In an order that sets a strong precedent for keeping books on public school library shelves, the U.S. District Court for the Middle District of Florida has upheld the freedom to read in Penguin Random House v. Gibson. Filed in August 2024, the lawsuit challenges key provisions of Florida House Bill 1069, which was signed into law by Florida Governor Ron DeSantis in May 2023 and purports to bar “pornographic” materials and content that “depicts or describes sexual content” from school and classroom libraries.

As a result of HB 1069, Florida has made it possible for parents to register objections to public school materials. The challenged materials are then removed from K–12 student access, ostensibly for review and often on the basis of words and sentences taken out of context.

On August 13, Judge Carlos E. Mendoza issued orders on three motions for summary judgment, finding in favor of the plaintiffs on five of seven counts. “It is readily apparent to the Court that the statute fails strict scrutiny,” the Court determined. “The state’s prohibition of material that ‘describes sexual conduct’ is overbroad and unconstitutional.”

The judge ruled in favor of the plaintiffs across the board. Though the court declined to deem HB 1069 “facially overbroad,” the court accepted the plaintiffs’ recommendation to define the word “pornographic” as synonymous with the “harmful to minors” standard.

"This is a sweeping victory for the right to read, and for every student’s freedom to think, learn, and explore ideas,” declared Dan Novack, VP and associate general counsel, PRH, in a statement made on behalf of the plaintiff group. "We are especially heartened that the Court rejected the State’s dangerous claim that the First Amendment does not apply in school libraries." Novack continued: "The Court also struck down the State’s vague 'I know it when I see it' standard, reinforcing the essential role of librarians and educators in selecting books for students’ independent reading."

Other plaintiffs in the case include the other four Big Five publishers, Sourcebooks, the Authors Guild, five authors, and two parents of Florida students who found that Jack Kerouac’s On the Road and Toni Morrison’s The Bluest Eye had been pulled from shelves at their public high schools.

Author plaintiffs Julia Alvarez, Laurie Halse Anderson, John Green, Jodi Picoult, and Angie Thomas all submitted declarations that their novels had been deemed “unsuitable” for young readers “because fragments of their content were prohibited under HB 1069.”

In addition to declarations from the authors who attested that their work is not obscene, Volusia County School District education media specialist Christina Hackey submitted her own declaration that she has “never seen pornography or obscene materials in a public school library” including her own.

A Win for Publishers, Authors, and Readers

In the order, Judge Mendoza wrote that withdrawing materials from public school libraries abridges First Amendment rights. “It does not matter that school libraries are not compulsory,” he noted. “It also does not matter that a student may obtain the book elsewhere.”

Defendants in the case included State and School Board representatives, because the State crafted a "template objection form” for parental use, while district school boards took action to “remove the books on the local level.” The court noted that “it is apparent both sets of Defendants caused Plaintiffs’ injuries.”

Judge Mendoza put his decision in the context of other significant rulings around the freedom to read, among them PRH v. Robbins—a current lawsuit challenging Iowa Senate Bill 496 and the removal of hundreds of books from public schools—and the nearly 20-year-old decision in ACLU v. Miami-Dade County, concerning Miami public schools’ censorship of a children’s series that included a travel book titled Vamos a Cuba (A Visit to Cuba).

Terms including “pornographic,” “harmful to minors,” “inappropriate,” and “unsuitable for children” are scrutinized as imprecise in HB 1069 and the template objection form. “Given that obscene material as to minors is already prohibited under Florida law,” Judge Mendoza wrote, “these terms must, therefore, target non-obscene material. Thus, the applications of the law plainly slip into those barred by the First Amendment” and threaten protected speech.

He continued, “The Court must conclude that there is no constitutional application of a prohibition against books containing material that ‘describes sexual conduct,’” even though “the prohibition against ‘pornographic’ content can be constitutionally applied when it is construed as meaning harmful to minors.” Elsewhere in the order, the terms "pornographic" and "harmful to minors" were found to be used synonymously.

The court also compares HB 1069’s restrictions—which result from parents objecting to school library content—to the public library book removals that sparked Little v. Llano County (Texas). In a blow to free speech supporters, in that case the U.S. Court of Appeals for the Fifth Circuit ruled in June that a library’s collection decisions constitute government speech.

“Critical to the plurality in Little was that ‘libraries curate their collections for expressive purposes,’” Mendoza wrote, whereas many removals related to HB 1069 “are the objecting parents’ speech, not the government’s.” He added, “It is unclear whether the public would assume the government is speaking when they find the school library shelves emptier than before or if they would assume parents had spoken under this statutory scheme.”

Also related to government speech, Judge Mendoza borrows several key findings from the 2022 9–0 Supreme Court decision for the plaintiffs in Shurtleff v. City of Boston, in which a Christian group sued after being prevented from raising a ceremonial flag at Boston’s City Hall—then a customary practice for private groups. Citing Justice Samuel Alito’s concurrence in Shurtleff, Judge Mendoza notes that “facilitating speech by private persons cannot constitute government speech unless the government assigns a power to speak to those persons or appropriates the products of their expressive activity to express its own message.”

Judge Mendoza then applies the Shurtleff logic to the matter at hand, quoting directly from Justice Alito’s concurrence, which found that “censorship is not made constitutional by aggressive and direct application.”

“It is clear to the Court that the removal of library books without consideration of their overall value cannot be expressive activity amounting to government speech,” Judge Mendoza determined. “Slapping the label of government speech on book removals only serves to stifle the disfavored viewpoints. That way, the Supreme Court warns, lies danger.”

This article has been updated with additional information.