Appeals court rules Texas can’t ban books just because they mention 'butts and farts'

07 June 2024

Even the 5th Circuit U.S. Court of Appeals — considered to be one of, if not the most conservative federal appellate court — doesn't think Texas school districts can pull books from shelves simply because of parents complaining.

The 5th Circuit handed down its decision on Friday in the case that originally stemmed from complaints about the Llano County public library system making books available that showed "butts and farts." According to the Houston Chronicle, the complaints were mostly in response to "a book about a farting leprechaun, a book about a transgender teen, two books about the history of racism in the United States and a book about puberty."

"Librarians may consider books’ contents in making curation decisions," 5th Circuit judges wrote in their opinion. "Their discretion, however, must be balanced against patrons’ First Amendment rights... a book may not be removed for the sole—or a substantial— reason that the decisionmaker does not wish patrons to be able to access the book’s viewpoint or message."

Some judges dissented with the majority opinion. Judges Kyle Duncan and Leslie Southwick — appointed to the 5th Circuit by former Presidents Donald Trump and George W. Bush, respectively — derisively referred to Senior Judge Jacques L. Wiener and other judges who struck down the book bans as the "library police." That phrase is itself a reference to a short story by acclaimed prolific novelist Stephen King, and Judge Wiener did not let the reference go unacknowledged in his response.

""King, a well-known free speech activist, would surely be horrified to see how his words are being twisted in service of censorship," wrote Wiener, who was appointed to the bench by former President George H.W. Bush. "Per King: 'As a nation, we’ve been through too many fights to preserve our rights of free thought to let them go just because some prude with a highlighter doesn’t approve of them.' Defendants and their highlighters are the true library police."

The Chronicle reported that while the 5th Circuit's opinion only pertains to public libraries, the decision could potentially have a ripple effect in future litigation involving public school libraries in Texas and other Southern states, as well. The 5th Circuit — whose jurisdiction encompasses Texas, Louisiana and Mississippi — upheld an injunction to order all books pulled from shelves be reinstated within 24 hours in response to a lawsuit filed by seven library patrons.

School districts within the Houston area, including Katy, Fort Bend and Cy-Fair (Cypress-Fairbanks) all pulled books from shelves in response to parent complaints. In 2022 alone, the American Library Association found that Texas led all states in attempted book bans, attempting to remove more than 2,300 books from the shelves.

Texas is merely one of several large states where book bans have become a contentious topic for between parents and school districts. In Florida, House Bill 1069, which was signed into law by Republican Governor Ron DeSantis in 2023, requires that libraries remove any book that a complainant claims "depicts or describes sexual conduct," even if the book itself is not pornographic. That law eventually led to the Escambia County School District removing dictionaries from its shelves. Another book the county removed was The Diary of Anne Frank.

"The Escambia County School Board banned most of these books at the request of Vicki Baggett, a high school English teacher in the county," journalist Judd Legum, author of the Popular Information Substack, reported. "Baggett is responsible for hundreds of challenges in Escambia County and neighboring counties."

Click here to read the Houston Chronicle's full report.

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