State Pushes Back in School Books Fight

By Jim Saunders, The News Service of Florida

TALLAHASSEE — Florida education leaders are trying to fend off a lawsuit filed by major publishing companies and authors over the removal of books from school libraries, disputing allegations that a controversial state law violates the First Amendment.

Attorney General Ashley Moody’s office Friday filed a 25-page motion arguing that claims in the lawsuit against State Board of Education members should be dismissed. Along with the state board members, the lawsuit also names as defendants members of the Orange County and Volusia County school boards.

The state’s motion, in part, said the “selection of public-school library books is government speech and therefore not subject to the First Amendment.”

“When the government selects materials to make available in a public-school library, it conveys that, in its view, those materials are of the ‘requisite and appropriate quality’ and will ‘be of the greatest direct benefit or interest to the community’ served,” the motion said, partially quoting a legal precedent. “The government, through public-school-library staff, effectively controls this message because it exercises final approval authority over book selection.”

Also, the motion said the plaintiffs’ First Amendment claims “fail because the government does not generally violate the First Amendment when it withdraws a benefit that merely facilitates the exercise of a constitutional right.”

“The First Amendment does not require the government to provide access to particular materials in public-school libraries or to have school libraries at all,” the state’s lawyers wrote. “The students are free to access those books elsewhere, and authors and publishers can still distribute their books to students through bookstores or other libraries.”

Six publishing companies, The Authors Guild, five authors and two parents filed the lawsuit Aug. 29 in federal court in Orlando. It is one of a series of lawsuits stemming from a 2023 state education law and related decisions by school districts to remove books from library shelves or to restrict access.

The lawsuit centers on parts of the law (HB 1069) that seek to prevent availability of reading material that is “pornographic” or “describes sexual content.”

The lawsuit said the plaintiffs “do not seek to prevent Florida school districts from ensuring that school libraries do not contain obscene books” but that the law is overbroad. It said the plaintiffs “take issue with the removal of books under the guise of ‘pornography’ that are not remotely obscene, resulting from the Florida State Board of Education’s unconstitutional construction of the term ‘pornographic.’”

“In enacting HB 1069, the state has mandated that school districts impose a regime of strict censorship in school libraries,” the lawsuit said. “HB 1069 requires school districts to remove library books without regard to their literary, artistic, political, scientific, or educational value when taken as a whole. As a result of HB 1069, hundreds of different titles have been removed from school libraries across the state.”

The lawsuit cited removals from library shelves of numerous books, such as “The Bluest Eye” by Toni Morrison and “Love in the Time of Cholera” by Gabriel Garcia Marquez. Both of those authors were awarded the Nobel Prize in Literature for their novels and other work.

In addition to disputing the First Amendment arguments, the state’s motion Friday raised other issues, including contending that the plaintiffs did not have legal standing to sue the State Board of Education members. The motion said that is because “any injury to plaintiffs” would stem from actions by school districts, not the state board.

Attorneys for the Orange County and Volusia County school boards also filed documents Friday providing brief answers and defenses to the lawsuit. As an example, both county school boards said that to the extent any materials were removed from public schools, “this was for the sole purpose of complying with Florida law.”

The plaintiffs in the case are publishing companies Penguin Random House LLC, Hachette Book Group, Inc., HarperCollins Publishers LLC, Macmillan Publishing Group, LLC, Simon & Schuster, LLC and Sourcebooks LLC; The Authors Guild; authors Julia Alvarez, John Green, Laurie Halse Anderson, Jodi Picoult and Angie Thomas; and parents Heidi Kellogg and Judith Anne Hayes.