Republican attorneys general from 21 states are trying to help sway a federal appeals court to uphold a 2023 Florida law that led to books being removed from school libraries.
The attorneys general filed a friend-of-the-court brief filed last week at the 11th U.S. Circuit Court of Appeals as Florida challenges a district judge’s August ruling that said the law is “overbroad and unconstitutional.”
The brief echoed arguments by Florida Attorney General James Uthmeier that decisions about what books go on school library shelves involve “government speech” and, as a result, are not regulated by the First Amendment.
Much of the case has focused on part of the law that seeks to prevent the availability of reading material that “describes sexual conduct.”
“Refusing to recognize that public-library curation decisions are government speech subverts the democratic process,” said last week’s brief, led by Arkansas Attorney General Tim Griffin. “Rather than having democratically accountable officials decide the content of public-school libraries, unelected federal courts will become the decisionmakers forced to referee countless disputes between students, parents, publishers, and various associations over what books should and should not be in schools. This case therefore also implicates (the 21) states’ interest in preserving our constitutional structure.”
Uthmeier’s office went to the Atlanta-based appeals court in September after U.S. District Judge Carlos Mendoza sided with publishing companies, authors and parents challenging the constitutionality of the law. The named defendants in the case are members of the State Board of Education and the school boards in Orange and Volusia counties.
Mendoza, who is based in Orlando, wrote that the law “does not evaluate the work to determine if it has any holistic value” and “does not specify what level of detail ‘describes sexual conduct.’”
“As plaintiffs note, it is unclear what the statute actually prohibits,” Mendoza wrote. “It might forbid material that states characters ‘spent the night together’ or ‘made love.’ Perhaps not. Defendants do not attempt to explain how the statute should work.”
The law (HB 1069) set up a process in which parents could object to reading material that is “pornographic” or “depicts or describes sexual conduct.” It required books that received such objections to be removed within five days and to remain unavailable until the objections were resolved.
Battles have played out in various school districts during the past few years about removing books from library shelves. The lawsuit cited removals of books such as “The Bluest Eye” by Toni Morrison and “Love in the Time of Cholera” by Gabriel Garcia Marquez. Both of those authors were awarded the Nobel Prize in Literature for their novels and other work.
In last week’s brief, the attorneys general from the other states argued that allowing parents to object to books and requiring school boards to consider the objections “does not change the fact that, at the end of the day, it is the government making the ultimate curation decision.”
Also, it said the law doesn’t affect students’ ability to receive information.
“HB 1069 does not prevent or prohibit students from receiving those books from their parents (or any source other than public-school libraries), nor does it restrict student speech,” the brief said. “It simply prohibits age-inappropriate books describing sex acts from being in K-12 public-school libraries at taxpayer expense.”
But in his August ruling, Mendoza cited the role of parental objections in driving decisions to remove books.
“To be sure, parents have the right to ‘direct the upbringing and education of children,’ but the government cannot repackage their speech and pass it off as its own,” he wrote, partially quoting a U.S. Supreme Court precedent.
Along with Arkansas, attorneys general signing on to last week’s brief were from Alabama, Alaska, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah and West Virginia.
The plaintiffs in the lawsuit are publishing companies Penguin Random House LLC, Hachette Book Group, Inc., HarperCollins Publishers LLC, Macmillan Publishing Group, LLC, Simon & Schuster, LLC and Sourcebooks LLC; The Authors Guild; authors Julia Alvarez, John Green, Laurie Halse Anderson, Jodi Picoult and Angie Thomas; and parents Heidi Kellogg and Judith Anne Hayes.