In a contentious legal battle, Florida’s government is making the audacious claim that school districts have a First Amendment right to remove LGBTQ books or any other book from their libraries. This assertion has ignited a firestorm of debate among First Amendment experts and advocates, with many deeming it extreme and chilling.

The controversial claim: Florida schools are for ‘government’s message’

The heart of the argument in Florida lies in the belief that public school libraries are platforms for the government’s message rather than forums for free expression. Florida Attorney General Ashley Moody states, “Public-school systems, including their libraries, convey the government’s message.” This stance has also found support in legal circles, with lawyers for the school boards in Escambia and Lake counties echoing similar sentiments.

Legal battles unfold: removal of LGBTQ books sparks lawsuits

At the centre of this controversy are two lawsuits filed in the US District Court for the Northern District of Florida, both stemming from the removal of books in school libraries. Notably, “And Tango Makes Three,” a children’s book depicting two male penguins raising a chick together, was removed from both districts. While Lake County’s school board eventually reinstated the book, Escambia County continues to keep it off its library shelves. Litigation persists against both school boards.

One case includes plaintiffs Justin Richardson and Peter Parnell, the authors of “And Tango Makes Three,” joined by a third-grade student. The other case, filed against Escambia County’s school board, is backed by the free expression group PEN America, Penguin Random House, authors, and parents of students. Despite Florida not being named in the latter case, the state has submitted a brief supporting the county’s position and the government speech argument.

Read: Florida school board: toss Penguin Random House book ban lawsuit

Those suing argue that the defendants are violating students’ First Amendment rights to receive information and unconstitutionally removing books due to LGBTQ and race-related themes. In contrast, the defendants contend that school library content decisions are protected by the First Amendment.

The outcome of these cases could have profound consequences for book access in schools and First Amendment law. Peter Bromberg, the associate director of EveryLibrary, a pro-library, anti-book banning organisation, warns that it could “upend 100 years of established First Amendment precedent.” American fascism scholar and historian Ruth Ben-Ghiat called the move “straight-up authoritarianism.”

Shalini Goel Agarwal, counsel for Protect Democracy, criticises the state’s position as a “sweeping argument” that grants school officials unchecked discretion to decide library content. The lawsuit alleges that the School Board has disproportionately targeted books by or about people of colour and LGBTQ individuals.

Implications and consequences: the future of First Amendment rights in schools

Florida has witnessed a surge in book restrictions and removals in schools over the last couple of years, leading to PEN America ranking the state as the nation’s leader in book bans. However, the interpretation of Florida’s laws on this matter has varied widely among school districts.

The argument that Escambia County’s actions constitute protected government speech could extend beyond books, potentially affecting other areas where people expect the First Amendment to apply. This has raised concerns about the erosion of free speech protections.

Read: Florida school district ‘bans books with LGBTQ characters entirely’

A group of 23 constitutional scholars from across the nation has filed a brief opposing the government speech assertions, cautioning against adopting such an aggressive interpretation. They also argue that viewing libraries as platforms for official messaging contradicts their fundamental nature and purpose.

Deborah Caldwell-Stone, director of the American Library Association’s Office for Intellectual Freedom, emphasises the importance of preventing viewpoint discrimination by government entities, including school boards, as a fundamental constitutional principle.

While there is acknowledgment that the current judiciary landscape contains more uncertainties, the argument against Florida’s position rests on what many consider to be fundamental constitutional principles. The landmark decision in Island Trees Union Free School District v. Pico underscores that school boards have discretion over library content but should avoid partisan or political bias. Importantly, no court has ruled that libraries, including school libraries, are constitution-free zones where government officials can discriminate based on viewpoint.

As these cases unfold, they are poised to shape the future of First Amendment jurisprudence in schools and have far-reaching implications for students’ access to diverse perspectives in educational settings.