is lying in her sworn
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`testimony. The plaintiffs argue that Milum misapplied the MUSTIE criteria when
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`weeding these 17 books,8 but they do not claim that Milum actually believed that the
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`books were improperly weeded, and they do not claim that she lied in her testimony
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`or sworn declarations when explaining her reasons for weeding the disputed books.
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`• Milum weeded Being Jazz from Llano Library yet declined to weed
`the version held at Kingsland Library, where it had a better circula-
`tion record. See Appellants’ Br. at 9.
`
`
`7. ROA.2499 (“I alone made the decisions to weed the 17 disputed books in this
`case. No other defendant in this case, including Bonnie Wallace, Rochelle
`Wells, Rhonda Schneider, Jerry Don Moss, or Ron Cunningham, has ever
`weeded a book from Llano library or directed me to weed a book. Nor has any
`of these individuals pressured or attempted to pressure me to weed any book
`from the library.”).
`8. See Appellees’ Br. at 9–11.
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`5
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`The plaintiffs do not deny that Milum declined to weed the Kingsland copy of
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`Being Jazz, where it had a better circulation record. They simply ignore this fact
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`when accusing Milum of weeding the book because of its content and viewpoints.
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`• Ron Cunningham, the Llano County Judge, never asked or directed
`Ms. Milum to “weed” any book. See Appellants’ Br. at 9.
`
`The plaintiffs never claim that Judge Cunningham ordered Milum to weed a
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`book. They claim only that he ordered her to “remove” the butt and fart books and
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`books containing nudity or sex, by which they mean he instructed her to temporarily
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`pull those books to review whether they should be weeded or relocated.
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`• Ms. Milum pulled and reviewed the 47 books on Bonnie Wallace’s
`spreadsheet but returned the vast majority of them to the shelves
`after determining that they did not meet the criteria for weeding.
`See Appellants’ Br. at 12.
`
`The plaintiffs do not deny that the vast majority of the books on Bonnie Wal-
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`lace’s list were not weeded and were returned to the shelves after Ms. Milum con-
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`ducted her review.
`
`• Library-weeding manuals not only authorize but require librarians to
`engage in both “content discrimination” and “viewpoint discrimi-
`nation” when weeding books. See Appellants’ Br. at 12.
`
`The plaintiffs do not deny that library-weeding manuals require both content
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`discrimination and viewpoint discrimination in weeding decisions, and they do not
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`question the authenticity of the excerpts that were quoted throughout our opening
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`brief. See Appellants’ Br. at 31–33.
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`6
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`II. The False And Misleading Statements In The
`Plaintiffs’ Brief
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`Although the plaintiffs do not deny or contest the facts as described in the ap-
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`pellants’ opening brief, their own brief is rife with misleading statements and (in
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`many places) outright falsehoods.
`
`A. The Misleading Statements In The Plaintiffs’ Brief
`Many statements in the plaintiffs’ brief are literally true if read a certain way,
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`yet are written with the intent to mislead the reader. Each of the following sentenc-
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`es, for example, uses the word “remove” to convey the impression that books were
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`being permanently removed (i.e., weeded), when they were only being temporarily
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`pulled from the shelves to evaluate whether they should be weeded or relocated:
`
`• “Defendants Cunningham and Moss directed Milum to remove the
`Butt and Fart Books.” Appellees’ Br. at 6.
`
` “[Milum] . . . agreed that ‘Cunningham also directed [her] to re-
`move the books.’” Appellees’ Br. at 6 n.4.
`
` “Milum removed [In the Night Kitchen] because it includes illustra-
`tions of a naked toddler.” Appellees’ Br. at 6–7.
`
` “Cunningham instructed Milum to remove from the shelves ‘[a]ny
`books with photos of naked or sexual conduct regardless if they are
`animated or actual photos[.]’” Appellees’ Br. at 7.
`
` “[T]he District Court . . . found that Defendants instructed Milum
`to remove the Banned Books.” Appellees’ Br. at 31.
`
` •
`
` •
`
` •
`
` •
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`In each of these sentences, the word “remove” refers only to the temporary pulling
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`of a book for review rather than the permanent decision to weed. But a reader could
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`easily be misled into thinking that Cunningham and Moss ordered Milum to weed
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`7
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`those books, or that Milum weeded (rather than reviewed) In the Night Kitchen be-
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`cause of the naked-toddler pictures.
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`Other statements in the plaintiffs’ brief attempt to convey a causal relationship
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`between events when none existed. Examples of this include:
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`• “In summer 2021, in response to directions from her Llano County
`superiors, Milum removed all seven titles from the Library Sys-
`tem.” Appellees’ Br. at 5.
`
` “Milum’s removal of the seven books resulted from complaints
`made by Defendants Wells and Schneider.” Appellees’ Br. at 5.
`
` “Milum followed her superiors’ directives, taking the books from
`the shelves and deleting them from the Library System catalog.”
`Appellees’ Br. at 6.
`
` •
`
` •
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`Each of these sentences describes events that preceded Milum’s decision to weed
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`the butt and fart books, as Milum had been directed by Judge Cunningham to tem-
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`porarily remove those books from those shelves before she decided to weed them.
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`ROA.2488; ROA.2499. But Milum was not instructed by anyone to weed those
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`books, and her decision to weed was not influenced in any way by Judge Cunning-
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`ham or Commissioner Moss. ROA.2488; ROA.2499.
`
`B. The False Statements In The Plaintiffs’ Brief
`In other places the plaintiffs’ brief crosses the line into outright falsehoods.
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`• “The ‘Wallace List,’ was ‘the list of books that Bonnie Wallace
`thought were inappropriate and should be removed from the Llano
`County Library System.’” Appellees’ Br. at 7.
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`It is untrue to say that Bonnie Wallace thought that the books on her list should
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`be “removed from the Llano County Library System.” Wallace’s e-mail specifically
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`asked that the books on her list not be removed because she feared it would lead
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`others to retaliate by removing library books that she supports. Instead, Wallace
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`asked only that those books be relocated from the children’s section to the adult
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`section:
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`[T]hese books (I have attached a list of dozens which are currently at
`our libraries) are in the CHILDREN’S section of the library and can
`be checked out by our children and grandchildren. I am not advocating
`for any books to be censored but to be RELOCATED to the ADULT
`section where a child would need to get their parent’s approval to check
`out. It is the only way that I can think of to prohibit future censorship
`of books I do agree with, mainly the Bible, if more radicals come to
`town and want to use the fact that we censored these books against us.
`
`ROA.350 (emphasis added).
`
`The plaintiffs think they can tell this Court that Wallace wanted the books re-
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`moved by quoting from a loaded question that one of their attorneys asked during
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`the preliminary-injunction hearing. ROA.3959 (“Q. That’s a book that was on
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`Bonnie Wallace’s list, yes? A. Yes. Q. The book of—the list of books that Bonnie
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`Wallace thought were inappropriate and should be removed from the Llano County
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`Library System, correct? A. Yes.”). The premise of that question was false, yet the
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`plaintiffs’ brief quotes from that loaded question as if it were an established fact. An
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`attorney cannot make a false statement of fact to a tribunal, and the plaintiffs cannot
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`circumvent this rule by asking a loaded question in the district court and then quot-
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`ing the false portion of that question in their appellate brief.
`
`• “By the end of 2021, Defendants had removed the remaining
`Banned Books—all of which were on the Wallace List—from the
`Llano library, in addition to the Butt and Fart Books, In the Night
`Kitchen, and It’s Perfectly Normal.” Appellees’ Br. at 8.
`
`9
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`This statement is false because Under the Moon is not on the Wallace List, even
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`though it is one of the “remaining” disputed books that the plaintiffs are suing over.
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`ROA.357.
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`• “Defendants admitted that the reason that these ‘CRT and
`LGBTQ’ books were ‘selected for weeding’ was because they were
`on the Wallace List.” Appellees’ Br. at 9.
`
`Milum testified under oath that she pulled the books on Wallace’s list only to
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`review whether they should be weeded:
`
`Q. So the reason you pulled the books off the shelves to look at them
`for weeding was because they were on Ms. Wallace’s list, correct?
`
`A. I pulled them to review them, not to weed them.
`
`Q. Okay. You pulled them because they were on Ms. Wallace’s list?
`
`A. Yes.
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`ROA.3953 (emphasis added). The reason that the books were reviewed was because
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`they were on Wallace’s list; the reason that they were “selected for weeding” was
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`only because Milum concluded that they met the MUSTIE criteria. ROA.675;
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`ROA.2507-2508.
`
`• “Historically, the Library System would not consider a book for
`weeding unless it met two or three MUSTIE criteria.” Appellees’
`Br. at 10.
`
`This is another falsehood. Milum declared that “it is permissible and some-
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`times prudent for a librarian to weed a book based on the presence of a single
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`MUSTIE factor, and the plaintiffs are wrong to assert that Llano library ‘historical-
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`ly’ has weeded books only when two or three MUSTIE criteria are satisfied.”
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`10
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`ROA.2502. The plaintiffs cite testimony from Tina Castelan, a former librarian who
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`testified against Milum at the preliminary-injunction hearing, but here is what
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`Castelan had to say:
`
`Q. Does any one MUSTIE factor mean that a book is weeded?
`A. No. It’s usually a combination.
`Q. Is there a minimum number?
`A. So my minimum number was always two to three.
`
`ROA.3891 (emphasis added). Castelan was not testifying about “historical” prac-
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`tices at the Llano library; she was describing her own personal application of the
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`MUSTIE factors. She also hedged by saying that it’s “usually” a combination of
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`factors, a qualification that the plaintiffs omit when citing this testimony.
`
`• “None of the removed books, however, qualified for weeding under
`the Library System’s general weeding practices.” Appellees’ Br. at
`9.
`
`The plaintiffs know this statement is false, because on the next page they con-
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`cede that Freakboy was properly weeded. See Appellees’ Br. at 10 (“All but one of
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`the 17 books at issue were weeded contrary to Library System policies and practic-
`
`es.” (emphasis added)); ROA.3908-3909 (Castelan conceding that Milum was right
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`to weed Freakboy because of its poor circulation record).
`
`More importantly, Amber Milum testified repeatedly and in detail about how
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`each of the disputed books qualified for weeding under the MUSTIE factors.
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`ROA.672 (¶ 8); ROA.675-676 (¶¶ 12–16); ROA.4174-4185 (Milum explaining her
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`reasons for weeding Freakboy, Being Jazz, Gabi, A Girl In Pieces, They Called Them-
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`selves The KKK, Spinning, Shine, Caste: The Origins of Discontent, It’s Perfectly Nor-
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`mal, and In The Night Kitchen, and how each of those books met multiple criteria for
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`11
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`Case: 23-50224 Document: 120-1 Page: 16 Date Filed: 06/02/2023
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`weeding under MUSTIE). Ms. Milum also explained her reasons for weeding the
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`“butt” and “fart” books: (1) No one had asked for or inquired about the “butt”
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`books that were continuously being checked out by Rochelle Wells and Rhonda
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`Schneider;9 (2) The actions of Wells and Schneider would render the “butt” and
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`“fart” books inaccessible to other patrons;10 and (3) The “butt” and “fart” books
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`were trivial and “didn’t really meet anyone’s needs,” and they remained available to
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`patrons through interlibrary loans, so the books satisfied the “Trivial” and “Else-
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`where” factors for weeding under the MUSTIE framework.11
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`The plaintiffs insist that the disputed books did not meet the library’s criteria
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`for weeding, but they base this claim on the testimony of a single witness, Tina
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`Castelan, who claimed that Milum’s decisions to weed some of the disputed books
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`violated the library’s weeding policies. ROA.3903-3915. Castelan’s accusation is
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`false and was soundly refuted by Ms. Milum’s courtroom testimony and declara-
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`tions. Every single book that Milum weeded met at least one of the MUSTIE fac-
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`tors, and nearly all of them satisfied two and possibly more of those factors.
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`ROA.4174-4187. Castelan’s testimony did not rebut any of this, as she opined only
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`that the circulation record of those books was not, in her opinion, enough to support
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`a decision to weed. ROA.3903-3915. But Castelan was never asked whether any
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`9. ROA.4185 (“[N]obody else asked for it.”).
`10. ROA.4185-4186.
`11. ROA.4186 (“[I]t was just silly trivial books”); id. (“They were more trivial
`books, anyway.”); ROA.4187 (“Q. . . . [H]ow many criterion total did these
`books qualify for? A. Trivial, irrelevant, it didn't really meet anyone's needs
`and elsewhere.”).
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`12
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`Case: 23-50224 Document: 120-1 Page: 17 Date Filed: 06/02/2023
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`other MUSTIE factors could support Milum’s decision to weed those 16 books,
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`such as the “Ugly,” “Trivial,” or “Elsewhere” criteria, and Castelan did not rebut
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`Milum’s reliance (or potential reliance) on those factors. Milum, for example, testi-
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`fied that the “butt” and “fart” books were appropriately weeded under the “Trivi-
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`al” and “Elsewhere” categories,12 and that the “Elsewhere” category supported
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`her decision to weed the other disputed books.13 Castelan never even addressed (let
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`alone rebutted) this.
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`Castelan’s testimony was mistaken in other respects. She claimed, for example,
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`that It’s Perfectly Normal was improperly weeded “because its last checkout was in
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`2018,”14 but under the Llano library’s CREW chart a book in that Dewey class be-
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`comes eligible for weeding three years since its last checkout. ROA.2053 (¶ 27).
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`Castelan also testified that Gabi, a Girl in Pieces was improperly weeded “because
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`[its] last checkout was 2018 and we’ve had it since 2016.” ROA.3914. But Gabi is a
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`Young Adults book, which becomes eligible for weeding two years after its last cir-
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`culation or three years after it was first acquired. ROA.2053 (¶ 28). Gabi qualified
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`for weeding under either criterion. Castelan also claimed that Being Jazz was im-
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`properly weeded because the Llano libraries “only had one or two of the books that
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`pertained to its subject.” ROA.3912. That is untrue; there are no fewer than 10 oth-
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`er books on the subject of transgender youth in the Llano library system, in addition
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`12. See note 11, supra.
`13. ROA.4171-4187.
`14. ROA.3907.
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`13
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`Case: 23-50224 Document: 120-1 Page: 18 Date Filed: 06/02/2023
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`to the copy of Being Jazz that remains in circulation at the Kingsland library.
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`ROA.2503-2054 (¶ 29).
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`• “The District Court did not credit Milum’s testimony.” Appellees’
`Br. at 10.
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`Nothing in the district court’s opinion rejects Milum’s testimony or declares it
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`false. On the contrary, the district court recognized the conflicting testimony be-
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`tween Milum and Castelan but refused to resolve the dispute, declaring that “given
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`its subjective nature, reasonable minds may disagree over how to apply the CREW
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`and MUSTIE criteria.” ROA.3527 n.7. The district court also relied on Milum’s
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`testimony to support its conclusion that the plaintiffs had made a clear showing of
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`viewpoint discrimination and content discrimination. ROA.3525; ROA.3527.
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`• “Milum . . . could not explain why hundreds of other books not
`checked out for decades were currently still on library shelves.”
`Appellees’ Br. at 10.
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`Milum explained this. She said that the Llano County library system is behind
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`on weeding due to staffing constraints and other factors. ROA.2505 (“I have not yet
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`had the opportunity to conduct a thorough weed of the library shelves since becom-
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`ing system director, and we stopped weeding entirely in late 2021. The library sys-
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`tem has been understaffed (and therefore under-weeded) for years, which is why
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`there are so many books on the shelves that should be weeded but have not yet
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`been.”).
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`• “Milum admitted that there was no need to make space for new
`books in November 2021 because the Commissioners Court had
`suspended all new purchases a month before she removed the Wal-
`lace List books from the library.” Appellees’ Br. at 32–33.
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`14
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`Case: 23-50224 Document: 120-1 Page: 19 Date Filed: 06/02/2023
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`This is a misrepresentation of Milum’s testimony. Milum was asked whether
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`the weeding in November of 2021 was done “to make room for new