Students' First Amendment rights affirmed, but the state isn’t done with censorship

Students' First Amendment rights affirmed, but the state isn’t done with censorship

A federal judge has delivered a major win for free speech rights for some of our most vulnerable citizens, students whose access to reading material in recent years has been hampered by partisan attacks and rampant censorship. 

Judge Carlos Mendoza struck down provisions of Florida’s parental rights in education law (HB 1069) that have been used to remove thousands of books from public school libraries across the state, often at odds with district policies and even the state’s own agreements. 

The ruling reverts decisions about whether a book is appropriate for school libraries to the Miller Test, a Supreme Court precedent that requires evaluation to consider the whole book — not simply an excerpt taken out of context — to determine whether it is “harmful to minors.” A thorough review considers the literary, artistic, political scientific value for minors, community standards, and whether the material appeals to inappropriate interests that may be morbid or excessively sexual. Such tests had been largely absent in book reviews under HB 1069.

“A blanket content-based prohibition on materials, rather than one based on individualized curation, hardly expresses any intentional government message at all. Slapping the label of government speech on book removals only serves to stifle the disfavored viewpoints,” the judge’s order reads. 

Put another way, the order rejects the disjointed process used to evaluate books for removal because it favors some concerned citizens’ viewpoints over others. And the ruling acknowledges the need for expertise in making decisions about literary content for students and young readers, ensuring that those best trained in literary value are the ones determining it — not politicians.

“Historically, librarians curate their collections based on their sound discretion not based on decrees from on high,” the order reads. 

Without using the already legally upheld Miller Test, schools were faced with potential removal of classic books, such as The Color Purple and Anna Karenina, or even removal of books few would consider harmful to minors, such as the infamous editing of the book Unicorns are the Worst, after a parent complained that a cartoon goblin’s backside was pornographic. Such challenges often cherry-picked excerpts that, taken without additional context, may seem inappropriate for certain ages, but considered as part of the whole, carried intrinsic, artistic, literary or academic value. 

The order, quite simply, makes clear that book challenges cannot merely judge the book by its cover, or by a maliciously selected excerpt. 

Given the latest ruling, thousands of books have been needlessly prohibited from student access without careful consideration of their value. In June, the state banned 55 books, including three named in the latest judicial order as having been unconstitutionally restricted from students, further highlighting the need to return books to shelves and restore students’ rights.

And while the state has already indicated its intention to appeal, state leaders should consider the cost — not just in terms of taxpayer dollars wasted on baseless appeals, but in how continuing the fight for censorship diminishes one of our most sacred rights as Americans, the First Amendment. 

While the latest order no doubt acknowledges parents’ right to “direct the upbringing and education of” their children, state leaders pushing harmful censorship seem to have forgotten that already exists. Parents already have the right to determine what their child can and cannot read or otherwise view at school, and advocating for the freedom to read does not forfeit a parent’s right or responsibility to discuss and set boundaries with their children. But it does ensure other parents’ rights are not infringed by others or the government. By removing books entirely, parents who disagree with viewpoints driving censorship are effectively silenced. Florida cannot be dubbed “the freest state” if that freedom only applies to those who share a certain belief. 

And while protecting students’ rights to information is the top priority, it’s worth remembering that an appeal to this order would mean additional taxpayer dollars used to challenge our students’ First Amendment rights, as our state’s public schools remain chronically underfunded and our teachers remain among the lowest paid in the nation. 

Interested in how the language in this order can inform your local advocacy? Download our guide.

Want a quick overview of the ruling? See our key takeaways.

Need responses to the special interests that continue to lobby for more restrictions in the law? Here are some talking points.

Interested in reading what the Foundation for Intellectual Rights and Expression sent districts about the order? Download the version sent to Broward here.