In yet another case, Florida’s government is arguing that book removals in public schools are “government speech,” meaning they are unrestricted by the First Amendment.
It’s a controversial legal argument, which free speech advocates have called “authoritarian,” but one that the state has been particularly passionate about over the last year. Attorney General Ashley Moody’s office even recently sent a representative to make it on behalf of a Texas community’s public library.
In the latest instance, Moody’s office, representing top education officials appointed by Gov. Ron DeSantis, asked a federal judge to dismiss a new lawsuit — one of a multitude in Florida — filed over school bookshelf decisions.
“The selection of public-school-library books is government speech and therefore not subject to the First Amendment,” it said in a Friday filing.
“When the government speaks, it ‘can freely select the views that it wants to express, including choosing not to speak and speaking through the removal of speech that the government disapproves,’ ” the office continued, quoting another case.
Yet it’s unsettled case law, as Moody’s office admitted in the filing. But that means this and the other cases where the state has made the government speech argument have the potential to set a powerful precedent, perhaps forever altering First Amendment law and public bookshelf access.
The case at hand
The state’s latest government speech argument is in response to a September lawsuit filed in an Orlando federal court. U.S. District Judge Carlos Mendoza, appointed by former President Barack Obama, is presiding over the case.
In that lawsuit, six major book publishers and several prominent authors sued State Board of Education members and a couple of local school boards’ members over what they called “unconstitutional book banning.”
The plaintiffs accused a 2023 book objection law passed by Gov. Ron DeSantis and the Legislature’s GOP supermajority (HB 1069) of leading to hundreds of removals “with no consideration of the educational value of the work as a whole.”
One of the most-removed books by local school leaders, for example, is the acclaimed classic “The Handmaid’s Tale,” originally published in 1985 and reprinted in numerous editions since.
“If the State of Florida dislikes an author’s idea, it can offer a competing message,” those suing wrote. “It cannot suppress the disfavored message.”
The state’s defense of the law and the book removal decisions by school districts goes beyond the government speech argument. It also argues that governments don’t even have an obligation to “provide benefits” such as school libraries.
“Even apart from whether the selection (or removal) of school-library books is government speech, Plaintiffs’ First Amendment claims still 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,” it wrote.
The state also cites a landmark 1988 U.S. Supreme Court case, Hazelwood School District v. Kuhlmeier, that allowed schools to restrict student speech under certain circumstances. Representatives for the plaintiffs did not immediately respond to a request for comment.
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 [email protected]. On X: @DouglasSoule.
This post was originally published on here
