Jonathan Mitchell told the Fifth Circuit public libraries only exist "as a matter of grace"

Mitchell argued the First Amendment shouldn't apply to public library book removal decisions. The appeals court also heard the Mississippi mail voting case.

On Tuesday, the U.S. Court of Appeals for the Fifth Circuit held oral arguments in two important cases that show what happens when a court signals that no precedent is safe.

The government “has no constitutional obligation to provide libraries,” Jonathan Mitchell, representing Llano County, Texas, in a case about its public library, told the full appeals court sitting en banc in the first case. With public libraries, he declared, governments provide books to the public “as a matter of grace.”

In a case over the Llano County public library removing a handful of books over complaints from a couple of residents, Mitchell’s response once hired to represent the county was first to buy the books himself to replace them and alter or even end the lawsuit. When that didn’t work, he ultimately decided to go for blowing up precedent.

In Tuesday’s arguments before the en banc court, Mitchell said the court should toss out a 1995 Fifth Circuit decision — Campbell v. St. Tammany Parish School Board — that has provided protections against removal of books from public libraries in the circuit for nearly 30 years.

In the arguments in the second case, lawyers for the Republican National Committee, joined by the Mississippi Republican Party, and Libertarian Party of Mississippi argued that the state’s law allowing the counting of mail-in absentee ballots postmarked by Election Day but not received until up to five days later conflicts with federal statutes setting Election Day.

Although they drew a panel of perhaps the three furthest-right judges on the far-right court in Judges James Ho, Kyle Duncan, and Andy Oldham — all Trump appointees — it wasn’t clear they convinced the trio that the court should rule that a law passed by Mississippi (and a policy in effect in more than 20 states) is preempted by the federal statutes (that haven’t stopped any other states in the past).

While the arguments in opposition to the law didn’t go particularly badly for the two lawyers, the defense of the law was significantly stronger — both presentation-wise and in substance. Mississippi Solicitor General Scott Stewart, working in conservative Republican Attorney General Lynn Fitch’s office, argued alongside Don Verrilli, a former Obama administration solicitor general now representing the Democratic National Committee, and Christopher Dodge with Elias Law Group, who was representing a veterans group and retirees group.

I covered this case previously, and I’ll have more when we get a decision, so, for now, I’m going to focus on the arguments in the Llano County case.

Judge Jacques Wiener, Jr., a senior judge on the Fifth Circuit, wrote the majority opinion in the Llano County case when it was heard before the three-judge panel. Tuesday’s en banc rehearing vacated that June decision, but in it, she summed up Campbell: “‘The key inquiry in a book removal case,’ we wrote in Campbell, is whether the government’s ‘substantial motivation’ was to deny library users access to ‘objectionable ideas.’”

That decision was, Mitchell said on Tuesday, “wrong and should be overruled.”

Instead, Mitchell argued, library “curation” decisions — i.e., book removal — should be treated as government speech. Such a decision is stark, as it would remove the action from First Amendment protection altogether, allowing the government to discriminate based on content or viewpoint.

When asked by Judge Stephen Higginson, an Obama appointee, whether any court, anywhere had adopted that position, Mitchell acknowledged, “No, we have not found one,” but insisting, “I don’t think that’s fatal to our position, Judge Higginson.”

Mitchell is the former solicitor general of Texas who represented Donald Trump at the Supreme Court in the Fourteenth Amendment insurrection disqualification case. He was also the force behind Texas’s S.B. 8 vigilante abortion ban. On Tuesday, at one point he explicitly compared his approach regarding now urging the en banc court to overrule Campbell to Mississippi’s approach in Dobbs v. Jackson Women’s Health Organization to urging the Supreme Court to overrule Roe v. Wade.

In other words, Mitchell is rarely more at home than when arguing in front of the Fifth Circuit — a far-right court that regularly issues rulings the upend or ignore precedent. (As such, it often finds its cases being reviewed, and even reversed, by the Supreme Court. But, as I’ve written previously, far-right lawyers like Mitchell don’t necessarily see that as a bad thing.)

An 18-judge court will be deciding this case. The 17 active judges on the court include 12 Republican appointees — including six Trump appointees — and 5 Democratic appointees. The final judge is Wiener because, although a senior judge, such judges can participate in an en banc rehearing if they were on the case’s initial three-judge panel. Wiener also was appointed by a Republican president.

Despite that, it was not quite clear after more than an hour of arguments what would happen in the case. Two of the judges on the panel — Wiener and Judge Leslie Southwick — are both Republican appointees and upheld the district court’s injunction. The decision will ultimately likely come down to where a handful of judges in what counts for the middle of the Fifth Circuit land in the case. Among them are a few George W. Bush appointees — Chief Judge Priscilla Richman and Judges Jennifer Walker Elrod and Catharina Haynes — and Judge Don Willett, a Trump appointee who did not participate in Tuesday’s arguments but will be participating in the decision. If things are going well for the challengers, I’d also watch where Judge Cory Wilson, another Trump appointee, lands.

There also are multiple ways of resolving the case, so — as with any en banc proceeding in a bigger court — the real issue will be getting to a specific opinion that can garner 10 votes.

Additionally, and as Mitchell made clear repeatedly, an en banc court can re-visit and overturn any prior Fifth Circuit decision: Here, Campbell. As such, in theory, either Southwick or Wiener could, given the opportunity, re-visit that decision and vote differently than they did on the panel. But, I wouldn’t expect it. Especially not as to Wiener — who, it turns out, also was on the 1995 panel that decided Campbell.

Mitchell argued that this case should be considered in light of this July’s Supreme Court decision in Moody v. NetChoice, addressing private internet curation decisions. Specifically, he said that should first lead the court to a conclusion that library curation decisions are speech. Then, he continued, applying the test from a 2022 Supreme Court decision addressing government speech, the Fifth Circuit should decide that those “curation” decisions are government speech not subject to First Amendment restrictions.

As Florida Solicitor General Henry Whitaker argued for Florida and other Republican-led states in support of Llano County, the court does not need to rule on the government speech issue to side with the county.

Referring to library book selection decisions as “program administration,” Whitaker said that this is in the “heartland” of cases illustrating the fact that the government doesn’t “have an obligation to subsidize” the exercise of rights. In other words, although people have a First Amendment right to receive information, the government doesn’t need to pay for it.

In contrast, Matthew Borden from BraunHagey & Borden argued for the Llano County residents suing over the books’ removal that there is no reason to overrule Campbell because it set forth a workable standard that has not led to any “flood of litigation.”

He also noted that Supreme Court has been very cautious of expanding the government speech doctrine because, as he put it “it chews into the First Amendment."

Because of the nature of an en banc rehearing, and the opinion-writing involved, this could be an opinion we don’t see until next summer or later.

When we get it, though, Law Dork will have that.