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Florida judge rules against book ban-opposed parents alleging censorship, discrimination
Douglas SouleA federal judge has dismissed a lawsuit accusing the Florida government of discriminating against those opposed to the surge of school library book removalsacross the state.
A 2023 law and its implementing regulations created a state process for parents to appeal when a school board decides to keep their challenged books on the shelves. But that process doesn't extend to parents who want to contest a school board's decision to remove a book.
Parents of public school students sued, arguing to U.S. District Judge Allen Winsor that the inconsistency violated the First Amendment, penalizing them based on viewpoint.
What is viewpoint discrimination? From the First Amendment Encyclopedia | Free Speech Center
In a Monday order, Winsor – who was appointed by President Donald Trump and took the bench in 2019 – dismissed the case. He gave the plaintiffs the option to file an amended complaint in two weeks but added that it's "unlikely any amendment will cure the defects."
A big defect, Winsor wrote, is that the process is "available only to parents who had their own objection denied, making any exclusion based on a speaker’s status, not his viewpoint."
"Although it is unlawful for local districts to retain prohibited books, it is not unlawful for them to exclude books that are not prohibited," he also said. "Thus, it makes sense that the State Review Process does not offer parents wanting books retained an opportunity to appeal or otherwise access the process."
Florida Freedom to Read Project, one of Florida's most-outspoken book access organizations, has since criticized the order.
"This decision, as well as the federal Department of Education's announcement that they will no longer investigate complaints of discriminatory censorship, are very troubling as a select few are given the privilege to redefine what materials are 'appropriate' for all our children," said Raegan Miller, the group's director of development and finance, in a statement.
She's referring to how the U.S. Department of Education under Trump announced it was ending "Biden's book ban hoax," dismissing 11 complaints about book removals. DeSantis himself has used the same language to describe book removals in public schools, even as Florida leads the nation in them.
"For the 95% of parents that haven’t limited student access in the library, where and when do we get to have a say in what’s appropriate?' Miller continued.
The Florida Freedom to Read Project isn't the only group unhappy with the decision.
"The decision to dismiss the case is disappointing, and we are considering how to proceed," said Keisha Mulfort, a spokesperson for the American Civil Liberties Union of Florida, in a statement.
The ACLU of Florida had joined advocacy groups Democracy Forward and the Southern Poverty Law Center in representing the parent plaintiffs: Anne Watts Tressler and Nancy Tray of St. Johns County and Stephana Ferrell of Orange County.
Ferrell is notably also the co-founder and director of research and insight for the Florida Freedom to Read Project.
Representatives for Democracy Forward and the Southern Poverty Law Center didn't immediately respond to requests for comment. Neither did a representative for those sued: the State Board of Education as well as its members individually and Education Commissioner Manny Diaz Jr., who is appointed by Gov. Ron DeSantis.
Winsor rebuffs government speech argument
Of note in the decision, Winsor rebuffed the state's government speech argument.Under the government speech doctrine, the government has the right to promote its own views without being required to provide equal time or a platform for opposing views.
"(We) maintain the position that the removal of material from public school libraries is government speech for which it has the complete discretion and freedom to speak through the removal of speech with which it disapproves," state attorneys had argued in a filing.
The state has repeatedly made such legal claims over the last couple of years. It's unsettled case law, so how judges ultimately rule could potentially set powerful precedent, forever altering First Amendment law and public bookshelf access.
But it doesn't appear any such precedent will be set in this case.
"Defendants argue that the book removals constitute government speech, meaning the First Amendment is not implicated," wrote Winsor. "Plaintiffs challenge their inability to access the State Review Process to offer their own speech; they do not challenge any book-removal decisions in this litigation."
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.
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