Judge hears Florida's argument that school book bans are protected government speech

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Trying to get a better understanding of Florida's argument that public school libraries are meant to convey the government's message and that book removals are protected government speech, U.S. District Judge Allen Winsor posed a hypothetical.

During a Wednesday hearing in Tallahassee, the Trump-appointed judge asked a representative of Florida Attorney General Ashley Moody's office if, for example, the state believed an official could selectively remove school library books written by Democratic politicians.

Attorney Bridget O'Hickey replied in the affirmative. If Floridians didn't like it, she added, they could vote that official out.

Moody's office is defending Education Secretary Manny Diaz Jr. and members of the Florida Board of Education in a lawsuit filed over the removal of "And Tango Makes Three" from schools in Escambia and Lake counties. It's a children's book, based on a true story, about two male penguins that raise a chick together.

Judge Allen Winsor is presiding over the corruption trial of Andrew Gillum.
Judge Allen Winsor is presiding over the corruption trial of Andrew Gillum.

On Wednesday, Winsor heard arguments from both sides on whether the case should be dismissed.

While hurling multiple arguments at the plaintiffs — who are authors Justin Richardson and Peter Parnell as well as a third grade student who wants to access the book — the county and state defendants are putting a lot of weight in the government speech one. Moody even filed a legal brief promoting it in a separate book removal lawsuit that the state wasn't even named in.

That's despite a multitude of First Amendment experts and advocates raising concerns about the idea — some calling it "authoritarianism."

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The government's 'government speech' argument

Winsor also asked O'Hickey if she thought the government speech doctrine applied to public libraries.

She indicated that was the state's take, but said it applied more forcefully to public school libraries. O'Hickey pointed to recent government speech court decisions, including one about park statues.

Meanwhile, plaintiff attorney Anna Neill said extending that doctrine so far was "extremely dangerous."

Winsor repeatedly stated throughout the hearing that the case law regarding government speech and school libraries was undeveloped, calling the lack of cases on it "peculiar." Talking through it on the bench, he weighed two extremes, wondering about a middle-ground.

One was if a court decision went all in for the government speech argument, possibly creating something like the hypothetical situation he presented to the state attorney.

Winsor expressed reservations about the other side of the coin too, critical of it leading to a situation where every decision about every book had to be subjected to First Amendment scrutiny. He speculated that a school district deciding not to put a pro-Adolf Hitler book on its shelves or removing antiquated books from the '50s with racist ideologies would also be considered "viewpoint discrimination."

The plaintiffs allege that about the removal of "And Tango Makes Three," saying it was targeted because of its exploration of a same-sex relationship, violating the First Amendment. They also say it violates students’ right to receive information and is unconstitutionally vague and broad.

The state's been tied into the case because of the Parental Rights in Education law, called "Don't Say Gay" by critics, which restricts classroom instruction on gender identity and instruction.

For months after the first version of the law took effect in July 2022, multiple counties removed books with LGBTQ themes because of it, like "And Tango Makes Three."

Then, in legal filings, Moody said it didn’t apply to school library books. Free speech group PEN America alerted school districts to this via September letters.

Lake County’s school board brought “And Tango Makes Three” back, but it remains banned in Escambia County schools. The litigation, of course, continues against both.

Winsor said he intends to issue a ruling on the motion to dismiss the case "hopefully before too long."

This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA Today Network-Florida First Amendment reporter Douglas Soule is based in Tallahassee, Fla. He can be reached at DSoule@gannett.com. On X: @DouglasSoule.

This article originally appeared on Tallahassee Democrat: Florida tells judge that removing books is protected government speech