Case: 23-50224 Document: 203-1 Page: 1 Date Filed: 08/02/2024
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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; 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’ SUPPLEMENTAL 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: 203-1 Page: 2 Date Filed: 08/02/2024
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`Certificate of Interested Persons
`Counsel of record certifies that the following persons and entities as described
`in the fourth sentence of Fifth Circuit Rule 28.2.1 have an interest in the outcome
`of this case. These representations are made in order that the judges of this Court
`may evaluate possible disqualification or recusal.
`
`Plaintiffs’ Counsel
`Ellen V. Leonida
`Matthew Borden
`J. Noah Hagey
`Max Bernstein
`Ellis E. Herington
`Marissa Benavides
`BraunHagey & Borden LLP
`
`Ryan A. Botkin
`Katherine P. Chiarello
`María Amelia Calaf
`Kayna Stavast Levy
`Botkin Chiarello Calaf
`
`Defendants’ Counsel
`Jonathan F. Mitchell
`Mitchell Law PLLC
`
`Dwain K. Rogers
`Matthew L. Rienstra
`Llano County Attorney’s Office
`
`
`
`Plaintiffs
`• Leila Green Little
`• Jeanne Puryear
`• Kathy Kennedy
`• Rebecca Jones
`• Richard Day
`• Cynthia Waring
`• Diane Moster
`
`
`
`Defendants
`• Llano County,
`• Ron Cunningham
`• Jerry Don Moss
`• Peter Jones
`• Mike Sandoval
`• Linda Raschke
`• Amber Milum
`• Bonnie Wallace
`• Rochelle Wells
`• Rhonda Schneider
`• Gay Baskin
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` /s/ Jonathan F. Mitchell
`Jonathan F. Mitchell
`Counsel for Defendants-Appellants
`i
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`

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`Case: 23-50224 Document: 203-1 Page: 3 Date Filed: 08/02/2024
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`Table Of Contents
`Certificate of interested persons ............................................................................... i
`Table of contents ..................................................................................................... ii
`Table of authorities ................................................................................................. iii
`Statement of the case ............................................................................................... 1
`I. Facts and evidence ......................................................................................... 1
`A. The facts stated in the appellants’ panel-stage brief ................................. 1
`B. The facts as stated in the appellees’ panel-stage brief ............................... 3
`C. The facts as stated in the panel opinion .................................................... 3
`II. The panel opinion’s rationale ....................................................................... 11
`Summary of argument ............................................................................................ 14
`Argument ............................................................................................................... 16
`I. The en banc court should overrule Campbell, limit Pico to its facts, and
`hold that a public library’s acquisition and weeding decisions are
`government speech immune from First Amendment scrutiny .................... 16
`II. A public library cannot violate the plaintiffs’ First Amendment right
`to access and receive information when each of the 17 disputed books
`remained available for the plaintiffs to read and check out through
`Llano Library’s in-house checkout system ................................................... 26
`III. The district court’s remedy is overbroad ..................................................... 29
`IV. The en banc court should reaffirm that a preliminary injunction
`cannot issue unless the movant makes a “clear showing” on all four
`prongs of the preliminary-injunction inquiry ............................................... 30
`Conclusion ............................................................................................................. 32
`Certificate of service .............................................................................................. 33
`Certificate of compliance ....................................................................................... 34
`Certificate of electronic compliance ....................................................................... 35
`Appendix ....................................................................................................................
`
`
`
`ii
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`Case: 23-50224 Document: 203-1 Page: 4 Date Filed: 08/02/2024
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`Table of Authorities
`
`Cases
`Board of Education v. Pico, 457 U.S. 853 (1982) ..................... 14, 15, 19, 20, 21, 24, 25
`Campbell v. St. Tammany Parish School Board,
`64 F.3d 184 (5th Cir. 1995) ................................................ 12, 14, 15, 19, 20, 22, 24
`Hutto v. Davis, 454 U.S. 370 (1982) (per curiam) ................................................... 24
`Marks v. United States, 430 U.S. 188 (1977) ....................................................... 15, 24
`Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam) ........................................ 31
`Mississippi Power & Light Co. v. United Gas Pipe Line Co.,
`760 F.2d 618 (5th Cir. 1985) ................................................................................ 31
`Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024) .............................. 14, 17, 18, 19, 27
`Murthy v. Missouri, 144 S. Ct. 1972 (2024) ............................................................. 31
`Planned Parenthood Ass’n of Hidalgo County Texas, Inc. v. Suehs,
`692 F.3d 343 (5th Cir. 2012) ............................................................................... 31
`Planned Parenthood of Houston and Southeast Texas v. Sanchez,
`403 F.3d 324 (5th Cir. 2005) ............................................................................... 31
`Texas Medical Providers Performing Abortion Services v. Lakey,
`667 F.3d 570 (5th Cir. 2012) ............................................................................... 31
`Trump v. Int’l Refugee Assistance Project, 582 U.S. 571 (2017) .................................. 27
`United States v. American Library Ass’n, Inc., 539 U.S. 194 (2003) ......................... 17
`United States v. Students Challenging Regulatory Agency Procedures
`(SCRAP), 412 U.S. 669 (1973) ............................................................................ 28
`Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) ....................................... 20
`Voting for America, Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013) ............................ 16, 31
`Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) ............................... 31
`Rules
`Fed. R. Civ. P. 52(a)(2) ........................................................................................... 10
`
`
`
`
`iii
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`Statement Of The Case
`I. Facts And Evidence
`A. The Facts Stated In The Appellants’ Panel-Stage Brief
`The appellants’ panel-stage brief accurately states the facts of this case.
`
`See Appellants’ Br. at 5–15. But there are two sentences that require clarifica-
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`tion.
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`1. On page 11, we wrote that “47 of the books on Ms. Wallace’s spread-
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`sheet were on the shelves at Llano Library.” Appellants’ Br. at 11. Those 47
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`books were actually on the shelves of three different libraries within the Lla-
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`no County library system: Llano Library, Kingsland Library, and Lakeshore
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`Library. Most of those 47 books were housed at Llano Library, but not all of
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`them were. This sentence in our opening brief should have said: “47 of the
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`books on Ms. Wallace’s spreadsheet were on the shelves at Llano County’s
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`libraries,” rather than “47 of the books on Ms. Wallace’s spreadsheet were on
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`the shelves at Llano Library.”
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`A spreadsheet that contains the books on Ms. Wallace’s list, which we
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`have attached to this brief and which appears on page 357 of the record, indi-
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`cates the library where each of the books was housed. “LC” stands for Llano
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`Library; “KB” for Kingsland, and “LB” for Lakeshore. “O” means Over-
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`drive, which is an online collection of books. ROA.357.
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`2. Page 12 of our opening panel-stage brief contains the following sen-
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`tence:
`
`Ms. Milum concluded that only 6 of the 47 books on Ms. Wal-
`lace’s spreadsheet should be weeded according to the MUSTIE
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`1
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`criteria: Freakboy; Shine; Caste: The Origins of our Discontents;
`Gabi, a Girl in Pieces; and They Called Themselves the K.K.K.: The
`Birth of an American Terrorist Group. ROA.675. Ms. Milum de-
`termined that the remaining 41 books did not meet the criteria
`for weeding and she returned those 41 books to the shelves.
`
`Appellants’ Br. at 12. But there is an additional wrinkle that needs to be ex-
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`plained. The library system had two copies of Being Jazz: one at Llano Li-
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`brary and one at Kingsland Library. Ms. Milum weeded the copy at Llano Li-
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`brary because it had not been checked out in more than four years.1 But she
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`retained the one at Kingsland, where it had been checked out more frequent-
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`ly.2 So whether Ms. Milum weeded six of the 47 titles or seven of the 47 titles
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`depends on whether Being Jazz should be counted as a weeded book. Titles
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`that were held in more than location were counted only once in the denomi-
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`nator of 47, so it is more precise to say that Ms. Milum weeded 6 ½ of the 47
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`titles on Ms. Wallace’s spreadsheet.
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`If we had counted by actual book copies rather than by titles, there would
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`be 52 physical items in the denominator (counting twice for Being Jazz, New
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`Kid, and I’ll Give You the Sun, and three times for Me and Earl and the Dying
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`Girl). ROA.357. By that count, Ms. Milum would have weeded 7 of the 52
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`physical items on Ms. Wallace’s spreadsheet. However the precise ratio is
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`1. ROA.346 (showing last checkout was July 19, 2017).
`2. ROA.3995 (“Q. Why did you decide to weed Being Jazz: My Life As A
`Transgender Teen? A: It was not getting checked out at the Llano library,
`but it was popular at Kingsland, so we had an extra copy. Q. Did you
`weed the book at Kingsland where it was popular? A. No.”).
`
`2
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`

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`calculated, the vast majority of the materials on Ms. Wallace’s list were not
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`weeded and were returned to the library shelves after Ms. Milum’s review.
`B. The Facts As Stated In The Appellees’ Panel-Stage Brief
`Our panel-stage reply brief explains the many false and misleading factual
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`assertions that appear throughout the plaintiffs’ panel-stage brief. See Appel-
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`lants’ Reply Br. at 1–4, 7–15. Some of these falsehoods found their way into
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`the panel opinion, such as the claim that Under The Moon: A Catwoman Tale
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`was listed on Bonnie Wallace’s spreadsheet. Compare Appellees’ Br. at 8 with
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`Lead Panel Opinion, ECF No. 164, at 4. We urge the en banc court to care-
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`fully check the plaintiffs’ factual assertions against the primary sources be-
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`fore relying on any factual claim that that plaintiffs assert in their briefing or
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`at oral argument.
`C. The Facts As Stated In The Panel Opinion
`The panel opinion contains many misstatements of the facts, and we are
`
`flagging these so the en banc court will avoid these errors.
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`1. The panel opinion says that all 17 of the disputed books are “on the
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`Wallace List.” See Lead Panel Opinion, ECF No. 164, at 4 (“By the end of
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`2021, seventeen books—all on the Wallace List—had been removed from the
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`Llano County library system entirely.”); id. at 4 (listing titles of those 17
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`books); id. at 18 (“Each of the books Milum removed were on the Wallace
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`list.”); id. at 22 (“Milum decided to weed only those books on the Wallace
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`list”). That is untrue, as only 7 of the 17 disputed books appear on the Wal-
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`lace List. ROA.357; see also App.
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`3
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`2. The panel opinion says that “Defendants’ attorney donated copies of
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`the seventeen books back to the library after the inception of this litigation.”
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`Lead Panel Opinion, ECF No. 164, at 5. That is untrue; the defendants’ at-
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`torney donated only 10 of those 17 books, as Amber Milum had already added
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`the seven “butt” and “fart” books to the in-house checkout system before re-
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`ceiving the donation of the remaining disputed books. ROA.2293-2294 (¶¶ 4–
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`6).
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`3. The panel opinion says that “no other books were weeded” during
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`the time period in which Milum weeded the 17 disputed books. See Lead
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`Panel Opinion, ECF No. 164, at 18. It also says that Milum “pulled no other
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`books for review during that time period.” Id. at 4; see also id. at 22 (“Milum
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`decided to weed only those books on the Wallace list.”). Those statements
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`are untrue. Hundreds of other books were pulled for review and weeded be-
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`tween August 5, 2021 (the date on which the first of the 17 disputed books
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`were weeded), and November 18, 2021 (the date on which Milum weeded
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`the last of the 17 disputed books). ROA.1660-1665. Exhibit 52 from the pre-
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`liminary-injunction hearing shows that the Llano County library system
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`weeded no fewer than 212 books, DVDs, and other items between August 5,
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`2021, and November 18, 2021—in addition to the 17 disputed books that the
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`plaintiffs are suing over. ROA.1660-1665.
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`4. The panel opinion says that by the end of 2021, the 17 disputed
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`books “had been removed from the Llano County library system entirely.”
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`Lead Panel Opinion, ECF No. 164, at 4. That statement is untrue. Being
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`4
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`Jazz: My Life as a (Transgender) Teen remained in the Llano County library
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`system and catalog because Milum did not weed the copy held at Kingsland
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`library, where it was being checked out sufficiently to warrant retention.
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`ROA.2503-2504 (¶ 29); ROA.3995.
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`5. The panel opinion says that “today”—meaning June 6, 2024, the
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`date on which the panel opinion issued—the 17 disputed books “are not on
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`shelves nor in the catalog system.” Lead Panel Opinion, ECF No. 164, at 5.
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`That statement is untrue because the defendants have been complying with
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`Judge Pitman’s preliminary injunction since March 31, 2023, which ordered
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`the 17 disputed books returned to the shelves and restored to the catalog.
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`ROA.3531-3532. The defendants asked for a stay of the preliminary injunc-
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`tion pending appeal, but the Court carried that motion with the case and the
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`panel denied the motion as moot. See Docket Entry No. 58; Lead Panel Opin-
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`ion, ECF No. 164, at 27. The preliminary injunction remains in effect and the
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`defendants are in full compliance with it. The en banc court should also de-
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`scribe the presence of the 17 disputed books in the in-house check-out sys-
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`tem in the past tense rather than the present tense, as those 17 books were
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`returned to the shelves over a year ago and are not currently part of Llano Li-
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`brary’s in-house checkout system. See Lead Panel Opinion, ECF No. 164, at
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`5.
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`6. The panel opinion says that all of “the seventeen books at issue here
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`were removed after constituents complained that they were ‘pornographic
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`filth’ inappropriate for children.” Lead Panel Opinion, ECF No. 164, at 18.
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`5
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`This statement is untrue because no constituent ever complained about Un-
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`der the Moon: A Catwoman Tale—and no one ever described it as “porno-
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`graphic filth.” Under the Moon is not on the Wallace list (although the panel
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`opinion incorrectly states that it is),3 and there is no evidence in the record
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`showing that any person complained to anyone about the presence of this
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`book at Llano Library. We remain at a loss to understand why the plaintiffs
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`are suing over the weeding of this book, as none of the plaintiffs complained
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`about the removal of Under the Moon or expressed interest in checking out
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`that book in their declarations. ROA.227-228 (¶ 4) (complaining about the
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`removal of 16 of the 17 disputed books, with no mention of Under the Moon);
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`ROA.230 (¶ 3) (same); ROA.233-234 (¶ 3) (same); ROA.236 (¶ 3); ROA.244
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`(¶ 3); ROA.278-279 (¶ 3); ROA.423 (¶ 3) (same).
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`The panel opinion’s conclusion that the defendants “likely violated plain-
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`tiffs’ First Amendment rights”4 rests on its assertions that Milum “likely
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`‘adopted’ the motivations of the other Defendants” and that other people’s
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`“complaints . . . were likely also the motivating factor in [Milum’s] decision
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`to remove the seventeen books from the shelves permanently.” Lead Panel
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`Opinion, ECF No. 164, at 18–20. But there were no constituent complaints
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`about Under the Moon, and none of the other defendants ever objected to this
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`3. Compare ROA.357 with Lead Panel Opinion, ECF No. 164, at 18 (“Each
`of the books Milum removed were on the Wallace list.”); see also supra,
`at p. 1.
`4. Lead Panel Opinion, ECF No. 164, at 18 (some capitalization removed).
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`6
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`book or expressed any concerns about it. The panel opinion’s statement that
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`Under the Moon was “removed after constituents complained that [it was]
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`‘pornographic filth’ inappropriate for children”5 is untrue.
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`7. The panel opinion says that all 17 of the disputed books were de-
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`scribed by constituents as “‘pornographic filth’ inappropriate for children.”
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`Lead Panel Opinion, ECF No. 164, at 18; id. (“The seventeen books at issue
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`here were removed after constituents complained that they were ‘porno-
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`graphic filth’ inappropriate for children.”). This statement is untrue. Bonnie
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`Wallace’s e-mail to Ron Cunningham on November 10, 2021, in which the
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`subject line reads “Pornographic Filth at the Llano Public Libraries,” com-
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`plained about pictures in a book entitled “Gender Queer” and included the
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`Wallace List as an attachment. See ROA.349-351. Even if one were to surmise
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`that Ms. Wallace was denouncing every book on her attached spreadsheet as
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`“pornographic filth,” that document contains only 7 of the 17 disputed books
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`in this lawsuit. See supra at p. 3; see also App. No one ever described Under the
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`Moon, It’s Perfectly Normal, In the Night Kitchen, or any of the butt or fart
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`books as “pornographic filth.”
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`8. The panel opinion says that “[t]he district court, which had the op-
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`portunity to observe Milum’s live testimony, found her explanations for her
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`alleged reasons for removing the books to be contradictory and unconvinc-
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`ing.” Lead Panel Opinion, ECF No. 164, at 18. This statement is false. There
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`5. Lead Panel Opinion, ECF No. 164, at 18.
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`7
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`is nothing in the district court’s 26-page opinion that rejects Milum’s testi-
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`mony or declares it “contradictory” or “unconvincing.” ROA.3507-3532. On
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`the contrary, the district court recognized the conflicting testimony between
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`Milum and Tina Castelan but refused to resolve the dispute, declaring that
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`“given its subjective nature, reasonable minds may disagree over how to ap-
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`ply the CREW and MUSTIE criteria”:
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`The record contains competing testimony on this point. Milum
`stated in her declarations and testimony that she weeded the 17
`disputed books because she believed that each of them met the
`library’s criteria for weeding under the CREW and MUSTIE
`factors. See Milum Decl., Dkt. No. 49-1, at ¶¶ 8, 12–16; Hr’g Tr.
`Vol. 2 95:16–106:20. In contrast, Tina Castelan stated that Mi-
`lum’s decisions to weed some of [the] disputed books violated
`the library’s weeding policies. See id. at 6–9; Hr’g Tr. Vol. 1 at
`33:15–45:18. It appears to be undisputed that, given its subjec-
`tive nature, reasonable minds may disagree over how to apply
`the CREW and MUSTIE criteria. Id. at 127:6–8.
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`ROA.3526-3527 n.7.
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`9. The panel opinion says that Milum “likely weeded these [17] books
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`because she was told to by those who disagreed with their message.” Lead
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`Panel Opinion, ECF No. 164, at 20. This statement is untrue. Milum was
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`never told by anyone to weed any book in the library. Milum was instructed
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`by Judge Cunningham to temporarily pull the butt and fart books from the li-
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`brary shelves.6 And Milum was instructed by Judge Cunningham to tempo-
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`6. ROA.2499 (quoting e-mail from Judge Cunningham that says: “Amber, I
`am still receiving calls, letters and emails concerning the Farts and Butts
`books. I think it is best to remove these books from the shelves for now.”
`(emphasis added)); id. (Milum) (“Judge Cunningham recommended
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`8
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`rarily pull books containing “sexual activity or questionable nudity.”7 But no
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`one ever instructed Milum to weed a book.8 The testimony on this point is
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`only that I temporarily remove those books from the shelves.”);
`ROA.2488 (Cunningham) (“My e-mail to Amber Milum . . . recom-
`mended only that Ms. Milum temporarily remove those books from the
`shelves to determine whether they should remain in the children’s sec-
`tion of the library.”); ROA.4009-4010 (“[M]y intent was to neutralize
`the situation until we could investigate it further.”).
`7. ROA.349 (“Amber, As we discussed in our meeting in my office at 9:45
`AM on November 9, 2021 any and all books that depict any type of sex-
`ual activity or questionable nudity are to be pulled immediately.”);
`ROA.682 (“I did in at least one email to Ms. Milum direct her to ‘pull’
`books with ‘sexual activity or questionable nudity,’ it was the shared un-
`derstanding of both myself and Ms. Milum that ‘pull’ in the context
`used meant to remove such books from the shelves for review prior to
`making a decision on whether to re-shelve the books in a different sec-
`tion of the library such as the adult section.”).
`8. 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 Cunning-
`ham, has ever weeded a book from Llano library or directed me to weed
`or permanently remove a book from the library. Nor has any of these in-
`dividuals pressured or attempted to pressure me to weed any book from
`the library.”); ROA.676 (“I was never instructed or pressured by the
`County Judge or any of the County Commissioners to weed or other-
`wise permanently remove any books from the Llano County libraries. I
`was also never instructed to remove any books from the libraries by the
`Llano County Advisory Board.”); ROA.4000-4001 (“Q. Were any of
`your ultimate decisions to weed any book from the library shelves
`influenced in any way by anyone on the commissioners’ court? A. No.
`Q. Were they influenced by anyone on the library advisory board? A.
`No.”); ROA.2499 (Milum) (“Judge Cunningham . . . never directed me
`to weed those books, and my decision to weed those books was entirely
`my own.”); ROA.2488 (Cunningham) (“I never directed Amber Milum
`or any other library employee to weed those books or any other book.”).
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`unrebutted and the plaintiffs do not contest this fact. See Appellants’ Reply
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`Br. at 4.
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`The panel opinion also says that the district court made findings or un-
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`derstood that Cunningham and Moss’s communications with Milum’s were
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`directives to weed the 17 disputed books. See Lead Panel Opinion, ECF No.
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`164, at 19 (“Although Moss and Cunningham testified that they did not ex-
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`pressly direct Milum to permanently remove the books, it was not clear error
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`for the district court to understand their communications as instructions to
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`do just that.”). But there is nothing in the district court’s opinion that at-
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`tempts to characterize Cunningham’s or Moss’s instructions this way, and
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`the district court did not make any finding that Milum was instructed by
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`Cunningham or Moss (or anyone else) to weed the books. See Fed. R. Civ. P.
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`52(a)(2) (requiring district courts to state findings of fact and conclusions of
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`law when granting “an interlocutory injunction,” in the same manner as re-
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`quired for a bench trial under Rule 52(a)(1)). Milum was instructed to tempo-
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`rarily pull the books, not to permanently remove them, and neither the plain-
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`tiffs nor the district court disputes this fact.
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`ROA.2492 (Moss) (“I never ‘ordered’ or ‘directed’ the removal of any
`book from the library and . . . I have no authority over Ms. Milum’s de-
`cision-making”); ROA.4244 (Moss) (“Q. How many times, if any, did
`you direct Amber Milum to remove a particular book from the Llano
`County Library System? A. I did not direct her to remove any books
`from the library.”).
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`10
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`

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`Case: 23-50224 Document: 203-1 Page: 15 Date Filed: 08/02/2024
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`II. The Panel Opinion’s Rationale
`On March 30, 2023, the district court granted the plaintiffs’ motion for
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`preliminary injunction and ruled that the First Amendment prohibits a public
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`library from engaging in “content discrimination” or “viewpoint discrimina-
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`tion” when weeding books. ROA.3523 (“[T]he First Amendment prohibits
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`the removal of books from libraries based on either viewpoint or content dis-
`
`crimination.”). The district court issued a preliminary injunction that or-
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`dered the return of “all print books that were removed because of their view-
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`point and content, including” the 17 books at issue in this litigation.
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`ROA.3531. The district court’s order also enjoined the defendants from
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`“removing any books from the Llano County Library Service’s catalog for
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`any reason during the pendency of this action.” ROA.3532.
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`The defendants appealed and asked this Court to stay the preliminary in-
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`junction and expedite the appeal. See Mot. for Stay, ECF No. 14-1. On May,
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`5, 2023, this Court granted the motion to expedite and carried the motion for
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`stay pending appeal with the case. See Order, ECF No. 58-2. On June 6,
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`2024, a panel of this Court, over dissent, affirmed the preliminary injunction
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`with respect to 8 of the 17 disputed books. See Lead Panel Opinion, ECF No.
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`164, at 27.
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`None of the three judges could agree on the disposition or rationale. The
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`lead opinion, authored by Judge Wiener, rejected the district court’s claim
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`that the First Amendment bans “content discrimination” in public-library
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`weeding decisions. See Lead Panel Opinion, ECF No. 164, at 11 (“[L]ibraries
`
`11
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`

`

`Case: 23-50224 Document: 203-1 Page: 16 Date Filed: 08/02/2024
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`
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`must consider content to some degree in selecting material.”); id. (“Librari-
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`ans may consider books’ contents in making curation decisions.”); id. at 12
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`(“[C]ontent is necessarily relevant in removal decisions.”). Instead, Judge
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`Wiener opined that public librarians violate the First Amendment if they
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`weed a book “with the substantial motivation to prevent access to particular
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`points of view.” Lead Panel Opinion, ECF No. 164, at 15. According to Judge
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`Wiener, a “motivation is ‘substantial’ when in its absence ‘the opposite deci-
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`sion would have been reached.’” Id. at 21–22 (citations omitted). Judge Wie-
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`ner would have held that all 17 books were “likely” weeded in violation of the
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`First Amendment. See id. at 18–23 & n.12.
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`Judge Southwick concurred in part and concurred in the judgment in
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`part. His partial concurrence describes the governing standard somewhat dif-
`
`ferently from Judge Wiener’s lead opinion, declaring that public librarians
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`violate the First Amendment by weeding books “‘simply because they dislike
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`the ideas contained in those books and seek by their removal to prescribe what
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`shall be orthodox in politics, nationalism, religion, or other matters of opin-
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`ion.’” Lead Panel Opinion, ECF No. 164, at 28 (quoting Campbell v. St.
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`Tammany Parish School Board, 64 F.3d 184, 188 (5th Cir. 1995) (emphasis
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`added)). In applying this standard, Judge Southwick held that the weeding of
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`the seven “butt and fart books” did not violate the First Amendment because
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`there was no evidence showing that these books express an “idea” or “view-
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`point.” See id. (“I do not find those books were removed on the basis of a dis-
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`like for the ideas within them when it has not been shown the books contain
`
`12
`
`

`

`Case: 23-50224 Document: 203-1 Page: 17 Date Filed: 08/02/2024
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`
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`any ideas with which to disagree.”). Judge Southwick also held that the re-
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`moval of books containing nudity were constitutionally permissible because
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`those books “were removed as part of the library’s efforts to respond to ob-
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`jections that certain books promoted grooming and contained sexually explic-
`
`it material that was not appropriate for children.” Id. at 29–30. But Judge
`
`Southwick agreed with Judge Wiener that the plaintiffs had shown that the
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`remaining eight books were likely weeded in violation of the First Amend-
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`ment.
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`Judge Wiener and Judge Southwick also agreed that the district court’s
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`preliminary injunction was overbroad, and they vacated the portions of the
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`injunction that had ordered the return of “all print books that were removed
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`because of their viewpoint or content,” and that restrained the defendants
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`from “removing any books from the Llano County Library Service’s catalog
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`for any reason during the pendency of this action.” Lead Panel Opinion, ECF
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`No. 164, at 25 (internal quotation marks omitted); id. at 27. But the Court
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`added a new provision to the injunction that reads as follows:
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`Defendants are hereby enjoined from removing any books from
`the Llano County Library Service’s publicly visible and accessi-
`ble shelves and/or searchable catalog without first providing
`Plaintiffs with documentation of (a) the individual who decided
`to remove or conceal the books, and (b) the reason or reasons
`for that removal or concealment.
`
`Id. at 27.
`
`13
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`

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`Case: 23-50224 Document: 203-1 Page: 18 Date Filed: 08/02/2024
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`
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`Judge Duncan dissented, arguing that a public library’s curating deci-
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`sions are government speech and that the First Amendment should be inap-
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`plicable to a public librarian’s weeding decisions. See id. at 31–76.
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`Summary Of Argument
`
`The en banc court should overrule Campbell v. St. Tammany Parish School
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`Board, 64 F.3d 184 (5th Cir. 1995), and hold that a public library’s curating
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`decisions are government speech immune from scrutiny under the First
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`Amendment. Campbell rejected this idea and held that the constitutionality
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`of a library-book removal turns on the “officials’ substantial motivation in
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`arriving at the removal decision.” Id. at 190. And this holding from Campbell
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`precluded the district court and the three-judge panel from disposing of the
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`plaintiffs’ First Amendment claims on government-speech grounds. But the
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`en banc court is not constrained by Campbell, and it can and should overrule
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`that decision and hold that all acquisition and weeding decisions in public li-
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`braries are government speech that cannot be challenged under the First
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`Amendment. This follows inevitably from the Supreme Court’s pronounce-
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`ment in Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024), which holds that
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`an entity engages in “sp