Case: 23-50224 Document: 185 Page: 1 Date Filed: 07/01/2024
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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, AND 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, RHONDA SCHNEIDER, IN HER OFFICIAL
`CAPACITY AS LLANO COUNTY LIBRARY BOARD MEMBER, AND
`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, Austin Division
`1:22-cv-00424-RP
`
` PLAINTIFFS-APPELLEES’ RESPONSE TO PETITION
`FOR REHEARING EN BANC
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`(Counsel Listed Inside Cover)
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`PLAINTIFFS-APPELLEES’ RESPONSE TO PETITION FOR REHEARING EN BANC
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`Case: 23-50224 Document: 185 Page: 2 Date Filed: 07/01/2024
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`Katherine P. Chiarello
`(TX Bar No. 24006994)
`Ryan A. Botkin
`(TX Bar No. 00793366)
`María Amelia Calaf
`(TX Bar No. 24081915)
`Botkin Chiarello Calaf PLLC
`1209 Nueces Street
`Austin, Texas 78701
`Tel: 512-615-2341
`Fax: 737-289-4695
`ryan@bccaustin.com
`katherine@bccaustin.com
`mac@bccaustin.com
`
`
`Matthew Borden
`(CA Bar No. 214323)
`Marissa R. Benavides
`(NY Bar No. 5796891)
`Kory James DeClark
`(CA Bar No. 310571)
`BraunHagey & Borden LLP
`747 Front Street, 4th Floor
`Tel: 415-599-0210
`Fax: 415-276-1808
`borden@braunhagey.com
`benavides@braunhagey.com
`declark@braunhagey.com
`
`
`Attorneys for Plaintiffs-Appellees
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`
`
`
`
`Jonathan F. Mitchell
`Texas Bar No. 24075463
`Mitchell Law PLLC
`111 Congress Avenue, Suite 400
`Austin, Texas 78701
`(512) 686-3940 (phone)
`(512) 686-3941 (fax)
`jonathan@mitchell.law
`
`Dwain K. Rogers
`Texas Bar No. 00788311
`County Attorney
`
`Matthew L. Rienstra
`Texas Bar No. 16908020
`First Assistant County Attorney
`Llano County Attorney’s Office
`Llano County Courthouse
`801 Ford Street
`Llano, Texas 78643
`(325) 247-7733
`dwain.rogers@co.llano.tx.us
`matt.rienstra@co.llano.tx.us
`
`Attorneys for Defendants-Appellants
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`PLAINTIFFS-APPELLEES’ RESPONSE TO PETITION FOR REHEARING EN BANC
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`Case: 23-50224 Document: 185 Page: 3 Date Filed: 07/01/2024
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`CERTIFICATE OF INTERESTED PERSONS
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`The undersigned counsel of record certifies that the following listed persons
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`and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
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`the outcome of this case. These representations are made in order that the judges of
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`this court may evaluate possible disqualification or recusal.
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`Plaintiffs-Appellees
`Leila Green Little
`Jeanne Puryear
`Kathy Kennedy
`Rebecca Jones
`Richard Day
`Cynthia Waring
`Diane Moster
`
`Plaintiffs-Appellants’ Counsel
`Katherine P. Chiarello
`Ryan A. Botkin
`María Amelia Calaf
`Botkin Chiarello Calaf PLLC
`
`Matthew Borden
`Marissa R. Benavides
`Kory James DeClark
`BraunHagey & Borden LLP
`
`Defendants-Appellants
`Llano County
`Ron Cunningham
`Jerry Don Moss
`Peter Jones
`Mike Sandoval
`Linda Raschke
`Amber Milum
`Bonnie Wallace
`Rochelle Wells
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`Case: 23-50224 Document: 185 Page: 4 Date Filed: 07/01/2024
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`Rhonda Schneider
`Gay Baskin
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`Defendants-Appellants’ Counsel
`Jonathan F. Mitchell
`Mitchell Law PLLC
`
`Dwain K. Rogers
`Matthew L. Rienstra
`Llano County Attorney’s Office
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`PLAINTIFFS-APPELLEES’ RESPONSE TO PETITION FOR REHEARING EN BANC
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`Case: 23-50224 Document: 185 Page: 5 Date Filed: 07/01/2024
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`RULE 35(B) STATEMENT
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`Llano County officials circulated a list of books that they labeled as
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`“pornographic filth” and began removing them from the public libraries. The
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`District Court found that Defendants were removing books because they disliked
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`the ideas expressed therein. Applying this Court’s decision in Campbell v. St.
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`Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995), the panel affirmed the
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`District Court’s finding that Defendants’ conduct likely violated the First
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`Amendment as to eight books, noting that this was a “relatively straightforward
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`application” of Campbell. PO18.1
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`Defendants offer three bases for seeking rehearing en banc, none of which
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`satisfies Rule 35.
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`1. Defendants assert that the panel opinion “split three different ways”
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`over how librarians may “weed” library books, and they discuss the MUSTIE
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`standard that some libraries use to guide their decisions about when to remove
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`books that are falling apart, become superseded, are misleading, or that nobody
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`wants to read. Pet.ii-iii. But this case does not challenge or otherwise implicate that
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`standard. The only relevance of weeding and weeding standards to this case is that
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`1 All citations to “PO##” are to the panel opinion at ECF No. 164. All citations to
`“Pet.##” are to Defendants-Appellants’ Petition for Rehearing En Banc at ECF No.
`174-1.
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`Case: 23-50224 Document: 185 Page: 6 Date Filed: 07/01/2024
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`the District Court found them to be a pretext that Defendants used for censorship.
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`ROA.3524-25.
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`Nor did the panel “split three different ways” on the legal principle in play.
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`Judges Wiener and Southwick agreed that the Campbell standard—which has been
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`in place for thirty years—applies. While they disagreed about Campbell’s
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`application to eight books, they issued a single, unified opinion that adopted Judge
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`Southwick’s narrower view. No court reading the opinion could be confused about
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`the decades-old rule the panel applied to the facts here, and no librarian could be
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`confused about what the rule means.2 Moreover, Defendants fail to explain why
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`they think Campbell is wrong, or what standard should apply where, as here, a
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`district court finds that government officials have removed books, not as part of the
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`2 On June 27, 2024, several states, mostly from outside the Fifth Circuit, submitted
`an amicus brief arguing that the full Court should take this case and declare that
`library removal decisions are government speech—a position Defendants did not
`raise on appeal and do not defend, or even mention, in their petition for rehearing
`en banc. The states’ argument for such a radical departure from long established
`Fifth Circuit law is unsupported. Indeed, it contradicts Defendants’ own library
`policy, which states that “[t]he Library does not promulgate particular beliefs or
`views, nor is the selection of any given media equivalent to endorsement of the
`viewpoint of the author expressed therein.” ROA.1496. It is also untimely. Early in
`2023, Texas—which authored the states’ amicus brief—sought to intervene in this
`case on a government interest theory. ROA.602-607. It later withdrew its request.
`ROA.739-740. Now, after this issue has been decided by both the District Court
`and a panel of this Court, Texas seeks to reassert this argument, which it elected
`not to present to the District Court and the panel.
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`Case: 23-50224 Document: 185 Page: 7 Date Filed: 07/01/2024
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`standard weeding process, but simply because they do not want library patrons to
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`have access to ideas with which they personally disagree.
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`2.
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`After Plaintiffs moved for a preliminary injunction, Defendants’
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`lawyer “donated” copies of the books that Defendants belatedly argued were in
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`poor condition or unwanted, and Defendants kept the new copies off the shelves in
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`an undisclosed location without listing them in the catalog. Defendants’
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`argument—that whether this conduct mooted Plaintiffs’ claim constitutes an issue
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`of exceptional importance, Pet.3-4—fails, among other reasons, because there is no
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`evidence that such a tactic has ever been deployed, or would be used, in any other
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`case.
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`Although framed in terms of “injury,” Defendants’ argument is really one of
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`voluntary cessation and whether the District Court abused its discretion in
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`requiring Defendants to re-shelve the books—neither of which meets the standard
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`of Rule 35. It is rudimentary that, absent a showing of an absolute and permanent
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`cure, a party cannot moot the need for injunctive relief through voluntary
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`cessation, and the U.S. Supreme Court has repeatedly held that any First
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`Amendment injury, no matter how small and how briefly sustained, is irreparable
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`for purposes of a preliminary injunction. Nothing in the panel’s decision affronts
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`that settled law.
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`Case: 23-50224 Document: 185 Page: 8 Date Filed: 07/01/2024
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`3.
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`Defendants argue that the panel misstated certain nondispositive facts.
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`Pet.14-15. Defendants do not explain how such alleged errors constitute a matter of
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`exceptional importance or are capable of repetition. Instead, they claim that Judges
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`Wiener and Southwick cannot be trusted as jurists, and the full Court must step in
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`for them. Defendants are incorrect, and nothing in Rule 35 would require rehearing
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`en banc on this ground.
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`For each of these reasons, Defendants’ petition should be denied.
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`Case: 23-50224 Document: 185 Page: 9 Date Filed: 07/01/2024
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`TABLE OF CONTENTS
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`CERTIFICATE OF INTERESTED PERSONS ........................................................ i
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`RULE 35(B) STATEMENT .................................................................................... iii
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`TABLE OF CONTENTS ........................................................................................ vii
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`TABLE OF AUTHORITIES ................................................................................. viii
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`INTRODUCTION .................................................................................................... 1
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`STATEMENT OF COURSE OF PROCEEDINGS ................................................. 1
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`STATEMENT OF FACTS ....................................................................................... 4
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`ARGUMENT ............................................................................................................ 7
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`I.
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`THIS CASE IS A STRAIGHTFORWARD APPLICATION OF
`THIS COURT’S 30-YEAR-OLD PRECEDENT .......................................... 7
`II. DEFENDANTS’ “INJURY” ARGUMENTS ARE LIMITED
`TO THE FACTS OF THIS CASE AND INVOLVE BASIC
`PRINCIPLES OF VOLUNTARY CESSATION AND A
`COURT’S DISCRETION TO ENJOIN
`UNCONSTITUTIONAL CONDUCT ......................................................... 11
`III. ALLEGED FACTUAL ERRORS IN A PANEL DECISION
`ARE NOT GROUNDS FOR REHEARING EN BANC ............................. 15
`CONCLUSION ....................................................................................................... 17
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`CERTIFICATE OF COMPLIANCE ...................................................................... 19
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`CERTIFICATE OF SERVICE ............................................................................... 20
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`Case: 23-50224 Document: 185 Page: 10 Date Filed: 07/01/2024
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
`Already, LLC v. Nike, Inc.,
`568 U.S. 85 (2013) ................................................................................................13
`Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico,
`457 U.S. 853 (1982) .............................................................................................3,8
`Campbell v. St. Tammany Parish School Board,
`64 F.3d 184 (5th Cir. 1995) .......................................................................... passim
`Elrod v. Burns,
`427 U.S. 347 (1976) ..............................................................................................13
`
`Knox v. Serv. Emps. Int’l Union, Loc. 1000,
`567 U.S. 298 (2012) ..............................................................................................14
`Spell v. Edwards,
`962 F.3d 175 (5th Cir. 2020) ................................................................................13
`Stanley v. Georgia,
`394 U.S. 557 (1969) ................................................................................................ 3
`Uzuegbunam v. Preczewski,
`141 S. Ct. 792 (2021) ............................................................................................12
`Rules
`Fed. R. App. P. 27(d)(2)(A) .....................................................................................19
`Fed. R. App. P. 32(a)(5) ...........................................................................................19
`Fed. R. App. P. 32(a)(6) ...........................................................................................19
`Fed. R. App. P. 32(f) ................................................................................................19
`Fed. R. App. P. 35(a) ...............................................................................................11
`Fed. R. App. P. 40(a)(3) ...........................................................................................16
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`PLAINTIFFS-APPELLEES’ RESPONSE TO PETITION FOR REHEARING EN BANC
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`Case: 23-50224 Document: 185 Page: 11 Date Filed: 07/01/2024
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`INTRODUCTION
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`Defendants claim that the panel’s ruling is an error of such significance that
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`the full Court must now hear the case. All three of its arguments fail. First, the
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`panel applied longstanding precedent that government officials cannot remove
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`public library books if their aim is to deny the public access to ideas they
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`personally do not like. Second, the panel properly found that Plaintiffs established
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`an irreparable injury where, as Defendants concede, they had suffered a First
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`Amendment injury. Third, Defendants’ allegations of factual errors in the panel
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`opinion are false, and even if true, they would not merit rehearing en banc.
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`STATEMENT OF COURSE OF PROCEEDINGS
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`District Court. On March 30, 2023, the District Court issued a 26-page
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`order denying Defendants’ motion to dismiss and partially granting Plaintiffs’
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`motion for a preliminary injunction. ROA.3507-32. Applying Campbell, it held
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`that Plaintiffs’ “First Amendment right to receive information” prohibited
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`Defendants from removing books from the library shelves “simply because they
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`dislike the ideas contained in [them].” ROA.3519 (quoting Campbell, 64 F.3d at
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`189) (internal quotations omitted). The “key inquiry,” the court held, was “whether
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`the governments’ ‘substantial motivation’ was to deny library users access to ideas
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`with which [it] disagreed.” ROA.3520 (quoting Campbell, 64 F.3d at 190). The
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`court then found—based on extensive briefing, 65 declarations, 120 exhibits, and
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`two days of live testimony—that Defendants harbored precisely that motivation
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`when it removed the 17 books at issue in this litigation. ROA.3526.
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`The District Court also held that Defendants could not moot the lawsuit by
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`having their lawyer donate copies of the banned books to the library that would be
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`kept off the shelves and out of the catalog so that nobody would know that they are
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`there (what Defendants call an “in-house checkout system”). This gambit was
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`“calculated to promote his clients’ litigation position” and was “precisely the type
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`of posturing the voluntary cessation exception [to mootness] is meant to prevent.”
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`ROA.3518. (“Making books ‘available’ in a back room, only upon specific request
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`by a patron who has no way of knowing that the books even exist, is hardly a
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`‘formally announced change[] to official governmental policy’ deserving less
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`scrutiny.’”)
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`The court ordered Defendants to return the 17 books to the library shelves
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`and update its catalogs to reflect their availability. ROA.3532. It also enjoined
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`Defendants from removing additional books during the litigation. Id.
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`Court of Appeals. On June 6, 2024, a panel of this Court affirmed the
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`District Court’s application of Campbell and upheld the injunction with respect to
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`eight of the 17 books at issue. PO27.
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`Writing for the majority, Judge Wiener explained that the question on appeal
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`was “answered … in 1995 in Campbell, a directly applicable decision that
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`Case: 23-50224 Document: 185 Page: 13 Date Filed: 07/01/2024
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`circumscribes the boundaries of [the Court’s] analysis.” Id. at 8. Under Campbell,
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`the majority held, “the ‘key inquiry in a book removal case’ is the remover’s
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`‘substantial motivation in arriving at the removal decision.’” Id. at 10 (quoting
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`Campbell, 64 F.3d at 190). “[W]hen an official who removes a book is
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`‘substantially motivated’ by the desire to deny ‘access to ideas with which [she]
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`disagree[s],” she violates library patrons’ First Amendment “right to receive
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`information and ideas.” PO11-12 (quoting Stanley v. Georgia, 394 U.S. 557, 564
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`(1969), and Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457
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`U.S. 853, 871 (1982); citing Campbell, 64 F.3d at 191).
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`Writing separately, Judge Southwick praised Judge Wiener’s “thorough and
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`nuanced” opinion and expressly “concur[red] in [its] explication of the law.” PO28.
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`Campbell is the “standard … to apply here,” Judge Southwick held, and under
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`Campbell government officials may not remove books from library shelves
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`“simply because they dislike the ideas contained in [them.]” PO28 (quoting
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`Campbell, 64 F.3d at 188).
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`The only issue on which Judge Wiener and Judge Southwick disagreed was
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`Campbell’s application to nine books included in the District Court’s injunction.
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`Judge Southwick found that the “butt and fart” books could be removed because
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`they do not express a viewpoint “in the sense required by the caselaw,” and that,
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`“at this stage of the case,” the factual record did not sufficiently demonstrate that
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`two other books—In the Night Kitchen and It’s Perfectly Normal—were removed
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`to prevent library patrons from accessing their viewpoints. PO28. Judge Wiener
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`believed that these books expressed viewpoints and were removed for reasons that
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`fell under Campbell, but he explained that, because Judges Southwick and Duncan
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`did not agree on that limited question, the panel’s holding “d[id] not require the
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`return of those books.” Id. at 21 n.12.
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`The panel therefore affirmed the District Court’s application of Campbell
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`but narrowed the scope of the injunction to include only eight of the 17 books from
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`the District Court’s preliminary injunction. Id. at 27. It ordered Defendants to
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`return those eight books to the shelves and to update the library catalogs
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`accordingly. It also ordered Defendants to notify Plaintiffs before removing or
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`concealing any other books, and to provide the name of the person responsible for
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`the removal and the reason. Id.
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`Judge Duncan dissented on the grounds that a government’s decision to
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`removal library books is government speech not subject to First Amendment
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`limitations, id. at 31-76, an argument Defendants did not make on appeal, see
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`Plaintiffs-Appellees’ Brief (ECF No. 99) at 38 n.18.
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`STATEMENT OF FACTS
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`Defendants’ Targeted Book Removal. Plaintiffs are Llano County library
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`patrons. Defendants are Llano County Judge Ron Cunningham, County
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`Case: 23-50224 Document: 185 Page: 15 Date Filed: 07/01/2024
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`Commissioners Jerry Don Moss et al., librarian Amber Milum and members of the
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`re-constituted library board who began removing certain books from the public
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`library system in the summer of 2021. Seven of the books they removed were on a
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`list of 57 titles curated by Defendant Wallace for removal purposes that
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`Defendants internally called “pornographic filth.” ROA.350-51. These books
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`included They Called Themselves the KKK and other works that had nothing to
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`with pornography. ROA.357.
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`Within four months, Defendants had purged 17 books from the library (the
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`“Banned Books”). These included National Book Award nominee Caste: The
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`Origins of Our Discontents, by Isabel Wilkerson, and Being Jazz: My Life as a
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`(Transgender) Teen, by Jazz Jennings. ROA.3510 (citing Defendants’
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`contemporaneous emails and hearing testimony). None of the books met the
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`library’s standard for removing a book from a library collection.3 ROA.1660-65,
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`3891:17-21, 3912:14-19, 3913:20-25, 4204:2-5. Some had been purchased by
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`Defendant Milum herself shortly before Defendants’ complaints began.
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`ROA.3929-30, 3934.
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`In the evidentiary hearing below, Defendants offered no contemporaneous
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`evidence to show that they had removed the Banned Books for reasons of library
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`3 The Llano library officially follows the CREW system for managing its
`collection, in which librarians remove books only when the books satisfy at least
`two MUSTIE criteria. ROA.1543-1610, 3883:12-15, 3888:6-15.
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`maintenance. The District Court found that Defendants’ argument that they had
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`“weeded” the books was not credible. See ROA.3526 (“Plaintiffs have offered
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`sufficient evidence to suggest this post-hoc justification [of weeding] is
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`pretextual.”). It found, instead, that “the reason that [the books] were selected to be
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`weeded and reviewed to be weeded, as opposed to other books, w[as] because Ms.
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`Wallace had them on her list.”4 ROA.3527 (quoting Milum testimony at
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`ROA.3952-53).
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`In December 2021, the Llano County Commissioners Court, led by
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`Defendants, voted to approve three days of library closures to check the library for
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`“inappropriate” books. ROA.3510-11. Defendant Milum testified to the District
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`Court that during these days the staff mainly focused on pulling the books
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`Defendants personally identified as inappropriate. Id.
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`Plaintiffs Seek Relief. In April 2022, Plaintiffs filed this action alleging that
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`Defendants, acting under color of state law, violated their First Amendment rights
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`by removing the Banned Books from the Llano library simply because those books
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`express views and contain content that do not align with Defendants’ personal
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`4 Defendants submitted a new declaration on appeal. See ECF No. 14-4
`(Declaration of Amber Milum); 174-1 at 1. This declaration was not before the
`District Court when it made its factual determinations, nor was it relied on by any
`member of the panel.
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`Case: 23-50224 Document: 185 Page: 17 Date Filed: 07/01/2024
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`views. ROA.65. Plaintiffs moved for a preliminary injunction to restore the
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`Banned Books to the Llano library while their claims are tried.
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`Defendants’ Post-Filing Actions. Three months after Plaintiffs requested
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`injunctive relief to restore the Banned Books, Defendants’ lawyer donated copies
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`of the Banned Books to be placed in a backroom storage area of the Llano library.
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`These books “were not donated by a neutral benefactor with the intent of making
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`them available to library patrons.” ROA.3518. Rather, “Defendants’ Counsel,
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`Jonathan Mitchell, provided these books ostensibly anonymously.” Id. Defendants
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`kept the newly donated Banned Books off the library shelves and did not list them
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`in the library catalog. Id.
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`ARGUMENT
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`I.
`
`THIS CASE IS A STRAIGHTFORWARD APPLICATION OF THIS
`COURT’S 30-YEAR-OLD PRECEDENT
`Defendants ask this Court to rehear this appeal en banc because, they say,
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`the rule the panel adopted will “leave[] every public librarian in a state of
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`confusion over whether and when they can be sued for weeding a library book.”
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`Pet.10. But this case has nothing to do with “weeding”—a process by which
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`librarians remove books from a library for well-defined, viewpoint-neutral reasons,
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`such as those provided under the MUSTIE standard. As the District Court found,
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`Defendants’ claim that they were merely weeding these books was “post-hoc” and
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`“pretextual,” not supported by any documentary proof, and inconsistent with
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`Case: 23-50224 Document: 185 Page: 18 Date Filed: 07/01/2024
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`Defendants’ own testimony. See, e.g., ROA.3523-25, 3526-28. Moreover,
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`librarians have been weeding books under the Campbell standard—which is
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`narrowly drawn to prohibit government censorship—for three decades without
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`incident. Each of the four arguments Defendants offer, Pet.10-13, misconstrues the
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`panel’s opinion and is meritless.
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`First, Defendants claim that Judges Wiener and Southwick’s opinions
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`“adopt different formulations of the test for determining whether a public librarian
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`violates the First Amendment by weeding a book.” Pet.10. Not so.
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`Judge Wiener, writing for the panel majority, did not announce a new rule in
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`this case. He simply made a “relatively straightforward application of Campbell.”
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`PO18. Campbell held that officials “exercised their discretion [to remove a book]
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`in violation of the Constitution” where “the decisive factor in the removal
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`decision” was the officials’ desire “to deny … access to ideas with which [they]
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`disagreed.” Campbell, 64 F.3d at 188 (quoting Pico at 457 U.S. at 872). The panel
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`here held the same: an official violates the Constitution when her decision to
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`remove a book “is ‘substantially motivated’ by the desire to deny ‘access to ideas
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`with which [she] disagree[s].’” PO12 (quoting Pico, 457 U.S. at 871; citing
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`Campbell, 64 F.3d at 191).
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`Defendants try to distinguish Judge Wiener’s reasoning from Judge
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`Southwick’s, but Judge Southwick agreed that Campbell is “the [standard] to apply
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`Case: 23-50224 Document: 185 Page: 19 Date Filed: 07/01/2024
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`here” and expressly “concur[red] in [Judge Wiener’s] explication” of it, which he
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`called “accurate[].” Id. at 28. Defendants’ claim that Judge Southwick adopted a
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`different standard because he quoted a passage from Campbell that does not
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`contain the term “substantially motivated,” Pet.10-11, is impossible to square with
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`his concurrence.
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`Second, Defendants claim that the panel opinion is unclear because it
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`“simultaneously reject[s] and vindicate[s] the district court’s legal standard.”
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`Pet.12. But Defendants conflate two separate arguments. The District Court found
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`that Defendants violated the First Amendment both under Campbell (which
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`prohibits viewpoint discrimination in removal decisions) and alternatively under
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`traditional forum analysis (content discrimination). PO7. The panel agreed with the
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`District Court that Campbell applies but rejected its forum analysis. See PO12
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`(“We agree with Defendants that public forum principles are ‘out of place in the
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`context of this case.’”). No reader could possibly be confused by these consistent
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`findings.5
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`5 Defendants also claim that they do not know what it means to be “substantially
`motivated” by a desire to “deny access” to a book. Pet.12. They ask: “Can a
`librarian—who knows full well that her decision to weed a book will always result
`in a denial of access to future library patrons—ever deny that she is ‘substantially
`motivated’ by what she knows will be the inevitable result of her actions?” Id. The
`answer is: “Yes, she can.” The difference between taking an action one recognizes
`will have a certain result and taking it because it will have that result is the
`difference between self-defense and murder, between disparate treatment and
`disparate impact, and between a war crime and collateral damage. These are
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`Case: 23-50224 Document: 185 Page: 20 Date Filed: 07/01/2024
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`Third, Defendants claim that Judges Wiener and Southwick “could not agree
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`on how to apply their standards to the 17 disputed books.” Pet.12-13. But the panel
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`opinion was unified. While Judge Wiener noted that he believed all 17 books fell
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`within Campbell’s scope, PO21 n.12, the panel’s opinion and injunction—to which
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`Judges Wiener and Southwick both subscribed—adopted Judge Southwick’s
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`narrower application. If en banc rehearing were appropriate any time two judges on
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`a panel would have applied a rule differently, the Circuit’s en banc docket would
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`have a decades-long waitlist.
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`Fourth, Defendants assert that it is unclear “which portions of the lead
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`opinion were joined by both Judge Wiener and Judge Southwick.” Pet.13. As
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`discussed above, Judge Wiener and Judge Southwick expressly agreed that the
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`Campbell standard applies. PO28. They disagreed, based on the factual record,
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`about whether that standard should apply to nine of the 17 books at issue. Id. at 21
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`n.12, 28-29. But because they disagreed, the panel opinion adopted Judge
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`Southwick’s narrower application. Id. at 21 n.12 (“[M]y colleagues disagree,
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`however, so our holding does not require the return of those books.”); see also id.
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`at 27, 28-29.
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`concepts everyone understands, and Defendants have provided no reason to think
`librarians are any different.
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`Case: 23-50224 Document: 185 Page: 21 Date Filed: 07/01/2024
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`II. DEFENDANTS’ “INJURY” ARGUMENTS ARE LIMITED TO THE
`FACTS OF THIS CASE AND INVOLVE BASIC PRINCIPLES OF
`VOLUNTARY CESSATION AND A COURT’S DISCRETION TO
`ENJOIN UNCONSTITUTIONAL CONDUCT
`Defendants’ second basis for seeking en banc review is their claim that they
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`mooted Plaintiffs’ injury by having their lawyer donate the Banned Books to the
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`library, where they would not be publicly displayed or listed in the catalog. Pet.3-4.
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`But this issue is unique to this case and is not one of exceptional importance or
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`necessary to maintain uniformity within this Circuit. Moreover, questions of
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`voluntary cessation, mootness, or whether an injunction is an appropriate
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`remedy—all which Defendants attempt to recast as “injury”—are commonplace
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`and do not merit en banc consideration. See Fed. R. App. P. 35(a). Defendants’
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`arguments for en banc review fail for at least three reasons.
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`First, Defendants do not meet the requirements of Rule 35 because their real
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`argument is that the District Court abused its discretion by issuing an injunction
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`when they had mooted the need for one by acquiring and then hiding the Banned
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`Books. Leaving aside that they are incorrect, this argument is not an issue of
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`exceptional importance.
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`Defendants’ effort to frame this argument in terms of injury (which also is
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`not an issue of exceptional importance) separately fails. Defendants concede that
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`the panel properly recognized that Plaintiffs suffered an injury sufficient for Article
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`III standing. See Pet.3 (purchasing, then hiding the Banned Books “does not moot
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`Case: 23-50224 Document: 185 Page: 22 Date Filed: 07/01/2024
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`the plaintiffs’ First Amendment claims, as the plaintiffs continue to suffer Article
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`III injury from the absence of the 17 disputed books from the library shelves and
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`catalog”). At the same time, Defendants argue that Plaintiffs’ First Amendment
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`claims “cannot get of