“The First Amendment allows government officials the discretion to decide what the government will say,” the county’s brief reads.
The case began in April when seven Llano County citizens filed a lawsuit against the Llano County Commissioners Court, led by County Judge Ron Cunningham, for removing some books deemed sexually explicit from county library shelves and ending access to the library’s e-book and audiobook collection.
The county says it removed picture books that depicted nudity and put them in a filing cabinet in August in response to complaints from the community. Two months later, it relocated some books in the children’s sections to the adult sections. The county also terminated access to all 17,000 online books because it could not remove two specific titles on their own, and in November, county officials halted new book purchases and removed more books listed on state Rep. Matt Krause’s (R-Fort Worth) list of putatively inappropriate titles.
The citizens say the county’s obscenity motive was only a cover for viewpoint discrimination, pointing to the removal of nonfiction political books without illustrations. They also claim the county’s new Library Advisory Board, formed in January 2022, violates the law because it convenes in closed meetings.
“Starting in August 2021, Defendants — public officials who control which books are available in the County’s public libraries — have perpetuated a systematic campaign to eradicate books containing ideas or messages that they disagree with from the County’s library collection,” the seven citizens claim.
“In so doing, Defendants have transformed the County’s public libraries from contemplative spaces where residents can explore the marketplace of ideas to battlegrounds in Defendants’ political and ideological war. More troubling still, Defendants have taken steps to cloak their censorship activities in secrecy and insulate it from all forms of community review and scrutiny.”
The citizens have asked the judge in the case, federal district Judge Robert Pitman, for a court order to restore the books to the shelves while the case pends.
In response, the county commissioners claim the First Amendment does not require the government to maintain public forums, including libraries. Relying on a Supreme Court case and other precedent, the officials say library selections count as government speech that can be regulated more stringently than other speech.
“Because there is no right to a public forum in the first place, fully closing a forum generally moots First Amendment claims relating to that forum,” the county’s Thursday brief reads.
Furthermore, the county argues that letting the removals continue would, in fact, help free speech.
“Allowing governments to fully close forums, on the other hand, reduces the anticipated cost of opening them; rather than avoid creating such a forum out of a fear of future liability, governments are encouraged to experiment with creating various forums appropriate to each of their communities. The result is not less speech, but more,” the officials say.
The Texas Open Meetings Act requires all governmental bodies in the state to make their meetings open to the general public. However, the county says the Library Advisory Board does not count as a “governmental body” under the definition in the law.
The county’s motion today asked Pitman to dismiss the case on the grounds that the citizens lack a real injury that the court can address.
“No Plaintiff has alleged a specific plan to access books to which they no longer have access through the County’s library system. Nor has a Plaintiff alleged a specific intention to attend future Advisory Board meetings. There are allegations that some Plaintiffs were denied access to a few books and OverDrive in the past, but ‘past exposure’ is not enough,” the county argues.
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