Summary

A Florida Federal Court held that the First Amendment bars the removal of books from school libraries based on hostility to their ideas or viewpoint, and that book authors and book publishers have standing to challenge the removal of their books from school libraries. The court affirmed the principle originally articulated by a plurality in Board of Education v. Pico, that the discretion afforded to school officials over the contents of school libraries does not include the right to remove books based on viewpoint discrimination.

In an important victory for students, parents, authors, and the First Amendment, on January 12, 2024, Judge T. Kent Wetherell, II of the Northern District of Florida rejected a bid to dismiss a lawsuit challenging decisions by the School Board of Escambia County, Florida, to remove or restrict access to hundreds of library books. In doing so, the court held that the First Amendment bars school boards from removing books from libraries simply because they disagree with their ideas or messages. This decision is a critical step in legal efforts to address the nationwide move to purge books from school libraries based on ideological objections to their contents.

The lawsuit, filed in May 2023, challenges decisions by the Escambia County School Board (the School Board) to remove or restrict student access to over 160 library books, including classics like Kurt Vonnegut’s Slaughterhouse-Five and Toni Morrison’s The Bluest Eye. The plaintiffs include parents of children attending schools in the Escambia County School District; authors of books that have been removed or restricted in the School District; Penguin Random House LLC, a publisher of many of the removed or restricted books; and PEN American Center, Inc., a member-based organization dedicated to advancing and protecting the rights of authors. The Plaintiffs asserted claims under the First Amendment and the equal protection clause of the Fourteenth Amendment based on allegations that the School Board was removing or restricting access to books because they address racial discrimination and/or LGBTQ+ issues. At the time it was filed, it was the first lawsuit in which authors or publishers challenged the removal of their books from libraries.

In moving to dismiss the case, the School Board asserted that it has absolute discretion to remove books from its libraries for ideological reasons. It claimed that decisions about what books to include in a school library constitute the government’s own speech, and are, therefore, not subject to any constitutional constraints. That argument was echoed by the State of Florida, which participated in the motion-to-dismiss proceedings as an amicus in support of the School Board. The School Board also contended that none of the Plaintiffs had standing to challenge its decisions.

Though the court dismissed the Plaintiffs’ equal protection claim, it rejected all of the School Board’s and State of Florida’s arguments with respect to the First Amendment. The court held that their “government speech” argument was inconsistent with “the traditional purpose of a library . . . to provide information on a broad range of subjects and viewpoints.” It then held that “school officials cannot remove books solely because they disagree with the views expressed in the books but they can make content-based decisions based on legitimate pedagogical concerns.” Finally, the court held that the Plaintiffs had “plausibly alleged that Defendant’s removal/restrictions . . . do not pass constitutional muster under that standard because the decisions were based on ‘ideological objections to [the books’] content or disagreement with their messages or themes, rather than for pedagogical reasons.’”

The court’s First Amendment analysis represented an affirmation of the principles articulated in the Supreme Court’s plurality decision in Board of Education v. Pico, 457 U.S. 853 (1982). In that case, the Supreme Court stated that, while school boards have discretion to manage their library collections based on considerations of “educational suitability,” they cannot remove books for narrow political or ideological reasons, or simply because of disagreement with their ideas. Both the School Board and State of Florida had urged the Court to reject Pico as lacking any precedential force. While the court acknowledged that Pico was only a plurality decision, it also held that the standard it articulated was broadly consistent with First Amendment law, including the standards that apply to efforts to exclude speech from nonpublic forums.

The court also held that each of the Plaintiffs in the case has standing. With regard to the author plaintiffs and Penguin Random House, the court explained that they have standing because they have alleged that the removal or restriction of “books they wrote or published deprives them of the target audience for their books and a previously available forum for the speech embodied in those books.” The court also held that PEN America had standing to challenge the book removals and restrictions both because those removals and restrictions implicate the First Amendment rights of its members and because the School Board’s actions have required it to divert resources away from other projects to address the book removal issue. The case will now proceed to discovery on the merits of the First Amendment claims.

Lynn Oberlander, Paul Safier, Shawn Summers, and Kirsten Fehlan of Ballard Spahr are representing the Plaintiffs in this case, along with Shalina Agrawal, Kristy Parker, and John Langford of Protect Democracy.

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