A Florida judge suggests book bans in schools may be unconstitutional

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 who raise a chick together.


A federal judge is not convinced that removing books in schools is protected government speech, as Florida and some of its districts argue to justify banning titles with LGBTQ themes.

“By all accounts, school officials have considerable discretion in deciding which books should be available in school libraries,” Trump-appointed U.S. District Judge Allen Winsor wrote in an opinion last week. “But the question of how and to what extent the First Amendment limits this discretion is surprisingly unresolved.”

His ultimate decision could have implications for First Amendment law at a time when controversy over “book bans” is rife – and when Florida leads the nation in the number of titles removed from school libraries.

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

It all started with a pair of same-sex penguins

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

This led to a federal lawsuit by authors Peter Parnell and Justin Richardson against those counties and Florida. An Escambia County elementary school student joined them as a plaintiff.

They say “And Tango Makes Three” was targeted because it featured a same-sex relationship in violation of the First Amendment. They also claim that this violates the students' right to receive information.

But in an argument that experts and First Amendment advocates call extreme and chilling, the defendants countered that public school libraries are “a forum for government speech” and 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 were also used to counter an ongoing federal lawsuit filed by the free speech group PEN America and Penguin Random House, the country's largest book publisher. Only Escambia County was named in that lawsuit.

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Winsor listens to the arguments of the government speech: Judge listens to Florida's argument that textbook bans are protected government speech

Judge not convinced

In recent years, Gov. Ron DeSantis and the Republican-led Legislature have passed laws that have led to numerous book restrictions in schools.

In last week's statement, Winsor allowed the case to proceed but dismissed the state and Lake County, which put “And Tango Makes Three” back on the shelves, as defendants.

Only the claims against the Escambia County School Board remain. The question still remains: the government speech.

In the pleadings challenging the defendants' claim, the plaintiffs refer extensively to the 1982 U.S. Supreme Court decision in Island Trees Union Free School District v. Pico. In that decision, the justices ruled that school boards have “significant discretion in determining the contents of their school libraries.” However, it said discretion “shall not be exercised in a narrowly partisan or political manner.”

Moody contends that Pico's plurality decision has no force, particularly since it came before court rulings on government speech. As an example, she points to a decision that found that the selection of public park monuments was government speech.

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

Winsor is not convinced one way or the other.

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

It is unclear when a decision can be made. Winsor asked the parties to file a proposed trial schedule in the next few weeks.

This reporting content is supported through a partnership with Freedom Forum and Journalism Funding Partners. USA TODAY Network-Florida First Amendment reporter Douglas Soule can be reached at [email protected].

Anna Harden

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