Are Florida’s book removals in schools protected government speech? Judge is not convinced

Tallahassee Democrat | By Douglas Soule | May 1, 2024

The legal drama centers on the removal of “And Tango Makes Three,” a children’s book, based on a true story, about two male penguins that raise a chick together.

A federal judge isn’t convinced that book removals in schools are protected government speech, as argued by Florida and some of its counties to justify the barring of titles with LGBTQ themes.

“By all accounts, school officials enjoy substantial discretion in determining which books should be available in school libraries,” wrote Trump-appointed U.S. District Judge Allen Winsor in an opinion last week. “But the issue of how and to what extent the First Amendment limits that discretion is surprisingly unsettled.”

His eventual decision could be consequential on First Amendment law, coming at a time when controversies about “book bans” are rampant — and when Florida leads the nation in the number of titles removed from school libraries.

“At this early stage of the litigation, I cannot conclude that the government speech doctrine will apply,” the Tallahassee-based judge said. “On a developed record, there may be a different answer.”

It all started with a same-sex penguin pair

The legal drama began when school officials in Escambia and Lake counties removed “And Tango Makes Three” from shelves, citing state law. It’s a children’s book, based on a true story, about two male penguins that raise a chick together.

That resulted in a federal lawsuit from its authors, Peter Parnell and Justin Richardson, against those counties and Florida. An Escambia County elementary schooler joined them as a plaintiff.

They say that “And Tango Makes Three” was targeted because of its exploration of a same-sex relationship, violating the First Amendment. They also contend that it violates students’ right to receive information.

But, in an argument that First Amendment experts and advocates call extreme and chilling, the defendants shot back that public school libraries are “a forum for government speech,” not a “forum for free expression.”

“Public-school systems, including their libraries, convey the government’s message,” Florida Attorney General Ashley Moody wrote in a legal brief.

Those claims have also been used to counter an ongoing federal lawsuit filed by free expression group PEN America and Penguin Random House, the nation’s largest book publisher. Only Escambia County was named in that suit.

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Judge not convinced

Over the last couple of years, Gov. Ron DeSantis and the GOP-led Legislature have passed laws that have led to numerous book restrictions in schools.

In last week’s opinion, Winsor allowed the case to proceed, but dismissed the state and Lake County, which returned “And Tango Makes Three” to its shelves, as defendants.

Only the claims against the Escambia County School Board remain. Also remaining: the government speech question.

In legal filings contesting the defendants’ claim, the plaintiffs extensively point to the U.S. Supreme Court’s 1982 decision in Island Trees Union Free School District v. Pico. In that decision, justices ruled that school boards have “significant discretion to determine the content of their school libraries.” But it said that discretion “may not be exercised in a narrowly partisan or political manner.”

Moody contends that Pico’s plurality decision has no strength, especially since it predates court findings on government speech. She points to a decision that found the selection of public park monuments was government speech as an example.

“And because compiling library materials is government speech, the First Amendment does not bar the government from curating those materials based on content and viewpoint,” she wrote.

Winsor isn’t convinced one way or the other.

“The parties have not cited — and I have not found — any binding authority specifying the standard applicable here,” he said.

It’s unclear when a decision may be made. Winsor asked the parties to file a proposed litigation schedule in the next several weeks.