Free expression in one of our democracy’s most fundamental institutions

In denying a motion to dismiss our lawsuit against the Escambia County (Florida) School Board’s removal and restriction of books from public school libraries, a federal district judge made clear that our case was about the First Amendment and censorship.

This means that the lawsuit will now likely proceed to discovery where we will find out more about why the school board targeted particular books for removal. The school board’s strongest defense, that there is no constitutional question at play, does not hold water. Our clients — free expression organization PEN America, publisher Penguin Random House, and authors, parents, and students — will now see their day in court. 

It also makes it clear that this lawsuit is about democracy. 

At the heart of the case, Escambia County School Board removed 10 books against the recommendations of its own review committees, and restricted over 150 other books. In a vibrant democracy like ours, this removal and restriction of books already on school library shelves can really only be called one thing: censorship.

This censorship is incompatible with the marketplace of ideas that Americans rightfully cherish. And without those diverse ideas, we are failing to prepare our children to be thoughtful, engaged citizens ready for the realities of the world they will inherit, along with the other people in it. Removing books from public school libraries is, quite simply, ruinous for our kids and our democracy both. 

If successful, efforts to remove books based on viewpoint will grant government the power to warp and undermine the very democracy it was meant to serve. The courts have been clear as day on this:

• “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, rather than through any kind of authoritative selection.’” Tinker v. Des Moines Independent Community School District (1969). 
• “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. . . . If there are any circumstances which permit an exception, they do not now occur to us.” West Virginia Board of Education v. Barnette (1943).

The defendant sought to elide these concerns, and the First Amendment entirely, by claiming that the entirety of the school library was “government speech” and that the Constitution therefore does not apply. It is a radical argument, and U.S. District Judge Kent Wetherell summarily dismissed it.

The selection of books in libraries does not constitute government speech, Wetherell wrote in his order denying the defendant’s motion to dismiss the case. He noted that “the traditional purpose of a library is to provide information on a broad range of subjects and viewpoints, [and] the Court simply fails to see how any reasonable person would view the contents of the school library (or any library for that matter) as the government’s endorsement of the views expressed in the books on the library’s shelves.”

Our case is cleared to proceed. The judge also urged the school board to return as many books as possible to the shelves and to find a way to reach resolution in order to spare the time and expense that litigation poses.

“Make no mistake, this was a win for democracy. After targeting books centering people of color and LGBTQ+ individuals and ignoring its own review committees’ recommendations, the government baldly asserted that this could not be viewpoint discrimination because the First Amendment does not apply to school libraries,” said Shalini Goel Agarwal, Protect Democracy counsel. “The federal court ruling makes clear that they are wrong. Censorship does not serve students today, who must be prepared to be the citizens of our democracy tomorrow.”