The authors of “And Tango Makes Three”, a children’s book about gay penguins who raise a chick together, have lost their lawsuit against Florida’s Escambia and Lake Counties. The school boards of those counties removed the book from school libraries, citing “inappropriate content”. The lawsuit claimed that the schools violated the First Amendment by banning the book. However, U.S. District Judge Allen Winsor said that school libraries don’t apply as forums, and therefore the curation of books doesn’t impinge on First Amendment rights in schools. In the ruling on October 1st, Winsor wrote:
“Even if book curation is not government speech, the board still wins on the merits: when the government decides which books to choose, it is not creating a forum for others to speak, and it is not otherwise implicating Plaintiff’s First Amendment rights. The author plaintiffs have no First Amendment right to speak through the library, and (the student plaintiff) has no First Amendment right to receive the author plaintiffs’ message through the library.”
The director for American Library Association’s Office for Intellectual Freedom, Deborah Caldwell-Stone, argues that libraries in general are considered public forums for receiving information. She agrees that school libraries are designed to serve a “limited community” and are not open to the public, but stated:
“It is correct to say that a school library is a kind of nonpublic forum, but it doesn’t mean that the intended audience or user for that library loses its First Amendment rights, or that elected officials or administrators are no longer obligated to act in conformity with the First Amendment. If there’s viewpoint discrimination going on, that’s the one thing that’s always forbidden to any government under the First Amendment.”
In defense of this and other book bannings, Florida Governor Ron DeSantis has cited the legal doctrine of Government Speech, or the government’s right to present its own viewpoints without the need to provide equal time or a platform for opposing views.
