Case: 23-50224 Document: 85-1 Page: 1 Date Filed: 05/16/2023
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`
`
`No. 23-50224
`In the United States Court of Appeals for the Fifth Circuit
`_____________
`
`Leila Green Little; Jeanne Puryear; Kathy Kennedy; Rebecca
`Jones; Richard Day; Cynthia Waring; Diane Moster,
`Plaintiffs-Appellees,
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`
`
`
`
`
`
`
`
`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.
`
`
`
`
`
`
`_____________
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`
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`
`
`
`
`On Appeal from the United States District Court
`for the Western District of Texas
`Case No. 1:22-cv-424-RP
`_____________
`
`APPELLANTS’ OPENING 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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`

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`Case: 23-50224 Document: 85-1 Page: 2 Date Filed: 05/16/2023
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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
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`
`
`
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`
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`
`
`
`
`
`
`
`
`
`
`
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`
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`
`
` /s/ Jonathan F. Mitchell
`Jonathan F. Mitchell
`Counsel for Defendants-Appellants
`i
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`

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`Case: 23-50224 Document: 85-1 Page: 3 Date Filed: 05/16/2023
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`Statement Regarding Oral Argument
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`The defendants-appellants respectfully request oral argument, as the issues in
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`this case are sufficiently important and complex to warrant oral-argument time.
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`ii
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`Case: 23-50224 Document: 85-1 Page: 4 Date Filed: 05/16/2023
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`Table Of Contents
`Certificate of interested persons ............................................................................... i
`Statement regarding oral argument .......................................................................... ii
`Table of contents ..................................................................................................... iii
`Table of authorities .................................................................................................. v
`Statement of jurisdiction .......................................................................................... 3
`Statement of the issues ............................................................................................. 4
`Statement of the case ............................................................................................... 5
`I. Facts and evidence ......................................................................................... 5
`II. The district court’s ruling ............................................................................ 16
`Summary of argument ............................................................................................ 19
`Standard of review ................................................................................................. 20
`Argument ............................................................................................................... 20
`I. The district court erred in granting a preliminary injunction ....................... 20
`A. The plaintiffs failed to make a clear showing that the in-house
`checkout system violates their First Amendment right to access
`and receive information .......................................................................... 21
`B. The plaintiffs failed to make a “clear showing” of “irreparable
`harm” when the each of 17 disputed books remains available for
`them to read and check out at Llano Library ........................................... 23
`C. The district court erred in holding that the First Amendment
`forbids “viewpoint discrimination” or “content discrimination” in
`public-library weeding decisions ............................................................. 25
`D. The plaintiffs failed to make a “clear showing” that Amber Milum
`engaged in viewpoint or content discrimination when weeding the
`17 disputed books .................................................................................... 34
`E. The preliminary injunction is overbroad ................................................. 38
`F. The plaintiffs failed to make a “clear showing” that the balance of
`equities and the public interest favors a preliminary injunction .............. 40
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`iii
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`Case: 23-50224 Document: 85-1 Page: 5 Date Filed: 05/16/2023
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`II. The Court should hold that rational-basis applies to public-library
`weeding decisions ........................................................................................ 42
`Conclusion ............................................................................................................. 44
`Certificate of service .............................................................................................. 45
`Certificate of compliance ....................................................................................... 46
`Certificate of electronic compliance ....................................................................... 47
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`Case: 23-50224 Document: 85-1 Page: 6 Date Filed: 05/16/2023
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`Table of Authorities
`
`Cases
`Barber v. Bryant, 860 F.3d 345 (5th Cir. 2017) ........................................................ 39
`Board of Education v. Pico, 457 U.S. 853 (1982) ............................................ 13, 27, 28
`Califano v. Yamasaki, 442 U. S. 682 (1979) ............................................................. 39
`Campbell v. St. Tammany Parish School Board,
`64 F.3d 184 (5th Cir. 1995) ............................................................................ 27, 28
`Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005) .................................. 19, 26, 28, 34, 43
`Christian Legal Society v. Martinez, 561 U.S. 661 (2010) ......................................... 29
`CK-W by and through TK v. Wentzville R-IV School District,
`619 F. Supp. 3d 906 (E.D. Mo. 2022) ..................................................... 24, 27, 28
`Coon v. Ledbetter, 780 F.2d 1158 (5th Cir. 1986) ...................................................... 21
`DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .............................................. 39
`Egli v. Chester County Library System,
`394 F. Supp. 3d 497 (E.D. Pa. 2019) ................................................................... 43
`Garrett v. Clarke, 147 F.3d 745 (8th Cir. 1998) ........................................................ 21
`Gay Guardian Newspaper v. Ohoopee Regional Library System,
`235 F. Supp. 2d 1362 (S.D. Ga. 2002) ................................................................ 43
`In re Abbott, 954 F.3d 772 (5th Cir. 2020) ............................................................... 40
`In re Gee, 941 F.3d 153 (5th Cir. 2019) ..................................................................... 22
`John Doe #1 v. Veneman, 380 F.3d 807 (5th Cir. 2004) ............................................ 40
`Jones v. District of Columbia, 177 F. Supp. 3d 542 (D.D.C. 2016) ...................... 23, 24
`Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam) ........................................ 17
`Nat’l Endowment for the Arts v. Finley, 524 U.S. 569 (1998) .................................... 29
`OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017) .................................. 40
`Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) ................................... 29
`Professional Association of College Educators v. El Paso County
`Community College District, 730 F.2d 258 (5th Cir. 1984) ................................... 40
`v
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`Case: 23-50224 Document: 85-1 Page: 7 Date Filed: 05/16/2023
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`Rosenberger v. Rector and Visitors of University of Virginia,
`515 U.S. 819 (1995) ............................................................................................. 30
`Rust v. Sullivan, 500 U.S. 173 (1991) ....................................................................... 29
`Sepulvado v. Jindal, 729 F.3d 413 (5th Cir. 2013) .................................................... 20
`Serra v. U.S. General Sevices Administration,
`847 F.2d 1045 (2d Cir. 1988) ............................................................................... 28
`Sund v. City of Wichita Falls, 121 F. Supp. 2d 530 (N.D. Tex. 2000) ....................... 29
`Texas Medical Providers Performing Abortion Services v. Lakey,
` 667 F.3d 570 (5th Cir. 2012) ............................................................................... 20
`TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) ............................................... 22
`United States v. American Library Ass’n Inc., 539 U.S. 194 (2003) .......... 19, 26, 34, 43
`United States v. Students Challenging Regulatory Agency Procedures
`(SCRAP), 412 U.S. 669 (1973) ............................................................................ 22
`Virgil v. School Board of Columbia County, Florida,
`862 F.2d 1517 (11th Cir. 1989) ............................................................................. 28
`Voting for America, Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013) ........................... 20–21
`Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) ................... 20, 23, 24
`Statutes
`28 U.S.C. § 1292(a)(1) .............................................................................................. 3
`42 U.S.C. § 1983 .................................................................................................... 21
`Other Authorities
`David P. Currie, Misunderstanding Standing, 1981 Sup. Ct. Rev. 41 ........................ 22
`
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`Case: 23-50224 Document: 85-1 Page: 8 Date Filed: 05/16/2023
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`A public library must continually “weed” books from its shelves to make room
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`for new arrivals and ensure that its collection remains up-to-date and responsive to
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`the needs of the community. This is standard practice in the library profession, and
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`even small libraries weed and permanently remove thousands of books each year
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`from their shelves and catalogs. From February 1, 2021, to March 18, 2022, the
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`Llano County Library System weeded nearly 8,000 books, which were sold or do-
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`nated and removed from circulation. See Milum Decl. ¶ 6, ECF No. 14-4;
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`ROA.3953 (“We weed all the time.”).1
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`Librarians weed materials according to an acronym called “MUSTIE,”2 which
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`encourages librarians to weed materials that are Misleading, Ugly,3 Superseded,
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`Trivial, Irrelevant,4 or available Elsewhere. The MUSTIE factors provide guide-
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`lines and not hard-and-fast rules.5 It is permissible and sometimes prudent for a li-
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`
`1. The Llano County Library System comprises three distinct library buildings:
`Llano Library, Kingsland Library, and Lakeshore Library. The disputed books
`in this case were all weeded from Llano Library.
`2. ROA.3955-3957; ROA.2636-2638.
`3. The “Ugly” factor is used to weed books that are damaged. ROA.2637.
`4. A book is “irrelevant” if library patrons are not checking it out enough to war-
`rant continuation in the library’s collection. The frequency of checkouts need-
`ed to avoid weeding depends on the publication’s Dewey decimal class.
`ROA.3890; ROA.2501-2502; ROA.2483.
`5. ROA.3526-3527 n.7 (“It appears to be undisputed that, given its subjective na-
`ture, reasonable minds may disagree over how to apply the CREW and
`MUSTIE criteria.”); ROA.3957 (“The CREW is mainly guidelines, so every
`librarian is going to go with their feelings, their training, their gut on their
`community of what is getting checked out, what isn’t and why.”); ROA.3891-
`3892 (“It’s up to the librarian and the library system.”); ROA.2603 (“[T]he fi-
`nal weeding decision is left to the professional judgment of the resident librari-
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`1
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`Case: 23-50224 Document: 85-1 Page: 9 Date Filed: 05/16/2023
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`brarian to weed a book based on the presence of a single MUSTIE factor, such as
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`books that are seriously damaged (Ugly), that have been replaced by a new edition
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`in the library (Superseded), or that haven’t been checked out in a long time (Irrele-
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`vant). ROA.2485-2486; ROA.2502. But when a book only barely meets a single
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`MUSTIE factor, or if the issue with the book is a relatively minor one, a librarian
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`will sometimes (but not always) look for the presence of an additional MUSTIE fac-
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`tor before deciding to weed the book. See id.
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`The plaintiffs disagree with the Llano County head librarian’s decision to weed
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`17 of the thousands of books that she weeded in 2021, and they have falsely accused
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`her of weeding those 17 books because she disapproves of their content. When the
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`plaintiffs sued to compel the return of those 17 books to the shelves and catalog, the
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`Llano Library accepted a donation of the 17 disputed books and made them availa-
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`ble to the plaintiffs through its in-house checkout system. ROA.3463-3465. This ar-
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`rangement accommodated the plaintiffs’ stated desire to read and check out the 17
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`disputed books, but without empowering individual library patrons to commandeer
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`the library’s limited shelf space or override the library staff’s weeding decisions.
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`The plaintiffs refused to accept this arrangement and continued litigating, even
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`though they could not show an ongoing violation of their First Amendment rights
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`when each of the disputed books remained available for them to read and check out
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`at Llano Library.
`
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`an.”); ROA.2587 (“[L]ibrarians are urged to use professional judgment at all
`times.” (boldface in original).
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`2
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`Case: 23-50224 Document: 85-1 Page: 10 Date Filed: 05/16/2023
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`On March 30, 2023, the district court granted a preliminary injunction and
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`ruled that the First Amendment prohibits a public library from engaging in “con-
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`tent discrimination” or “viewpoint discrimination” when weeding books.
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`ROA.3523 (“[T]he First Amendment prohibits the removal of books from libraries
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`based on either viewpoint or content discrimination.”). Then it ordered the defend-
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`ants to return to the shelves every single book that had ever been removed because of
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`viewpoint or content, in addition to the 17 books that the plaintiffs had sued over,
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`and enjoined the defendants from removing any book from the library catalog for
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`any reason during the pendency of the litigation. ROA.3531-3532. This relief ex-
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`tends far beyond what the plaintiffs had requested,6 and awards relief that the plain-
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`tiffs do not even have Article III standing to pursue. The defendants have appealed
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`and respectfully ask this Court to reverse the preliminary injunction.
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`Statement Of Jurisdiction
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`The federal district court had subject-matter jurisdiction under 28 U.S.C.
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`§ 1331 because the plaintiffs are alleging violations of their First Amendment rights.
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`This Court’s appellate jurisdiction rests on 28 U.S.C. § 1292(a)(1) because the de-
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`fendants have appealed a preliminary injunction. The district court issued the in-
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`junction on March 30, 2023, ROA.3507-3532, and the defendants appealed later
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`that day, ROA.3533.
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`6. ROA.1038-1040 (plaintiffs’ proposed order).
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`3
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`Statement Of The Issues
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`1. Did the plaintiffs make a “clear showing” that the defendants are violating
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`their “First Amendment rights to access and receive information” when each of the
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`17 books that the plaintiffs have sued over remains available for the plaintiffs to read
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`and check out at Llano Library?
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`2. Did the plaintiffs make a “clear showing” that they will suffer irreparable
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`harm absent a preliminary injunction when each of the 17 books that the plaintiffs
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`have sued over would remain available for the plaintiffs to read and check out at
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`Llano Library?
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`3. Did the district court err in holding that the First Amendment prohibits
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`public librarians from engaging in “viewpoint discrimination” or “content discrim-
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`ination” when weeding library materials?
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`4. Assuming for the sake of argument that that the First Amendment prohib-
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`its public librarians from engaging in viewpoint- or content-based weeding deci-
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`sions, did the plaintiffs make a “clear showing” that Amber Milum engaged in
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`“viewpoint discrimination” or “content discrimination” when weeding the 17 dis-
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`puted books?
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`5. Did the district court err by issuing a preliminary injunction that extends
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`beyond the 17 books that the plaintiffs have sued over?
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`6. Did the plaintiffs make a “clear showing” that the balance of equities and
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`the public interest support a preliminary injunction?
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`4
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`
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`Statement Of The Case
`I. Facts And Evidence
`On April 25, 2022, seven patrons of Llano Library sued Llano County, Amber
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`Milum (the library director), the county judge, every county commissioner, and
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`several volunteer members of the Llano County library advisory board. ROA.39-69.
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`The complaint alleged that the defendants were violating the plaintiffs’ “First
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`Amendment rights to access and receive information”7 by weeding certain books
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`from Llano Library, and it accused the defendants of engaging in “unconstitutional
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`content-based and viewpoint-based discrimination” in weeding those books.
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`ROA.67 (¶ 147).8 On May 9, 2022, the plaintiffs moved for a preliminary injunction
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`that would compel the return of 17 previously weeded books to the library shelves
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`and catalog. ROA.187-212.9
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`
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`7. ROA.67 (¶ 148).
`8. The complaint also asserted a due-process claim, but the district court did not
`grant preliminary relief on that claim and it is not an issue in the appeal.
`9. The 17 books that the plaintiffs want returned to the shelves and catalog are:
`Freakboy by Kristin Elizabeth Clark; Being Jazz: My Life as a (Transgender) Teen
`by Jazz Jennings; Gabi, a Girl in Pieces by Isabel Quintero; Under the Moon: A
`Catwoman Tale by Lauren Myracle; Shine by Lauren Myracle; Spinning by Til-
`lie Walden; It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual
`Health by Robie Harris; In the Night Kitchen by Maurice Sendak; My Butt is So
`Noisy!, I Broke My Butt!, and I Need a New Butt! (aka the “butt books”), all by
`Dawn McMillan; Larry the Farting Leprechaun, Gary the Goose and His Gas on
`the Loose, Freddie the Farting Snowman, and Harvey the Heart Had Too Many
`Farts (aka the “fart books”), all by Jane Bexley; They Called Themselves the
`K.K.K: The Birth of an American Terrorist Group by Susan Campbell Bartoletti;
`and Caste: The Origins of Our Discontent by Isabel Wilkerson. ROA.1039 (pro-
`posed order).
`
`5
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`In response to the lawsuit, the Llano Library accepted a donation of the 17 dis-
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`puted books and made them available for the plaintiffs to read and check out
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`through the library’s “in-house checkout” system.10 The in-house checkout system
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`contains books that are donated or loaned to Llano Library from staff members or
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`other friends of the library. ROA.673. These in-house books are not placed on the
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`shelves or in the catalog and do not have bar codes, but are nonetheless made avail-
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`able for library patrons to read and check out. ROA.3924-3925.
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`The donation and availability of the 17 disputed books through the in-house
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`checkout system does not moot the plaintiffs’ First Amendment claims, as the
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`plaintiffs continue to suffer Article III injury from the fact that the 17 books are no
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`longer on the library’s shelves or included in the catalog. But it does eliminate any
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`possible violation of the plaintiffs’ “First Amendment right to access and receive
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`information,”11 as each plaintiff is aware of the in-house checkout system and the
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`availability of the disputed books,12 and the plaintiffs have the same ability to check
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`out the disputed books from Llano Library that they had before the books were
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`weeded.
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`The plaintiffs refused to accept this arrangement and demanded a preliminary
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`injunction that would return each of the 17 disputed books to the shelves and cata-
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`log—even though they could not show “irreparable harm” when the 17 books re-
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`10. ROA.3463-3465; ROA.673-674; ROA.2497; ROA.720-721.
`11. ROA.67 (¶ 148).
`12. ROA.3463-3465 (stipulation of undisputed facts).
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`6
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`Case: 23-50224 Document: 85-1 Page: 14 Date Filed: 05/16/2023
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`mained available for them to read and check out at Llano Library.13 The district
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`court held a two-day hearing on the motion for preliminary injunction in October of
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`2022. The undisputed evidence and sworn testimony showed that:
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`• Amber Milum alone made the decision to “weed” each of the 17
`disputed books.14
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` None of the other defendants ordered, pressured, or even asked
`Ms. Milum to weed (i.e., permanently remove) any book from Lla-
`no Library or the Llano County Library System.15
`
` Ms. Milum’s decisions to weed the 17 books had nothing to do with
`the content or viewpoints expressed in the books.16 Ms. Milum did
`not even read any of the 17 disputed books before weeding them.17
`
` •
`
` •
`
`
`13. The plaintiffs’ district-court briefing did not explain how the defendants could
`be violating their “First Amendment right to access and receive information”
`by making the 17 disputed books available through Llano Library’s in-house
`checkout system rather than returning them to the shelves and catalog.
`ROA.1884-1913; ROA.2390-2407.
`14. ROA.2499 (“I alone made the decisions to weed the 17 disputed books in this
`case. No other defendant in this case, including Bonnie Wallace, Rochelle
`Wells, Rhonda Schneider, Jerry Don Moss, or Ron Cunningham, has ever
`weeded a book from Llano library or directed me to weed a book. Nor has any
`of these individuals pressured or attempted to pressure me to weed any book
`from the library.”); ROA.676 (“I was never instructed or pressured by the
`County Judge or any of the County Commissioners to weed or otherwise per-
`manently remove any books from the Llano County libraries. I was also never
`instructed to remove any books from the libraries by the Llano County Adviso-
`ry Board.”).
`15. See note 14, supra; see also ROA.4000 (“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.2492 (Moss) (“I never ‘ordered’ or ‘di-
`rected’ the removal of any book from the library and . . . I have no authority
`over Ms. Milum’s decisionmaking”).
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`7
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`Case: 23-50224 Document: 85-1 Page: 15 Date Filed: 05/16/2023
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` Ms. Milum weeded the 17 disputed books solely because she con-
`cluded, in her professional judgment, that the books satisfied the
`MUSTIE criteria for weeding, no less than the other 7,767 books
`that were weeded from the Llano County Library System between
`February 1, 2021, and March 18, 2022.18
`
` •
`
`
`
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`16. ROA.676 (“I did not consider the content of any of the books I weeded when I
`made the decision to weed them. I also did not consider any of the viewpoints
`expressed in any of the books I weeded. I weeded the books based on the objec-
`tive criteria I always use in determining which books to weed.”); ROA.677
`(“No book was removed based on its content or viewpoint during this pro-
`cess.”); ROA.2506-2507 (“I have never in my entire career weeded a book be-
`cause of its viewpoints, and I have never considered the content of a book
`when making a weeding decision except to the extent that the MUSTIE factors
`might require me to consider whether a book should be considered ‘mislead-
`ing,’ ‘superseded,’ ‘trivial,’ or ‘irrelevant.’ I have no hostility, antipathy, or op-
`position of any type to the presence of library books discussing critical race
`theory or LGBTQ issues, regardless of the viewpoints expressed in those
`books, and the Llano library system has many books on these topics. Nor do I
`have any hostility, antipathy, or opposition of any type to the presence of li-
`brary books containing nudity, so long as the depictions are lawful (i.e., no
`child pornography or obscenity) and intended to serve educational rather than
`pornographic purposes. I do not ever allow my personal views or beliefs to in-
`fluence my weeding decisions because a library exists to serve the community,
`and our patrons have diverse beliefs and tastes and reading habits. For the
`plaintiffs to accuse me of weeding books because I disapprove of nudity, critical
`race theory, or LGBTQ content is false and defamatory.”).
`17. ROA.3974 (“Q. Have you read any of the books that we’ve been talking about?
`A. No.”); ROA.2507 (“I did not read any of those books before weeding them,
`and I am not even aware of the ‘viewpoints’ or ‘positions’ (if any) that might
`be expressed in any of those books.”).
`18. ROA.4174-4187 (Milum explaining her reasons for weeding the disputed
`books); ROA.672, 675-676 (same); ROA.2500-2501 (Milum explaining her rea-
`sons for weeding Under The Moon); ROA.2501 (Milum explaining her reasons
`for weeding the “butt” and “fart” books); ROA.2507 (“I did not consider any
`of the 17 books that I weeded to be pornographic or in any way inappropriate
`
`8
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`Case: 23-50224 Document: 85-1 Page: 16 Date Filed: 05/16/2023
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` One of the books that Ms. Milum weeded from Llano Library was
`Being Jazz: My Life as a (Transgender) Teen, because it hadn’t been
`checked out at Llano Library in more than four years.19 Ms. Milum
`did not, however, weed the version of Being Jazz held at Kingsland
`Library because the Kingsland version had a better circulation rec-
`ord.20
`
` Jerry Don Moss, one of Llano County’s Commissioners, expressed
`his opinion to Ms. Milum and library staff that the “butt” books
`and It’s Perfectly Normal did not belong in the children’s section of
`the library,21 but he never instructed anyone to remove or weed any
`book.22
`
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`for a public library. I weeded those books solely based on my application of the
`CREW/MUSTIE factors.”).
`19. ROA.346 (showing last checkout was July 19, 2017).
`20. ROA.3995 (“Q. Why did you decide to weed Being Jazz: My Life As A
`Transgender Teen? 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.”).
`21. ROA.4243-4244 (Moss) (“I made sure and told her that I was not her supervi-
`sor . . . . I told her that I didn’t think that those books should be in the chil-
`dren’s section . . . . That was my personal opinion. Like I said, I wanted to
`make sure that she understood I wasn’t her boss. I think she knew that. So it
`was just my opinion that it should not be in the children’s section of the li-
`brary.”); ROA.2492 (Moss) (“I merely expressed my opinions that the “butt”
`books and It’s Perfectly Normal should not be shelved in the children’s section
`of the library”); ROA.2498 (Milum) (“Commissioner Moss merely expressed
`his opinion to me regarding the butt books. He did not think those books
`should be in the children’s section and he said that if it were him he would take
`them out of the system and for me to pick my battles.”).
`22. 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.”); 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 decisionmaking”); ROA.684 (Moss) (“I
`
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`Case: 23-50224 Document: 85-1 Page: 17 Date Filed: 05/16/2023
`
` Ron Cunningham, the Llano County Judge, recommended that Ms.
`Milum temporarily pull the “butt” and “fart” books from the
`shelves to determine whether they should remain in the children’s
`section of the library,23 but he never asked or directed Ms. Milum
`to “weed” those books by permanently removing them from the
`shelves and catalog.24
`
` Judge Cunningham also asked Ms. Milum to temporarily pull from
`the shelves books that “depict any type of sexual activity or ques-
`tionable nudity”25 so that Ms. Milum could review whether those
`
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`made clear to Ms. Milum that I was not her boss and could not tell her what to
`do. . . . I never directed or suggested that any books be removed from the li-
`brary based on their content.”); ROA.2295 (Milum) (“Commissioner Moss
`never ordered or directed me to weed or temporarily remove the butt books (or
`any other book)”); ROA.2296 (Milum) (“Commissioner Moss never ordered
`the weeding or even the temporary removal of any book in the Llano library.”).
`23. 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 only that I temporar-
`ily remove those books from the shelves.”); ROA.2488 (Cunningham) (“My e-
`mail to Amber Milum . . . recommended only that Ms. Milum temporarily re-
`move those books from the shelves to determine whether they should remain
`in the children’s section of the library.”); ROA.4009-4010 (“[M]y intent was
`to neutralize the situation until we could investigate it further.”).
`24. 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 li-
`brary employee to weed those books or any other book.”).
`25. ROA.349 (e-mail from Ron Cunningham to Amber Milum of November 10,
`2021); 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 under-
`standing 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 section of the library such as the
`adult section.”).
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`Case: 23-50224 Document: 85-1 Page: 18 Date Filed: 05/16/2023
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`books should remain in the library’s collection. All of those books
`remained in the catalog and remained available for checkout while
`Ms. Milum conducted her review.26 Ms. Milum returned the vast
`majority of these temporarily pulled books to the shelves after con-
`ducting her review.
`
` Judge Cunningham also forwarded to Ms. Milum a spreadsheet
`prepared by Bonnie Wallace of books at Llano Library that Ms.
`Wallace found objectionable. Judge Cunningham did not look at the
`spreadsheet27 and did not instruct Ms. Milum to do anything with
`Ms. Wallace’s spreadsheet.28 Ms. Milum did not know Ms. Wallace
`and had never heard of her when she received the spreadsheet from
`Judge Cunningham.29
`
` Judge Cunningham never i