Florida school book fight gets green light from federal judge, case on First Amendment rights to proceed. (Jim Saunders, NSoF, via Orlando Sentinel)

Our former Assistant City Attorney in St. Augustine, Florida has made all Americans proud! Kudos to U.S. District Court Judge Carlos Eduardo Mendoza in Orlando, who has ruled for authors, publishers, in Florida school book ban case. We remember Assistant City Attorney Carlos Eduardo Mendoza?  He was an Assistant City Attorney in the City of St. Augustine, 2011-2014.  Now a federal judge in Orlando, he ruled against Florida Governor RONALD DION DeSANTIS and his angry attacks on school libraries. 

Three cheers!  Three cheers for Judge Carlos Eduardo Mendoza: his growth as an Article III judge, and for Article III. 

From News Service of Florida and Jim Saunders, via Orlando Sentinel: 

Florida school book fight gets green light from federal judge, case on First Amendment rights to proceed

Angie Thomas and John Green, authors of the books shown among others, are among those who filed a lawsuit challenging a 2023 Florida law that heightens scrutiny of books in public schools. Those who sued say the law violates the First Amendment. A judge on Friday refused to throw out the federal lawsuit, as the state wanted. (Leslie Postal/Orlando Sentinel).

By JIM SAUNDERS | News Service of Florida

PUBLISHED: March 3, 2025 at 1:02 PM EST

ALLAHASSEE — With major publishing companies and authors arguing a 2023 state law violates First Amendment rights, a federal judge Friday refused to dismiss a lawsuit against members of the State Board of Education over the removal of school library books.

U.S. District Judge Carlos Mendoza rejected a state motion to dismiss the case, which also names as defendants members of the Orange County and Volusia County school boards.

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 the 2023 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 conduct.” The publishing companies, authors and other plaintiffs contend, for example, that the prohibition on material that describes sexual conduct is overly broad in violation of the First Amendment.

The state’s attorneys raised a series of arguments in seeking dismissal, including that the selection of library books is “government speech” and not subject to the First Amendment. Also, the motion to dismiss the case said the “government does not generally violate the First Amendment when it withdraws a benefit that merely facilitates the exercise of a constitutional right.”

But in turning down such arguments, Mendoza wrote that the state fails “to grapple with the fact that discretion is what this statute removes.” Books can be removed if parents object to their content.

“What the court is faced with today is a regime built around not a librarian’s sound judgment but rather any parent’s objection, however capricious,” Mendoza wrote. “What plaintiffs appear to allege is that school librarians have been stripped of their broad discretion because they must remove objected to books that do not contain obscene material and may not undertake a ‘holistic evaluation or consideration of their literary, artistic, political, or scientific value.’”

The state board members’ motion also contended that any “alleged injury is not fairly traceable to (them) and thus not redressable by a decision against them because they only have general supervisory authority over the true actors removing books — the local school boards,” Mendoza wrote.

But he rejected that argument because the state board approved a form that is used to object to books.

“Who caused the injury? While it may be local officials that physically remove the books, it is state defendants’ interpretation of the statute — contained in the objection form — that plaintiffs challenge in this action,” Mendoza wrote.

He added, “Because the objection form is ‘prescribed by State Board of Education rule,’ pursuant to (state law), state defendants are at the root of plaintiffs’ alleged injury.”

Friday’s decision does not resolve the underlying case. Mendoza has scheduled a May 21 hearing on motions for summary judgment.

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.

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.

----

Judge Mendoza's order:

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

PENGUIN RANDOM HOUSE

LLC, HACHETTE BOOK

GROUP, INC., HARPERCOLLINS

PUBLISHERS LLC,

MACMILLAN PUBLISHING

GROUP, LLC, SIMON &

SCHUSTER, LLC,

SOURCEBOOKS LLC, THE

AUTHORS GUILD, JULIA

ALVAREZ, JOHN GREEN,

LAURIE HALSE ANDERSON,

JODI PICOULT, ANGIE

THOMAS, HEIDI KELLOGG and

JUDITH ANNE HAYES,

Plaintiffs,

v. Case No. 6:24-cv-1573-CEM-RMN

BEN GIBSON, RYAN PETTY,

ESTHER BYRD, GRAZIE P

CHRISTIE, KELLY GARCIA,

MARYLYNN MAGAR, TERESA

JACOBS, ANGIE GALLO,

MARIA SALAMANCA, ALICIA

FARRANT, PAM GOULD, VICKI-

ELAINE FELDER, KAREN

CASTOR DENTEL, MELISSA

BYRD, JAMIE HAYNES, ANITA

BURNETTE, RUBEN COLON,

CARL PERSIS, and JESSIE

THOMPSON,

Defendants.

/

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ORDER

THIS CAUSE is before the Court on Defendants Ben Gibson, Ryan Petty,

Esther Byrd, Grazie P Christie, Kelly Garcia, and Marylynn Magar’s (collectively,

“State Defendants”) Motion to Dismiss (“Motion,” Doc. 85-1), to which Plaintiffs

filed a Response (Doc. 94), and State Defendants filed a Reply (Doc. 100). For the

reasons set forth below, the Motion will be denied.

I. BACKGROUND

In 2023, the State of Florida passed HB 1069. (Compl., Doc. 1, at 22). The

bill amends section 1006.28 of the Florida Statutes, which permits the removal of

school library books if parents object to their content. (See HB 1069, Doc. 1-1, at

12–21). Under the amended statute, the State Board of Education must create an

objection form to facilitate the objection process. (Id. at 13). Parents may object to

material that “[i]s pornographic or prohibited under s. 847.012” or “[d]epicts or

describes sexual conduct as defined in s. 847.001(19).” (Id. at 13–14); Fla. Stat

§ 1006.28(2)(a)2.b.(I), (II). Plaintiffs challenge the definitions State Defendants

have used in construing the statute when promulgating the template objection form.

(Doc. 1 at 4–6). “The part of the form that lists the bases for objections ‘must not be

modified by school districts.’” (Id. at 18 (quoting Fla. Admin. Code r. 6A-7.0714)).

Among others, the template form State Defendants created lists the following bases

for an objection: “[t]he material is pornographic”; “[t]he material is prohibited under

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Section 847.012, F.S.”; and “[t]he material depicts or describes sexual conduct as

defined in Section 847.001(19), F.S.” (Specific Material Objection Template, Doc.

1-2, at 3). Plaintiffs bring three counts seeking declaratory relief against State

Defendants. In Count I, Plaintiffs challenge the prohibition of material that

“describes sexual conduct” as an impermissible overbroad content-based restriction

in violation of the First Amendment. (Doc. 1 at 60–66). In Count II, Plaintiffs seek

a declaration that the term “pornographic” is synonymous with “harmful to minors.”

(Id. at 66–69). In Count III, which is pled in the alternative to Count II, Plaintiffs

challenge the prohibition of material that is “pornographic” as an impermissible

overbroad content-based restriction in violation of the First Amendment. (Id. at 69–

74). State Defendants now move to dismiss Counts I through III pursuant to Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6).

II. LEGAL STANDARD

State Defendants begin by arguing there is no justiciable controversy. Flast v.

Cohen, 392 U.S. 83, 95 (1968) (“[N]o justiciable controversy is presented . . . when

the parties are asking for any advisory opinion . . . and when there is no standing to

maintain the action.”). A challenge to Article III standing implicates subject matter

jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–60 (1992). Likewise,

subject matter jurisdiction is implicated if the Court is asked to issue an advisory

opinion. Flast, 392 U.S. at 96 (“[T]he implicit policies embodied in Article III, and

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not history alone, impose the rule against advisory opinions on federal courts.”).

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss

the claims against it for “lack of subject-matter jurisdiction.”

“Attacks on subject matter jurisdiction . . . come in two forms: ‘facial attacks’

and ‘factual attacks.’” Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A., 104 F.3d

1256, 1260–61 (11th Cir. 1997) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529

(11th Cir. 1990)). Here, Defendants make only a facial attack. “Facial attacks

challenge subject matter jurisdiction based on the allegations in the complaint, and

the district court takes the allegations as true in deciding whether to grant the

motion.” Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003).

The remainder of the Motion argues that Plaintiffs have failed to state a claim,

which is analyzed under Federal Rule of Civil Procedure 12(b)(6). “A pleading that

states a claim for relief must contain . . . a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Pursuant to

Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint

for “failure to state a claim upon which relief can be granted.” In determining

whether to dismiss under Rule 12(b)(6), a court accepts the factual allegations in the

complaint as true and construes them in a light most favorable to the non-moving

party. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1269 (11th Cir. 2009).

Nonetheless, “the tenet that a court must accept as true all of the allegations

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contained in a complaint is inapplicable to legal conclusions,” and “[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Furthermore, “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. Ordinarily, in deciding a motion to dismiss, “[t]he scope of the review

must be limited to the four corners of the complaint.” St. George v. Pinellas Cnty.,

285 F.3d 1334, 1337 (11th Cir. 2002).

III. ANALYSIS

A. Standing

The jurisdiction of federal courts is limited to “Cases” or “Controversies.”

U.S. Const. art. III. “A proper case or controversy exists only when at least one

plaintiff establishes that she has standing to sue—i.e., that she has suffered, or will

suffer, an injury that is concrete, particularized, and actual or imminent; fairly

traceable to the challenged action; and redressable by a favorable ruling.” Murthy v.

Missouri, 603 U.S. 43, 57 (2024) (internal citation and quotation marks omitted)

(cleaned up). “The latter two requirements—traceability and redressability—often

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travel together.” Support Working Animals, Inc. v. Gov. of Fla., 8 F.4th 1198, 1200

(11th Cir. 2021).

State Defendants first argue that Plaintiffs’ alleged injury is not fairly

traceable to and thus not redressable by a decision against them because they only

have general supervisory authority over the true actors removing books—the local

school boards. (Doc. 85-1 at 6–9). “When traceability and redressability are at stake,

the key questions are who caused the injury and how it can be remedied.” City of S.

Miami v. Gov. of Fla., 65 F.4th 631, 640 (11th Cir. 2023). And “even harms that

flow indirectly from the action in question can be said to be ‘fairly traceable’ to that

action for standing purposes.” Focus on the Fam. v. Pinellas Suncoast Transit Auth.,

344 F.3d 1263, 1273 (11th Cir. 2003). In rejoinder, Plaintiffs point to State

Defendants’ role in creating the objection form as required by the challenged state

statute and that State Defendants’ interpretation of the statute is at the root of

Plaintiff’s alleged injury here. (Doc. 94 at 17–18).

State Defendants’ reliance on City of South Miami is misplaced. That case

involved the plaintiffs “challeng[ing] a state law that require[d] local law

enforcement to cooperate with federal immigration officials.” 65 F.4th at 634. The

Eleventh Circuit held that the plaintiffs’ “alleged injury [wa]s neither traceable to

the governor or attorney general nor redressable by a judgment against them because

they do not enforce the challenged provisions” because the law only “operate[d] on

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officials at the local level.” Id. at 634, 641. While the law in City of South Miami

only allowed “the governor and attorney general to sue state and local officers to

enjoin violations of the statute,” id. at 635, the statute here both operates on State

Defendants and affords them far greater authority to implement and enforce the law.

Who caused the injury? While it may be local officials that physically remove

the books, it is State Defendants’ interpretation of the statute—contained in the

objection form—that Plaintiffs challenge in this action. The form “requires the

objector to ‘[i]dentify the basis for your objection’ under Section 1006.28 and lists

multiple separate bases for objections for the objector to select, including that the

book (a) is ‘pornographic,’ (b) is ‘prohibited under s. 847.012, F.S.’ as harmful to

minors, or (c) ‘depicts or describes sexual conduct as defined in s. 847.001(19),

F.S.’” (Doc. 1 at 18 (alteration in original)). Plaintiffs seek two forms of declaratory

relief against State Defendants. First, that “describes sexual conduct” is an overbroad

content-based restriction under the First Amendment. (Id. at 59). Second, that

“pornographic” is synonymous with “harmful to minors,” (id. at 65), or in the

alternative, that “pornographic” is an overbroad content-based restriction under the

First Amendment, (id. at 68). Because the objection form is “prescribed by State

Board of Education rule,” pursuant to section 1006.28(2)(a)2. of the Florida Statutes,

State Defendants are at the root of Plaintiffs’ alleged injury.

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How can it be remedied? Local school boards have no power to change the

objection form of their own accord because the form “must not be modified” apart

from specific enumerated allowances to assist in user-friendliness. Fla. Admin. Code

r. 6A-7.0714(3) (c), (d); (see also Doc. 1 at 18). Thus, the remedy sought by

Plaintiffs amounts to a demand that the language in the objection form be altered.

And that cannot be done unless State Defendants do so.

Furthermore, the “State Board of Education must approve or reject the

recommended decision” of an appointed special magistrate if a parent disagreed with

a school board’s decision on an objection. Fla. Stat. § 1006.28(2)(a)6. And unlike

City of South Miami, the statute also imposes an additional duty on State Defendants

because it notes “[t]he State Board of Education shall adopt rules, including forms,

necessary to implement this subparagraph.” Id. Therefore, Plaintiffs’ alleged injury

is both fairly traceable to the challenged action and redressable by a favorable ruling.

State Defendants then argue that any possibility of their enforcing the

challenged provisions is too removed in the chain of contingencies for Plaintiffs to

allege an injury. (Doc. 94 at 9–10). However, that argument overlooks State

Defendants’ role in promulgating the challenged language in the objection form and

adopting rules to implement the statute at issue, which the Court has addressed

above. Furthermore, Plaintiffs allege several books have already been removed

pursuant to that statute. (See, e.g., Doc. 1 at 3 (“Maya Angelou’s I Know Why the

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Caged Bird Sings, Ralph Ellison’s Invisible Man, Ernest Hemingway’s For Whom

the Bell Tolls, Zora Neale Hurston’s Their Eyes Were Watching God, Aldous

Huxley’s Brave New World, Toni Morrison’s The Bluest Eye, Leo Tolstoy’s Anna

Karenina, Richard Wright’s Native Son, Kurt Vonnegut’s Slaughter-House Five,

and Alice Walker’s The Color Purple are some of the many books that the State of

Florida has required be removed from school libraries.”)).

Even if Plaintiffs sought pre-enforcement review, “a [First Amendment]

plaintiff satisfies the injury-in-fact requirement where he alleges ‘an intention to

engage in a course of conduct arguably affected with a constitutional interest, but

proscribed by a statute, and there exists a credible threat of prosecution thereunder.’”

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting Babbitt v.

Farm Workers, 442 U. S. 289, 298 (1979)). Here, author and publisher Plaintiffs

seek to provide students access to books in a public school library that may be

removed under the challenged statute, and parent Plaintiffs want their children to

have access to those books. (Doc. 1 at 13–17). State Defendants implement the

challenged statute and have ultimate review authority over a school board’s decision.

(See id. at 28).

Lastly, State Defendants make an argument that “the First Amendment right

to information does not grant ‘the right to sue over someone else’s censorship’—

here, the alleged censorship of authors—merely because the plaintiff ‘claim[s] an

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interest in that person’s speech.’” (Doc. 100 at 5 (quoting Murthy, 603 U.S. at 75)).

This is wrong. The quoted material from Murthy v. Missouri addressed plaintiffs’

standing argument under their argument that they have a “right to listen” to other

social-media users. Id. at 74–75.

Censorship of social-media posts is readily distinguishable from that of

published authors. See Minarcini v. Strongsville City School Dist., 541 F.2d 577,

583 (6th Cir. 1976) (finding “right of students to receive information which they and

their teachers desire them to have” and standing for student plaintiffs to challenge

the removal of school library books). The Supreme Court has “identified a

cognizable injury . . . where the listener has a concrete, specific connection to the

speaker.” Murthy, 603 U.S. at 75. Just as “prescription-drug consumers had an

interest in challenging the prohibition on advertising the price of those drugs,” id.

(citing Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,

425 U.S. 748, 756–57 (1976)), parents have an interest in challenging the prohibition

of school library books they and their children desire to read. Thus, Plaintiffs have

standing.

B. Advisory Opinion

State Defendants argue that Plaintiffs ask the Court for an advisory opinion in

Count II because the Declaratory Judgment Act does not provide a standalone cause

of action. (Doc. 85-1 at 11). “As is well known, the federal courts established

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pursuant to Article III of the Constitution do not render advisory opinions. For

adjudication of constitutional issues, ‘concrete legal issues, presented in actual cases,

not abstractions,’ are requisite. This is as true of declaratory judgments as any other

field.” United Public Workers v. Mitchell, 330 U.S. 75, 89 (1947) (footnotes

omitted). Thus, the ban on advisory opinions stems from Article III’s case or

controversy requirement.

Likewise, the Declaratory Judgment Act provides that “[i]n a case of actual

controversy within its jurisdiction, . . . any court of the United States, upon the filing

of an appropriate pleading, may declare the rights and other legal relations of any

interested party seeking such declaration, whether or not further relief is or could be

sought. 28 U.S.C. § 2201. That is, all that must exist for a court to render declaratory

relief is what must exist in every case—an Article III case or controversy. Here, there

is. See supra Section III.A.

In Count II, Plaintiffs seek a declaration that “the term ‘pornographic’ as used

in section 1006.28 is synonymous with the term ‘harmful to minors.’” (Doc. 1 at 69).

On its face, Plaintiffs request looks rather like the relief sought in Mitchell. There,

the plaintiffs sought a declaration that a sentence in the Hatch Act preventing

government employees from acting as poll watchers was unconstitutional, and the

Supreme Court found no justiciable controversy. 330 U.S. at 86–91. The Court

distinguished that particular circumstance from others, characterizing the threat of

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harm in Mitchell as a “general threat by officials to enforce those laws which they

are charged to administer” rather than a “direct threat of punishment against a named

organization for a completed act that made . . . [other] cases justiciable.” Id. at 88.

Here, the Court is faced—at the least—with a situation where Plaintiffs are

experiencing a direct threat of enforcement against them. Plaintiffs allege books

have been and are being removed from public school libraries across the state. (See,

e.g., Doc.1 at 3, 13–17). The objection form containing the interpretation of the

statute Plaintiffs challenge in Count II is promulgated by State Defendants and

cannot be altered by the local school boards. Fla. Admin. Code r. 6A-7.0714(3) (c),

(d); (see also Doc. 1 at 18). Therefore, the declaratory relief sought would resolve

the case or controversy before the Court.

Furthermore, under Florida law, “[g]enerally speaking, individuals may

challenge the validity of a statute in a declaratory judgment action.” Wilson v. Cnty.

of Orange, 881 So. 2d 625, 631 (5th DCA 2004) (citing Martinez v. Scanlan, 582

So. 2d 1167 (Fla. 1991)); see also Fla. Stat. § 86.021 (“Any person . . . whose rights,

status, or other equitable or legal relations are affected by a statute, or any regulation

made under statutory authority . . . may have determined any question of

construction or validity arising under such statute[ or] regulation . . . and obtain a

declaration of rights, status, or other equitable or legal relations thereunder.”).

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State Defendants proceed to argue that Plaintiffs’ request also runs afoul of

the Eleventh Amendment as an intrusion on state sovereignty. (Doc. 85-1 at 11–13).

Relying on Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984),

State Defendants contend that if the Court grants Plaintiffs the redress they seek, it

will “instruct[ ] state officials on how to conform their conduct to state law,” id. at

106. That is not so. If the Court finds for Plaintiffs on Count II and issues the sought

declaration, it will only find State Defendants’ interpretation of section 1006.28 is

in violation of the United States Constitution. (See Doc. 1 at 68). That would not

violate the Eleventh Amendment because “a suit challenging the constitutionality of

a state official’s action is not one against the State.” Pennhurst, 465 U.S. at 102–03

(explaining the Supreme Court’s holding in Ex parte Young, 209 U.S. 123 (1908),

and subsequent history).

Any declaration issued would ultimately instruct State Defendants on how to

conform their conduct to the restrictions imposed by the First Amendment,

incorporated against the states by the Fourteenth Amendment, not state law and not

the state constitution. Neither of which may violate the United States Constitution.

See U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United

States . . . shall be the supreme Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary

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notwithstanding.”). Therefore, Plaintiffs request neither an advisory opinion nor

relief that violates the Eleventh Amendment. Count II survives, for now.

C. Shotgun Pleading

Beyond Federal Rule of Civil Procedure 8(a)(2)’s requirement that a pleading

contain “a short and plain statement of the claim showing that the pleader is entitled

to relief,” Rule 10(b) requires a party to “state its claims . . . in numbered paragraphs,

each limited as far as practicable to a single set of circumstances.” “The failure to

identify claims with sufficient clarity to enable the defendant to frame a responsive

pleading constitutes a ‘shotgun pleading.’” Beckwith v. Bellsouth Telecomms. Inc.,

146 F. App’x 368, 371 (11th Cir. 2005) (quoting Byrne v. Nezhat, 261 F.3d 1075,

1029–30 (11th Cir. 2001)).

The Eleventh Circuit has defined four types of shotgun pleadings. “The most

common type—by a long shot—is a complaint containing multiple counts where

each count adopts the allegations of all preceding counts, causing each successive

count to carry all that came before and the last count to be a combination of the entire

complaint.” Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321

(11th Cir. 2015). The second most common type “is a complaint that . . . is guilty of

the venial sin of being replete with conclusory, vague, and immaterial facts not

obviously connected to any particular cause of action.” Id. at 1322. “The third type

of shotgun pleading is one that commits the sin of not separating into a different

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count each cause of action or claim for relief.” Id. at 1322–23. “Fourth, and finally,

there is the relatively rare sin of asserting multiple claims against multiple

defendants without specifying which of the defendants are responsible for which

acts or omissions, or which of the defendants the claim is brought against.” Id. at

1323.

Initially, State Defendants attempt to assert the complaint is some version of

the most common type of shotgun pleading, (Doc. 85-1 at 2–3), relying on Clifford

v. Federman, 855 F. App’x 525, 529 (11th Cir. 2021). In Clifford,

“the majority of

the 52 counts incorporated almost the entirety of the fact section of the complaint,

consisting of 249 paragraphs and 104 pages.” Id. Here, each of the 7 counts

incorporates 163 paragraphs over 58 pages, and the factual allegations span 106

paragraphs. However, each count does not “carry all that came before and the last

count [is not] a combination of the entire complaint.” Barmapov v. Amuial, 986 F.3d

1321, 1325 (11th Cir. 2021) (quoting Weiland, 792 F.3d at 1321). Despite State

Defendants’ arguments, their thorough and detailed Motion addressing the claims

brought by Plaintiffs belies any argument that the complaint is a shotgun pleading.

See Weiland, 792 F.3d at 1323 (“The unifying characteristic of all types of shotgun

pleadings is that they fail to one degree or another, and in one way or another, to

give the defendants adequate notice of the claims against them and the grounds upon

which each claim rests.”).

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Next, State Defendants aver the complaint commits the second sin. They

provide only a single example of this purported violation, noting Plaintiffs did not

identify which school districts allegedly removed certain books and how those

removals were relevant to the claims against State Defendants. (Doc. 85-1 at 4).

However, Plaintiffs have explained that their claims against State Defendants stem

from “the supervision and authority of the State Defendants” in the book removal

process. (Doc. 1 at 25). The Complaint is also not “rife with immaterial factual

allegations.” Barmapov, 986 F.3d at 1325 (explaining allegations about certain

defendants alleged criminal history were “irrelevant” and noting other

“inconsequential details”). And neither is it a “rambling ‘shotgun’ pleading that is

so disorganized and ambiguous that it is almost impossible to discern precisely what

it is that these [Plaintiffs] are claiming.” Cramer v. Florida, 117 F.3d 1258, 1261

(11th Cir. 1997).1

Finally, State Defendants argue Count I commits the third sin because within

the First Amendment overbreadth cause of action is an allegation regarding

interference with the students’ First Amendment right to receive information. (Doc.

85-1 at 5). However, Count I is brought by both the authors and publishers as well

1 Another reason to reject this argument is the other Defendants have been able to parse the

complaint, filing answers, (Doc. Nos. 81 and 82), and amended answers, (Doc. Nos. 87 and 88).

Cf. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1359 n.9 (11th Cir. 1997) (finding a

shotgun pleading where “[m]any of the factual allegations appear to relate to only one or two

counts, or to none of the counts at all” and “a reader of the complaint must speculate as to which

factual allegations pertain to which count”).

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as parents, on behalf of their student children. As noted above, the Supreme Court

has “permitted First Amendment claims by those who did not themselves intend to

engage in speech, but instead wanted to challenge a restriction on speech they

desired to hear.” Renne v. Geary, 501 U.S. 312, 319 (1991); see also Kleindienst v.

Mandel, 408 U.S. 753, 762–63 (1972) (“This freedom (of speech and

press) . . . necessarily protects the right to receive . . . .” (alternation in original)).

Furthermore, “Federal Rule of Civil Procedure 10(b) requires parties to limit claims

‘as far as practicable to a single set of circumstances,’ and to state in a separate count

or defense ‘each claim founded on a separate transaction or occurrence . . . .’ The

separation of claims, however, is required by Rule 10(b) ‘only when necessary to

facilitate a clear presentation.’” Amegy Bank Nat’l Ass’n v. Deutsche Bank Corp.,

917 F. Supp. 2d 1228, 1232–33 (M.D. Fla. 2013) (quoting Wright & Miller, 5A Fed.

Prac. & Proc. Civ. § 1324 (3d ed.)). “The [overbreadth] [ ] claim is inextricably tied

to the [right to receive information] claim and the two claims relate to a single set of

circumstances.” Id. Therefore, the Complaint will not be dismissed as a shotgun

pleading.

D. Failure to State a Claim

“There is perhaps no more important place for guarding free speech principles

than in our Nation’s schools.” ACLU of Fla. v. Mia.-Dade Cnty. Sch. Bd., 557 F.3d

1177, 1235 (11th Cir. 2009). State Defendants make three arguments that HB 1069

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does not violate the First Amendment. First, selection of public library books is

government speech. (Doc. 85-1 at 13–21). Second, the government has no obligation

to provide school libraries, which they characterize as a gratuitous benefit. (Id. at

21–23). Third, even if the First Amendment applied here, Plaintiffs would only be

entitled to rational basis review and would fail under that standard. (Id. at 23–25).

At this stage, each argument fails.

1. Government Speech

“If private speech could be passed off as government speech by simply

affixing a government seal of approval, government could silence or muffle the

expression of disfavored viewpoints.” Matal v. Tam, 582 U.S. 218, 235 (2017).

“Because characterizing speech as government speech strips it of all First

Amendment protection under the Free Speech Clause, we do not do so lightly.”

Mech v. Sch. Bd. of Palm Beach Cnty., Fla., 806 F.3d 1070, 1074 (11th Cir. 2015)

(internal citation and quotation marks omitted).

In Shurtleff v. City of Boston, the Supreme Court recently outlined a “holistic

inquiry” for courts to determine if the government intends to speak, which is guided

by consideration of the following factors: (1) “the history of the expression at issue”;

(2) “the public’s likely perception as to who (the government or a private person) is

speaking”; and (3) “the extent to which the government has actively shaped or

controlled the expression.” 596 U.S. 243, 252 (2022). The Eleventh Circuit has

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considered a corresponding list of factors: history, endorsement, and control. See

Cambridge Christian Sch., Inc. v. Fla. High Sch. Athletic Ass’n, Inc., 942 F.3d 1215,

1230 (11th Cir. 2019).

Although the Eleventh Circuit has yet to address the issue before the Court,

its sister circuit has in GLBT Youth in Iowa School Task Force v. Reynolds, 114 F.4th

660, 667 (8th Cir. 2024). There, the Eighth Circuit applied the Supreme Court’s

approach in Shurtleff to reject arguments that removing books from public school

libraries was government speech, id., distinguishing the case upon which State

Defendants rely: Pleasant Grove City v. Summum, 555 U.S. 460 (2009). In Summum,

the Court held that “the placement of a permanent monument in a public park is best

viewed as a form of government speech.” Id. at 464. But the Eighth Circuit found

“reliance on that case unavailing as public school libraries do not share the

characteristics of monuments in a park.” Reynolds, 114 F.4th at 667.

Furthermore, “[f]acilitating speech by private persons cannot constitute

government speech unless the government assigns a power to speak to those persons

or appropriates the products of their expressive activity to express its own message.”

Shurtleff, 596 U.S. at 271 (Alito, J. concurring). And “[f]or the adopted expression

to qualify as the government’s, the private party must alienate control over the

medium of expression to the government. And government actors must put the

medium to use to intentionally express a government message. Otherwise, the

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government is simply providing a forum for private parties to submit their own

productions and usual First Amendment principles apply.” Id. at 270–71 (internal

citations omitted).

In the past, however, the D.C. Circuit has indicated that “[w]ith respect to the

public library, the government speaks through its selection of which books to put on

the shelves and which books to exclude.” People for the Ethical Treatment of

Animals, Inc. v. Gittens, 414 F.3d 23, 28 (D.C. Cir. 2005); see also Bryant v. Gates,

532 F.3d 888, 898 (D.C. Cir. 2008) (Kavanaugh, J. concurring) (“As the case law

makes clear, ‘government speech’ can include not only the words of government

officials but also ‘compilation of the speech of third parties’ by government entities

such as libraries, broadcasters, newspapers, museums, schools, and the like.” (citing

Gittens, 414 F.3d at 28)). State Defendants argue this Court should follow the D.C.

Circuit’s approach because there is no distinction between removing and collecting

books. (Doc. 100 at 3). After having just relied on the dissenting arguments in Board

of Education v. Pico, 457 U.S. 853 (1982), for that proposition—in the same

breath—State Defendants take issue with Plaintiffs’ citations to Pico, noting that the

Eleventh Circuit has stated the decision has no precedential value. (Id. at 3–4). State

Defendants cannot have their cake and eat it too.

While the more recent persuasive authority favors Plaintiffs, “the factors that

the Eleventh Circuit has used to determine whether something is government

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speech—e.g., history, endorsement, control—are fact-intensive and generally not

amenable to resolution at the motion to dismiss stage.” PEN Am. Ctr., Inc. v.

Escambia Cnty. Sch. Bd., 711 F. Supp. 3d 1325, 1331 (N.D. Fla. 2024) (internal

citation omitted). And given the similarity to the Shurtleff inquiry, to make the

finding State Defendants seek, the Court must be provided a “robust enough record

to determine whether [the collection of books selected for a school library]

constitutes government speech.” Gundy v. City of Jacksonville, 50 F.4th 60, 77 (11th

Cir. 2022). At this stage, the Court cannot find that the selection or removal of books

in a public school library is government speech.

2. Government Subsidy

Next, State Defendants argue that removing books from a public school

library does not violate the First Amendment because the State is only withdrawing

a benefit that facilitates First Amendment rights. (Doc. 85-1 at 21). State Defendants

are correct that “a legislature’s decision not to subsidize the exercise of a

fundamental right does not infringe the right, and thus is not subject to strict

scrutiny.” Regan v. Tax’n With Representation of Wash., 461 U.S. 540, 549 (1983).

However, the case law cited by State Defendants is inapposite.

In Ysursa v. Pocatello Education Association, the Court rejected a First

Amendment challenge to a state law that banned payroll deductions for union

political activities. 555 U.S. 353, 355 (2009). The Court explained that although

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“publicly administered payroll deductions for political purposes can enhance the

unions’ exercise of First Amendment rights . . . the State’s decision not to do so is

not an abridgment of the unions’ speech; they are free to engage in such speech as

they see fit. They simply are barred from enlisting the State in support of that

endeavor.” Id. at 359. Likewise, State Defendants argue that because students may

access the removed books and the authors and publishers may provide students those

books through other avenues, the restriction does not infringe upon their First

Amendment rights. That is incorrect.

First, the statute does not evenhandedly withdraw access to public school

libraries or particular books throughout the state as did the law in Ysursa by

prohibiting payroll deductions for union political activity. See Zykan v. Warsaw

Community School Corp., 631 F.2d 1300, 1308 (7th Cir. 1980) (explaining an

administrator may not “remove a book from the library as part of a purge of all

material offensive to a single, exclusive perception of the way of the world, any more

than he or she may originally stock the library on this basis”). Second, speech is

being restricted here, not funding.2 The availability of the removed books from other

sources does not alleviate this fact.

2 State Defendants also cite to Rust v. Sullivan, 500 U.S. 173 (1991). However, that case

was entirely about funding. Id. at 193 (“The Government can, without violating the Constitution,

selectively fund a program to encourage certain activities it believes to be in the public interest,

without at the same time funding an alternative program which seeks to deal with the problem in

another way.”).

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“Restraint on expression may not generally be justified by the fact that there

may be other times, places, or circumstances available for such expression.”

Minarcini, 541 F.2d at 582. The Sixth Circuit elaborated in regard to school library

books as follows:

If one of the English teachers considered Joseph Heller’s

Catch 22 to be one of the more important modern

American novels (as, indeed, at least one did), we assume

that no one would dispute that the First Amendment’s

protection of academic freedom would protect both his

right to say so in class and his students’ right to hear him

and to find and read the book. Obviously, the students’

success in this last endeavor would be greatly hindered by

the fact that the book sought had been removed from the

school library. The removal of books from a school library

is a much more serious burden upon freedom of classroom

discussion than the action found unconstitutional in Tinker

v. Des Moines Independent Community School District.

3

Id. (citation omitted).

State Defendants also argue that Plaintiffs fail to acknowledge that “[t]o fulfill

their traditional missions, public libraries must have broad discretion to decide what

material to provide to their patrons.” United States v. Am. Libr. Ass’n, 539 U.S. 194,

204 (2003). However, it is State Defendants that fail to grapple with the fact that

discretion is what this statute removes. What the Court is faced with today is a

regime built around not a librarian’s sound judgment but rather any parent’s

3 In that case, the Supreme Court found students’ wearing of black armbands in protest of

the Vietnam War was protected speech under the First Amendment where “[t]hey neither

interrupted school activities nor sought to intrude in the school affairs or the lives of others.” 393

U.S. 503, 514 (1969).

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objection, however capricious. What Plaintiffs appear to allege is that school

librarians have been stripped of their broad discretion because they must remove

objected to books that do not contain obscene material and may not undertake a

“holistic evaluation or consideration of their literary, artistic, political, or scientific

value.” (Doc. 1 at 32, 35–36). Therefore, the Court finds State Defendants’

government subsidy argument unpersuasive.

3. Standard of Review

Finally, State Defendants argue that even if the First Amendment applied here,

Plaintiffs would only be able to receive rational basis review under Hazelwood

School District v. Kuhlmeier, 484 U.S. 260 (1988), and their arguments fail under

that standard. (Doc. 85-1 at 23). In Hazelwood, the Court held “that educators do not

offend the First Amendment by exercising editorial control over the style and content

of student speech in school-sponsored expressive activities so long as their actions

are reasonably related to legitimate pedagogical concerns.” Id. at 273. Plaintiffs

argue that such argument is premature and incorrect. (Doc. 94 at 16).

In ACLU of Florida v. Miami-Dade County School Board, where the plaintiffs

challenged the removal of single book from a school library, 557 F.3d at 1182–83,

the court explained that “[t]he argument against applying the Hazelwood standard

here is that this is not a school newspaper situation, and the speech at issue does not

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form part of a course of study in a school’s curriculum. This is a school library book

case.” ACLU of Fla., 557 F.3d at 1202. As is the case here.

While the court left the issue unresolved there, the Eleventh Circuit previously

interpreted the Hazelwood decision as “an application of [the Cornelius] standard to

a curricular program.” Searcey v. Harris, 888 F.2d 1314, 1319 (11th Cir. 1989). In

Cornelius v. NAACP Legal Defense Fund, the Supreme Court explained that in a

nonpublic forum, First Amendment restrictions may “be based on subject matter and

speaker identity so long as the distinctions are reasonable in light of the purposes

served by the forum and are viewpoint neutral.” 473 U.S. 788, 806 (1985). And

while the Eleventh Circuit has applied Hazelwood to uphold the removal of optional

readings that contained “explicit sexuality and excessively vulgar language” from

an elective course, that was because the books were specifically related to the

curriculum. Virgil v. Sch. Bd. of Columbia Cnty., Fla., 862 F.2d 1517, 1521–23 (11th

Cir. 1989). Important to Virgil’s holding, the court “note[d] that the disputed

materials have not been banned from the school. The Humanities textbook and other

adaptations of Lysistrata and The Miller’s Tale are available in the school library.”

Id. at 1525. So, it is not a foregone conclusion that Plaintiffs lose under Hazelwood

as State Defendants contend. Nevertheless, at this stage, the Court will not decide

whether the standard applies in this case. Therefore, State Defendants’ Motion will

be denied.

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IV. CONCLUSION

Accordingly, it is ORDERED and ADJUDGED that State Defendants’

Motion to Dismiss (Doc. 85-1) is DENIED.

DONE and ORDERED in Orlando, Florida on February 28, 2025.

Copies furnished to:

Counsel of Record

Page 26 of 26

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More here:

Filing of lawsuit by authors, publishers and authors in 2024:  https://cleanupcityofstaugustine.blogspot.com/2024/08/annals-of-desantistan-major-publishers.html

United States Senate confirms Judge Mendoa in 2014:  https://cleanupcityofstaugustine.blogspot.com/2022/06/june-24-2014-former-prosecutor-and.html