Florida Book-Removal Effort Runs Up Against Warning From Samuel Alito

In a filing in a case concerning Florida’s removal of books it considers inappropriate from schools, the attorney general of Florida, Ashley Moody, lays out a rationale for the state’s actions, saying that school libraries exist to “convey the government’s message” — an argument that runs counter to Justice Samuel Alito’s warning about “government speech.”The case, Pen America Center Inc. v. Escambia County School Board, concerns the school board’s decision to remove “And Tango Makes Three,” a children’s book about the true story of two male penguins at the Central Park Zoo that adopted and raised a chick together.Since the book’s publication in 2005, it has been a target of conservatives. According to the American Library Association, it was the most challenged book of 2008, meaning that it was the subject of the most complaints filed to libraries requesting the book be removed that year.At Escambia County, an English teacher at Northview High School, Vicki Bagget, challenged the book, adding it to her list of books she claims contain “explicit sexual content, graphic language, themes, vulgarity and political pushes.”In an interview with an independent journalist, Judd Legum, Ms. Bagget said that the book contains sexual “innuendo” and that if a child read the book, “that idea would pop into the second grader’s mind … that these are two people of the same sex that love each other.”In May, PEN America, the book’s publisher, Penguin Random House, and a group of authors and parents sued the Escambia County school board, alleging that its removal of books from the library was based on “disagreement with the ideas expressed in those books” and was a violation of the First Amendment.“In every decision to remove a book, the School Board has sided with a challenger expressing openly discriminatory bases for the challenge,” the group that brought the suit wrote. “These restrictions and removals have disproportionately targeted books by or about people of color and/or LGBTQ people.”In the filings for the case, which is scheduled to be argued this spring, Ms. Moody outlined an argument for why the case should be dismissed — one that hinges on the doctrine of “government speech.”The government speech doctrine maintains that “although the First Amendment’s Free Speech Clause limits government regulation of private speech, it does not restrict the government when the government speaks for itself,” according to Cornell Law School’s Legal Information Institute.Ms. Moody says that “public-school systems, including their libraries, convey the government’s message, and, when the government speaks,” it can choose to “regulate” its message, including by choosing not to speak or by removing speech of which “the government disapproves.”“Plaintiffs — who include the authors and publishers of certain books restricted by Defendant — are free to take their concerns to the ballot box,” Ms. Moody wrote.Ms. Moody’s argument, highlighted by the Tallahassee Democrat, drew immediate criticism. One unlikely critic of Ms. Moody’s argument, though, sits on the Supreme Court.Justice Alito, in a 1996 opinion on Matal v. Tam, wrote that the government speech doctrine, though “essential,” is “susceptible to danger misuse.” “If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints,” Justice Alito wrote. “For this reason, we must exercise great caution before extending our government-speech precedents.”In an amicus brief filed by 23 professors of law from around the country, the professors argue that expanding “the doctrine to cover such libraries cannot succeed” because doing so “contravenes the Supreme Court’s direct command.”“Importantly, the government speech doctrine only applies to state programs in which the government conveys an official message that the public would recognize as such,” the law professors write.In the filing, the professors cite one of the only Supreme Court cases concerning school libraries, Island Trees Union Free School District v. Pico, from 1982.In that case, the high court “concluded that school boards could not, given the nature and purpose of school libraries, order books removed from library shelves in order to deny students ‘access to ideas’ with which board members disagreed.”Pico was, in turn, decided on a precedent set by 1967’s Keyishian v. Board of Regents, where the court ruled that “students must always remain free to inquire, to study and to evaluate, and to gain new maturity and understanding,” and that the school library “is the principal locus of such freedom.”Similar arguments to Florida’s failed in a case in Arkansas that also concerned the removal of books from public libraries. The district judge who heard the case, Judge Timothy Brooks, said there was no precedent for such an expansion of government speech.“Defendants are unable to cite any legal precedent to suggest that the state may censor non-obscene materials in a public library because such censorship is a form of government speech,” Judge Brooks wrote.

Florida Book-Removal Effort Runs Up Against Warning From Samuel Alito

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