Case: 23-50224 Document: 164-1 Page: 1 Date Filed: 06/06/2024
`
`United States Court of Appeals
`for the Fifth Circuit
`____________
`
`No. 23-50224
`____________
`
`Leila Green Little; Jeanne Puryear; Kathy Kennedy;
`Rebecca Jones; Richard Day; Cynthia Waring; Diane
`Moster,
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`June 6, 2024
`
`Lyle W. Cayce
`Clerk
`
`Plaintiffs—Appellees,
`
`
`
`versus
`
`
`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 capacity as Llano County Library Board Member; Gay Baskin,
`in her official capacity as Llano County Library Board Member,
`
`
`Defendants—Appellants.
`______________________________
`
`
`
`Appeal from the United States District Court
`for the Western District of Texas
`USDC No. 1:22-CV-424
`______________________________
`
`
`Before Wiener, Southwick, and Duncan, Circuit Judges.
`
`

`

`Case: 23-50224 Document: 164-1 Page: 2 Date Filed: 06/06/2024
`
`No. 23-50224
`
`Jacques L. Wiener, Jr., Circuit Judge:
`
`The dirtiest book in all the world is the expurgated book.1
`
`Plaintiffs-Appellees, seven patrons of the Llano County library system
`(“Plaintiffs”), brought this suit against Defendants-Appellants Llano
`County, the members of the County’s Commissioners Court, the County’s
`library system director, and the library board (collectively, “Defendants”).
`Plaintiffs claim that Defendants violated their First Amendment right to
`access information and ideas by removing seventeen books based on their
`contents and messages. The district court granted Plaintiffs’ request for a
`preliminary injunction, requiring Defendants to return “all print books that
`were removed because of their viewpoint or content” and enjoining
`Defendants from “removing any books . . . for any reason during the
`pendency of this action.” Defendants appeal. For the reasons to follow, we
`MODIFY the language of the injunction to ensure its proper scope, but
`otherwise AFFIRM.
`
`I. Facts
`
`Libraries must continuously review their collection to ensure that it is
`
`up to date and to make room for new acquisitions. Like many libraries, the
`Llano County library system uses the “Continuous Review, Evaluation and
`Weeding” (“CREW”) process. This is a standardized method of evaluating
`a library’s collection and removing outdated or duplicated materials (also
`known as “weeding”), according to objective, neutral criteria. Llano County
`applies the “MUSTIE” factors in weeding books, as recommended by
`experts in the field, under which a book is evaluated for whether it is (1)
`“Misleading and/or factually inaccurate,” (2) “Ugly (worn out beyond
`
`_____________________
`
`1 Walt Whitman (1888), in Horace Traubel, With Walt Whitman in
`Camden 124 (1906).
`
`2
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`mending or rebinding),” (3) “Superseded by a new edition or a better
`source,” (4) “Trivial (of no discernable literary or scientific merit),” (5)
`“Irrelevant to the needs and interests of the community,” or (6) “Elsewhere
`(the material may be easily borrowed from another source).” Weeding
`decisions are made based on “some combination of these criteria – that is, an
`item will probably not be discarded based on meeting only one these criteria.”
`
`Llano County’s public library system has three physical branches,
`
`respectively located in Llano, Kingsland, and Buchanan Dam. The library
`also offers access to e-books and audiobooks through a digital service called
`Bibliotheca. Amber Milum serves as the director of the library system. See
`Tex. Local Gov’t Code § 323.005(a) (providing for the appointment
`of a “county librarian”). The library is under the general supervision of the
`County’s Commissioners Court, which is led by Judge Ron Cunningham. See
`id. § 323.006.
`
`In August 2021, Llano resident Rochelle Wells, together with Eva
`
`Carter and Jo Ares, complained to Cunningham about “pornographic and
`overtly sexual books in the library’s children’s section.” They were
`specifically concerned with several books about “butts and farts.” Wells had
`been checking out those books continuously for months to prevent others
`from accessing them. As library director, Milum had initially ordered those
`books because she thought, based on her training, that they were age
`appropriate. Because of the complaints, Cunningham told Milum to remove
`the books from the shelves. Commissioner Jerry Don Moss also requested
`that Milum remove the books, telling her that the next step would be going
`to court, which would lead to bad publicity, and advising her to “pick her
`battles.” She followed those instructions and removed the “butt and fart”
`books from both the library shelves and the catalog.
`
`3
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`
`A few months later, in response to further complaints, Cunningham
`directed Milum to immediately pull all books from the shelves that “depict
`any type of sexual activity or questionable nudity.” That direction came via
`a forwarded email that Cunningham had received from a constituent named
`Bonnie Wallace. Wallace had sent Cunningham a list of books in the Llano
`County library system that appeared on Texas Representative Matt Krause’s
`list of objectionable material, referring to the books as “pornographic filth.”
`After receiving that list (“the Wallace list”) from Cunningham, Milum
`pulled the books from the shelves, allegedly to “weed” them based on the
`traditional MUSTIE factors. Milum testified that she would not have pulled
`the books had it not been for her receipt of the Wallace list. In fact, she had
`pulled no other books for review during that time period. By the end of 2021,
`seventeen books—all on the Wallace List—had been removed from the
`Llano County library system entirely.
`
`Loosely grouped, those books are:
`
`• Seven “butt and fart” books, with titles like I Broke My Butt! and Larry
`the Farting Leprechaun;
`• Four young adult books touching on sexuality and homosexuality,
`such as Gabi, a Girl in Pieces;
`• Being Jazz: My Life as a (Transgender) Teen and Freakboy, both
`centering on gender identity and dysphoria;
`• Caste and They Called Themselves the K.K.K., two books about the
`history of racism in the United States;
`• Well-known picture book, In the Night Kitchen by Maurice Sendak,
`which contains cartoon drawings of a naked child; and
`• It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual
`Health.
`
`4
`
`

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`No. 23-50224
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`In January 2022, the existing library board was dissolved and a new
`board was created. Cunningham appointed Wells and Wallace to the new
`board. The new board implemented several policy changes, including
`prohibiting Milum from attending their meetings and requiring her to seek
`approval before purchasing any new books.
`
`Defendants’ attorney donated copies of the seventeen books back to
`the library after the inception of this litigation. However, today the books are
`not on shelves nor in the catalog system. Instead, if a patron wishes to access
`them, he or she must approach the desk and ask the librarian for them. Their
`existence has not been advertised in any way: Without reading the briefs in
`this lawsuit, there is no way to know that the books are available. Defendants
`characterize this as an “in-house checkout system,” which has been
`traditionally used to let people read reference books inside the library.
`However, unlike the seventeen at issue here, those books are available in the
`catalog.
`
`II. Procedural History
`
`Plaintiffs, seven patrons of the library, brought this suit, alleging that
`
`Defendants removed the seventeen books because they disagreed with the
`books’ content, in violation of the First Amendment.2 Plaintiffs sought a
`preliminary injunction requiring, among other things, that Defendants
`replace the seventeen books. In response, Defendants moved to dismiss
`Plaintiffs’ suit under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
`After a two-day evidentiary hearing, the district court largely denied
`
`_____________________
`
`2 Plaintiffs also brought a due process claim under the Fourteenth Amendment.
`However, that claim is not at issue in this appeal because the district court did not rely on
`it in granting the preliminary injunction.
`
`5
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`

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`No. 23-50224
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`Defendants’ motion to dismiss and granted Plaintiffs’ motion for a
`preliminary injunction.
`
`The district court first held that Plaintiffs had standing to bring the
`case, including assertion of a constitutional injury in the form of an inability
`to check out the contested books. The court rejected Defendants’ argument
`that Plaintiffs’ claims were mooted because they could access the books
`through Bibliotheca or the in-house checkout system.3 The district court next
`held that Plaintiffs’ complaint adequately pleaded a First Amendment claim
`upon which relief could be granted, noting that while public libraries have
`“broad discretion” to curate the content of their collections, this discretion
`is not absolute. See United States v. Am. Libr. Ass’n, Inc., 539 U.S. 194, 204
`(2003) (plurality opinion) (hereinafter “ALA”). The court therefore
`adopted a standard from our 1995 decision Campbell v. St. Tammany Parish
`School Board, in which we held that libraries may not “remove books from
`school library shelves ‘simply because they dislike the ideas contained in
`those books.’” 64 F.3d 184, 188 (5th Cir. 1995) (quoting Bd. of Educ., Island
`Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 872 (1982) (plurality
`opinion)). “The key inquiry in a book removal case,” we wrote in Campbell,
`is whether the government’s “substantial motivation” was to deny library
`users access to “objectionable ideas.” Id. at 187, 190. The district court held
`that Plaintiffs had adequately pled that “Defendants’ conduct was
`substantially motivated by a desire to remove books promoting ideas with
`which [they] disagreed.”
`
`_____________________
`
`3 Initially, Plaintiffs also brought a claim relating to OverDrive, the online book
`database that the library had used prior to Bibliotheca. The district court granted
`Defendants’ motion to dismiss Plaintiffs’ “OverDrive-related claims” because they were
`mooted by the County’s new contract with Bibliotheca.
`
`6
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`The trial court then considered Plaintiffs’ application for a
`preliminary injunction. It held that Plaintiffs were likely to succeed on the
`merits of their claim, addressing both viewpoint and content discrimination.
`As to viewpoint discrimination, applying the standard from Campbell, the
`court found that Defendants’ “likely motivat[ion]” in removing the books
`was “a desire to limit access to the viewpoints” with which they disagreed.
`It saw Defendants’ claim that the removals were part of the library’s routine
`weeding process as a post hoc and pretextual rationalization. The court also
`determined that Plaintiffs were likely to succeed on the merits of their First
`Amendment claim through a content discrimination analysis, as the removal
`decisions would not survive strict scrutiny.
`
`Finding the remaining preliminary injunction factors to be satisfied,
`the district court ordered Defendants to “(1) return all print books that were
`removed because of their viewpoint or content,” including the seventeen
`books at issue; (2) “update all Llano County Library Service’s catalogs to
`reflect that these books are available for checkout”; and (3) refrain from
`“removing any books from the Llano County Library Service’s catalog for
`any reason during the pendency of this action.”
`
`Defendants timely appealed the district court’s injunction. They also
`
`moved to expedite the appeal and for an injunction pending appeal. A
`motions panel of our court agreed to expedite and carried the motion for an
`injunction with the case. When this panel was assigned the case, we granted
`an administrative stay of the district court proceedings pending our decision.
`
`III. Standard of Review
`
`“We review a preliminary injunction for abuse of discretion,
`
`reviewing findings of fact for clear error and conclusions of law de novo.” Rest.
`Law Ctr. v. U.S. Dep’t of Lab., 66 F.4th 593, 597 (5th Cir. 2023) (citation
`omitted). A factual finding is not clearly erroneous if it is “plausible in light
`
`7
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`of the record viewed in its entirety . . . even though we may have weighed the
`evidence differently.” Taylor-Travis v. Jackson State Univ., 984 F.3d 1107,
`1116 (5th Cir. 2021) (citation omitted). To obtain the “extraordinary
`remedy” of a preliminary injunction, the movant must show “(1) a
`substantial likelihood of prevailing on the merits; (2) a substantial threat of
`irreparable injury if the injunction is not granted; (3) the threatened injury
`outweighs any harm that will result to the non-movant if the injunction is
`granted; and (4) the injunction will not disserve the public interest.” La
`Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency, 608 F.3d 217, 219
`(5th Cir. 2010).
`
`IV. Analysis
`
`The crux of this appeal concerns the appropriate balance between a
`
`library’s necessary discretion in making collection decisions and the rights of
`its patrons to access information and ideas. Although this is undoubtedly a
`hot-button issue at present, we answered the question in 1995 in Campbell, a
`directly applicable decision that circumscribes the boundaries of our analysis
`today. The district court, applying the correct standard, did not abuse its
`discretion in granting Plaintiffs’ request for a preliminary injunction. We
`explain why below.
`
`A. The First Amendment Limits Public Libraries’ Discretion to Shape
`Their Collections
`
`We first outline the relevant cases to trace the contours of the First
`
`Amendment as it applies to libraries and book removal. While the First
`Amendment may most famously shield freedom of speech, it also protects
`“the right to receive information and ideas.” Stanley v. Georgia, 394 U.S. 557,
`564 (1969). This right is a “necessary predicate to the recipient’s meaningful
`
`8
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`

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`exercise” of other rights protected by the First Amendment. Pico, 457 U.S.
`at 867 (plurality opinion).4
`
`In Pico, the Supreme Court considered whether school officials acted
`in violation of the First Amendment when they removed what critics called
`“just plain filthy” books from public school library shelves. Id. at 857
`(plurality opinion). A plurality of the Court observed that, because students
`do not “shed their constitutional rights . . . at the schoolhouse gate,” school
`officials must discharge their discretionary functions “within the limits and
`constraints of the First Amendment.” Id. at 865 (plurality opinion) (quoting
`Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 506 (1969)). The Court held
`that while school boards have discretion to “determine the content of their
`school libraries,” such discretion “may not be exercised in a narrowly
`partisan or political manner.” Id. at 870 (plurality opinion). School officials
`“may not remove books from school library shelves simply because they
`dislike the ideas contained in those books.” Id. at 872 (plurality opinion). If
`they do so with the intent to deny “access to ideas with which [they]
`disagree[], and if this intent [is] the decisive factor in [their] decision, then
`
`_____________________
`
`4 The dissent asserts that Stanley’s “right to receive information and ideas” is only
`relevant in a private context. It is true that the only quasi-binding precedent to apply this
`right to public libraries is one of Pico’s several opinions. Note, however, that this court has
`applied Stanley’s rule in the context of prison libraries, see Mann v. Smith, 796 F.2d 79, 83
`n.3 (5th Cir. 1986), and other circuits have applied it to public libraries, see Kreimer v.
`Bureau of Police for Town of Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992). And regardless,
`the Supreme Court has applied Stanley in various other non-private contexts, rendering the
`dissent’s concern about extending its holding inapt. See, e.g., Richmond Newspapers, Inc. v.
`Virginia, 448 U.S. 555, 576 (1980) (attending criminal trials); Va. State Bd. of Pharm. v. Va.
`Citizens Consumer Council, Inc., 425 U.S. 748, 757 (1976) (receiving advertisements with
`prescription drug prices); Kleindienst v. Mandel, 408 U.S. 753, 763 (1972) (hearing a
`lecturer speak).
`
`9
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`[they] have exercised their discretion in violation of the Constitution.”5 Id.
`at 871 (plurality opinion).6
`
`We had an opportunity to apply this Supreme Court guidance in
`
`Campbell. There, school officials had removed the book Voodoo & Hoodoo
`from the school library after parents complained that the book was
`dangerous. 64 F.3d at 186–87. We affirmed the principle that the “key inquiry
`in a book removal case” is the remover’s “substantial motivation in arriving
`at the removal decision.” Id. at 190. The record, however, was not
`sufficiently developed at the summary judgment stage to determine whether
`“the single decisive motivation” behind the removal decision was to “deny
`students access to ideas with which the school officials disagreed.” Id. at 188,
`191. Thus, while the circumstances surrounding the removal of Voodoo &
`Hoodoo could not “help but raise questions regarding the constitutional
`validity of [the] decision,” we remanded the case to the district court for
`further factual consideration. Id. at 191.
`
`Also relevant to our analysis today is the Supreme Court’s 2003
`
`American Library Association decision. That case addressed a federal law
`granting public libraries money for internet access, provided that they install
`computer filters to block material harmful to children. 539 U.S. at 201. A
`
`_____________________
`
`5 A “decisive factor” is a “‘substantial factor’ in the absence of which the opposite
`decision would have been reached.” Pico, 457 U.S. at 871 n.22 (plurality opinion).
`6 Although Pico was a highly fractured opinion, the Supreme Court has clarified
`that “all members of the Court, otherwise sharply divided, acknowledged that the school
`board has the authority to remove books that are vulgar.” Bethel Sch. Dist. No. 403 v. Fraser,
`478 U.S. 675, 684 (1986). We have said that while “the constitutional analysis in the Pico
`plurality opinion does not constitute binding precedent, it may properly serve as guidance
`in determining whether the . . . removal decision was based on constitutional motives.”
`Campbell, 64 F.3d 189. Our opinion in Muir v. Alabama Educational Television Commission
`does not compel an alternative result. See id. (citing Muir, 688 F.2d 1033, 1045 n.30 (5th
`Cir. 1982) (en banc)).
`
`10
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`plurality of the Court rejected a facial First Amendment challenge to the law.
`See id. at 198–99 (plurality opinion). The yet again sharply divided Court
`(with a four-judge plurality, two concurrences, and three dissents) did so for
`different reasons. Justice Rehnquist, writing for the plurality, emphasized
`public libraries’ “broad discretion” in shaping their collections, writing that
`it is the librarian’s responsibility to “separate out the gold from the garbage.”
`Id. at 204 (plurality opinion) (quoting W. Katz, Collection
`Development: The Selection of Materials for Libraries
`6 (1980)). Justice Kennedy focused not on libraries’ discretion but instead on
`the fact that a librarian could quickly unblock material upon request,
`rendering any burden on patrons insignificant. Id. at 214–15 (Kennedy, J.,
`concurring). Finally, Justice Breyer’s concurrence was concerned with “fit”:
`the relative burden that the law placed on library patrons versus the
`government’s legitimate interests in protecting young library patrons from
`inappropriate material. Id. at 220 (Breyer, J., concurring). There were very
`few “common denominators” between these three opinions which would
`“provide a controlling rule that establishes or overrules precedent.” See
`Whole Woman’s Health v. Paxton, 972 F.3d 649, 652 (5th Cir. 2020) (internal
`quotation marks and citation omitted). To the extent that one exists, we see
`it as an agreement that libraries must consider content to some degree in
`selecting material. But we still hesitate to ascribe ALA with significant
`precedential power, such that it could have modified the clear rule that we
`announced in Campbell.
`
`From these three cases, we glean the following rules. Librarians may
`consider books’ contents in making curation decisions. Id. at 205 (plurality
`opinion). Their discretion, however, must be balanced against patrons’ First
`Amendment rights. Pico, 457 U.S. at 865 (plurality opinion). One of these
`rights is “the right to receive information and ideas.” Stanley, 394 U.S. at
`564. This right is violated when an official who removes a book is
`
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`“substantially motivated” by the desire to deny “access to ideas with which
`[they] disagree[].” Pico, 457 U.S. at 871 (plurality opinion); see also Campbell,
`64 F.3d at 191. To be sure, content is necessarily relevant in removal
`decisions. ALA, 539 U.S. at 205 (plurality opinion). But a book may not be
`removed for the sole—or a substantial— reason that the decisionmaker does
`not wish patrons to be able to access the book’s viewpoint or message.
`Campbell, 64 F.3d at 191. Thus, a librarian who removes the 7th Edition of a
`Merriam-Webster dictionary in favor of the 8th Edition does not act
`unconstitutionally simply because he or she considers the books’ content and
`prefers the new edition. They may remove the 7th Edition with the intent to
`eliminate superfluous editions to make room for new volumes, or merely
`because the content is superseded by the 8th Edition. Similarly, a book by a
`former Grand Wizard of the K.K.K., which hasn’t been checked out in years
`and is discovered by a librarian during routine weeding, could be removed
`based on lack of interest and poor circulation history.
`
`We agree with Defendants that public forum principles are “out of
`
`place in the context of this case.” ALA, 539 U.S. at 205 (plurality opinion).
`In ALA, the plurality explained in dicta that forum analysis is inapplicable
`because “[a] public library does not acquire internet terminals in order to
`create a public forum for Web publishers to express themselves, any more
`than it collects books in order to provide a public forum for the authors of
`books to speak.” Id. at 206 (plurality opinion). But that is not what Plaintiffs
`argue here. They are not authors who seek to have their books included in the
`library’s collection, but instead are patrons who seek to exercise their right to
`receive information.7 This distinction is relevant to the applicability of forum
`
`_____________________
`
`7 This also distinguishes many of the cases cited by the dissent. See, e.g., Pleasant
`Grove City, Utah v. Summum, 555 U.S. 460, 465 (2009) (plaintiff was organization seeking
`
`12
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`principles. In Chiras v. Miller, a textbook author and a student brought suit
`against a state board of education that decided to select certain textbooks over
`others. 432 F.3d 606, 607 (5th Cir. 2005). A panel of our court relied on ALA
`and found that forum analysis did not apply. Id. at 615. We did so on
`consideration of whether there was a “forum to which Chiras [the textbook
`author] might assert a right of access under the First Amendment.” Id. at
`618. But, we wrote, “[t]he conclusion that no forum exists in this case does
`not necessarily preclude . . . Appellant Rodriguez’s asserted right as a student
`to receive the information in Chiras’ textbook from the school.” Id.
`
`The dissent—like Defendants—attempts to distinguish Pico and
`
`Campbell from ALA and the case at hand. Each of the reasons for doing so is
`without merit; all four cases are harmonizable. First, our colleague believes
`that Campbell’s focus on the “unique role of the school library”
`circumscribes its applicability. See Campbell, 64 F.3d at 188 (quoting Pico, 457
`U.S. at 869 (plurality opinion)). It is beyond dispute that there are unique
`considerations involved in balancing the discretion necessary for collection
`curation against students’ First Amendment rights. See Pico, 457 U.S. at 879
`(Blackmun, J., concurring). But if the principles enshrined in Pico and
`Campbell apply in the education context, in which particular free speech
`principles are restricted because of school officials’ need to control the
`curriculum and school environment, then they apply with even greater force
`outside of the education context, where no such limitations exist. See Sund v.
`City of Wichita Falls, Tex., 121 F. Supp. 3d 530, 548 (N.D. Tex. 2000). In
`emphasizing that students do not “shed their constitutional rights . . . at the
`schoolhouse gate,” the Court in Pico necessarily acknowledged that rights
`outside the school context are even more robust. See Pico, 457 U.S. at 865
`_____________________
`
`to create and donate monument to public park); People for the Ethical Treatment of Animals,
`Inc. v. Gittens, 414 F.3d 23, 26 (D.C. Cir. 2005) (same).
`
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`(plurality opinion) (quoting Tinker, 393 U.S. at 506). The Court in Pico also
`expressly emphasized that its holding is limited to “library books, books that
`by their nature are optional rather than required reading,” as opposed to
`curricular materials. Id. at 862 (plurality opinion). This rendered the unique
`constitutional concerns of the classroom immaterial to the case. See id. (“Our
`adjudication of the present case thus does not intrude into the classroom.”).8
`As we noted in Campbell, “the high degree of deference accorded to
`educators’ decisions regarding curricular matters diminishes when the
`challenged decision involves a noncurricular matter.” 64 F.3d at 188. Our
`colleague’s worry about “transplanting Campbell into the realm of public
`libraries” is therefore misplaced, as we are already bound by its reasoning in
`and out of the school context.
`
`The dissent next insists that ALA prevents us from applying Campbell,
`
`as Campbell’s “substantial motivation” test is incompatible with ALA’s
`recognition of public libraries’ “broad discretion” in collection curation.
`First, as we noted above, the badly fractured nature of ALA’s plurality
`opinion circumscribes its precedential effect. We are skeptical that five
`Justices would have agreed with the “broad discretion” language of the
`plurality. Further, “broad discretion” is not the same as “unlimited
`discretion.” The Supreme Court recognized in Pico that officials do not have
`“absolute discretion to remove books from their school libraries.” 457 U.S.
`at 869 (plurality opinion). The hypothetical posed by the dissent is inapt: If a
`librarian exercises his or her discretion in removing a book promoting
`Holocaust denial, as allegedly allowed by ALA, it does not necessarily follow
`
`_____________________
`
`8 We discussed this distinction in Chiras v. Miller, in which we declined to apply
`Pico to a situation involving the selection of a textbook for use in the classroom, as Pico
`concerned “the removal of an optional book from the school library.” 432 F.3d at 619
`(emphasis added).
`
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`No. 23-50224
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`that “the book is being removed because the library dislikes the ideas in it,”
`as forbidden by Campbell. Instead, the librarian might be removing the book
`based on other constitutional considerations, such as the accuracy of the
`content. Although a public library does have discretion to consider books’
`content in shaping its collection, when such discretion is exercised via
`unconstitutional motivations—i.e., a desire to “prescribe what shall be
`orthodox,”—the protections of the First Amendment necessarily come into
`play. Pico, 457 U.S. at 872 (plurality opinion) (quoting W. Va. Bd. of Educ. v.
`Barnette, 319 U.S. 624, 642 (1943)). The dissent’s second justification for
`rejecting Campbell, then, is also unpersuasive.
`
`Finally, the dissent contends that, even if Campbell were to apply in
`
`the public library context, the district court’s application of the case does not
`comport with its holding. Our colleague sees the district court’s use of strict
`scrutiny for content-related decisions as being in conflict with Campbell’s
`suggestion that removing “pervasively vulgar” or “educational[ly]
`[un]suitable” books would not be unconstitutional. See Campbell, 64 F.3d at
`188–89 (quoting Pico, 457 U.S. at 871 (plurality opinion)). The district
`court’s opinion is somewhat imprecise on the difference between viewpoint
`and content discrimination and the role that Campbell’s substantial-
`motivation test plays in each analysis. But Campbell’s rule holds true
`regardless: if the remover’s motivation is to deny access to ideas with which
`he or she disagrees, the remover violates the Constitution. Id. at 188. Even if
`this decision were subject to only the lowest level of scrutiny, the government
`has no legitimate interests furthered by removal. We therefore hold that if a
`government decisionmaker removes a book with the substantial motivation
`to prevent access to particular points of view, he or she violates the First
`Amendment, and no further analysis is required.
`
`Before the district court, Defendants also asserted that their actions in
`selecting books for library shelves constituted government speech, to which
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`Case: 23-50224 Document: 164-1 Page: 16 Date Filed: 06/06/2024
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`No. 23-50224
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`the Free Speech Clause does not apply. The district court disagreed,
`explaining that it was bound by Campbell’s application of the First
`Amendment to library collection decisions.9 Defendants have not pressed
`this theory on appeal, although our dissenting colleague remains convinced.10
`
`While “[t]he Free Speech Clause . . . does not regulate government
`
`speech,” collection decisions are not such speech. See Pleasant Grove City,
`Utah v. Summum, 555 U.S. 460, 467 (2009). Nowhere in Campbell, which is
`binding on us, did we suggest that a public official’s decision to remove a book
`from a school library was government speech. See 64 F.3d at 190. The choice
`to do so is subject to the First Amendment’s limitations. See id. at 188. The
`cases cited by our dissenting colleague, like Forbes and Finley, stand for the
`proposition that the government requires extensive discretion in “deciding
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`_____________________
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`9 The district court also distinguished between cases cited by Defendants about the
`initial selection of materials versus those regarding book removal, holding that only the
`latter were relevant to the case at hand. We decline to expressly address the relevance of
`this distinction because Campbell’s clear application renders it unnecessary for the scope
`of our review today. We note that it is entirely possible that a book with a strong viewpoint,
`initially protected on selection, might later be constitutionally removed if, inter alia, it
`becomes damaged or is not checked out.
`10 Plaintiffs contend that Defendants have waived their government-speech
`argument by not raising it in their opening brief to this co