Preserving the Right to Read in Florida
I rarely get to celebrate good news lately but today is one of those days. In one of the most important right to read lawsuits filed in recent years, the District Court has ruled that Florida’s book banning law is unconstitutional in all important respects. While I will still express my pessimism at the end, for today we should celebrate what is an excellent opinion.
Florida passed its book banning law in 2023 but phrased it as facilitiating “parental” challenges - I put parental in quote marks because challenges recently are almost always brought by small number of conservative activists with often no children in the affected schools. But the law required schools to have policies and forms for book challenges, which most already did, but also required the removal of any book if it did one of two things. (1) All books that are obscene as to minors under state law are prohibited. This was not a change, it has always been part of Florida state law and pretty much every other state. As I’ve posted about before, obscenity is unprotected speech but in the late 1960s SCOTUS adopted a compromise recognizing that what is obscene for adults may not be identical to what is obscene for teenagers (and for that matter material not obscene for teenagers may be obscene for 3 year olds). So states are allowed to punish material as obscene for minors where it would be protected for adults. This, as we will see is unimportant to the case legally but is important politically. The key change was (2) the order that anything that “Depicts or describes sexual conduct” be removed from state libraries. Under this provision hundreds of books have been purged from Florida school libraries (and certainly more than a few public libraries but that is a separate issue).
The court rejects the favorite pro-censorship argument of conservatives: that the books to have or not have in a library are governmental speech. As I’ve noted, more than a few Republican judges are enamored of this argument, but here the court did what I’ve complained of courts ignoring for too long, it considered the actual role of the libary. “Historically, librarians curate their collections based on their sound discretion not based on decrees from on high” and, quoting another decision “the traditional purpose of a library is to provide information on a broad range of subjects.” Giving a good look at the precedent around governmental speech, the decision concluded that there was no governmental expression in such removals and that “Slapping the label of government speech on book removals only serves to stifle the disfavored viewpoint, something SCOTUS has warned about.
The court then turned to the core First Amendment argument. Importantly, Board of Education v. Pico (1982) plays no role in this decision. Pico is still the only SCOTUS opinion discussing the constitutional implications of book removals but it is a mess. Here, it is ignored because the Eleventh Circuit, which covers Florida, said about 20 years ago that Pico doesn’t have precedential value. This is actually good for the strategy of the plaintiffs challenging the book banning law because the court moves the discussion to much more certain footing. The court then discusses three different constitutional standards and while it suggests that the highest is probably appropriate, it will apply a more minimal standard of “non-public forum” analysis which states that government can reserve such a forum “for its intended purposes … as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” As the purpose, noted above, of a library is to provide information on a broad range of topics and viewpoints, this test as used by this court focuses on whether the regulation of speech is reasonable.
The court admits that precedent establishes that the obscenity for minor law is perfectly valid, as the plaintiffs did not contest, but that actually serves to highlight the censorship in this law. As obscene material is already prohibited in Florida schools, the court has to wonder why the extra provision on depicting sexual conduct was added. The fact that sexual conduct was not defined is a particular problem and shows that it was inviting parents to adopt an “I know it when I see it” standard but that type of standard is unconstitutional. Since obscene material for minors is already prohibited in Florida, the change must “target non-obscene material.” There is no constitutional application of such a provision especially as it failed to explain what depict or describe meant. Would describing two characters as “spending the night together” count - to many challengers the answer is yes. Or does a book have to incorporate crude slang, “cock,” “pussy” and the like? Failing to define these terms has already lead to removal of dozens of prize winning books, many of them tested on the AP Literature test and “None of these books are obscene.” The book banning law, thus, failed to clear the relatively low bar of the nonpublic forum test and is unconstitutional.
Of course, what the opinion misses is what Florida is trying to do is to join the campaign to void modern obscenity law. As I wrote in this article, conservative book challengers have sought to reject the key holding of modern obscenity law that sex and obscenity are not synonymous. For at least minors, these folks see any mention of sex as dangerous under the idiotic belief that teens have sex because they read about it in a book or heard a teacher talk about it in sex ed class. The deeply anti-speech Senator Mike Lee (R-UT) is expressing another attack along these lines with an attempt to write a federal definition of obscenity that is facially unconstitutional. Florida’s law was a further attack on this core principle. The state wants to purge dangerous material like mentions that people have sex. And, though the court here did not engage with it, this is a key element in the Republican anti-LGBTQ agenda. It seeks to define LGBTQ people and topics as inherently sexual and since sex is obscene (for minors at least), to them, those topics must be purged as well.
This opinion is a wonderful rejection of terrible Republican book banning, no doubt about it. But my pessimism has to come through. I’m pessimistic for two interrelated reasons. First, this decision will be appealed and the quite conservative federal circuit courts may be hostile to all of this for a variety of potential legal reasons but ultimately because of ideology. Now the court here did play things strategically by heavily quoting Justice Alito, one of the most conservative SCOTUS justices, to support his conclusions, but I’m unconvinced that this will matter. And that ties into the second reason: the Republican Party, as exemplified by the second Trump Administration, is increasingly committed to lawlessness. The Constitution may prohibit such book banning, but real world politics means that a Republcian state government committed to its ideological of censorship, white supremacy, and anti-LGBTQ beliefs will use all kinds of extra legal pressure to achieve the same goal. Funding threats are the easiest examples but also threats to jobs, not to mention personal threats to librarians and school officials, will all come to bear.
But for now I’m happy to celebrate a good victory and hope it holds up long enough for constitutional order to reemerge.
