Federal Judge Clears Way for Publishers’ Lawsuit Against Florida and Volusia Boards of Education Over Banned Books

With major publishing companies and authors arguing a 2023 state law violates First Amendment rights, a federal judge Friday refused to dismiss a lawsuit against members of the State Board of Education over the removal of school library books.

U.S. District Judge Carlos Mendoza, appointed by President Obama, rejected a state motion to dismiss the case, which also names as defendants members of the Orange County and Volusia County school boards.




Six publishing companies, The Authors Guild, five authors and two parents filed the lawsuit Aug. 29 in federal court in Orlando. It is one of a series of lawsuits stemming from the 2023 education law and related decisions by school districts to remove books from library shelves or to restrict access.

The lawsuit centers on parts of the law (HB 1069) that seek to prevent availability of reading material that is “pornographic” or “describes sexual conduct.” The publishing companies, authors and other plaintiffs contend, for example, that the prohibition on material that describes sexual conduct is overly broad in violation of the First Amendment.

The state’s attorneys raised a series of arguments in seeking dismissal, including that the selection of library books is “government speech” and not subject to the First Amendment. Also, the motion to dismiss the case said the “government does not generally violate the First Amendment when it withdraws a benefit that merely facilitates the exercise of a constitutional right.”

But in turning down such arguments, Mendoza wrote that the state fails “to grapple with the fact that discretion is what this statute removes.” Books can be removed if parents object to their content.

“What the court is faced with today is a regime built around not a librarian’s sound judgment but rather any parent’s objection, however capricious,” Mendoza wrote. “What plaintiffs appear to allege is that school librarians have been stripped of their broad discretion because they must remove objected to books that do not contain obscene material and may not undertake a ‘holistic evaluation or consideration of their literary, artistic, political, or scientific value.’”

The state board members’ motion also contended that any “alleged injury is not fairly traceable to (them) and thus not redressable by a decision against them because they only have general supervisory authority over the true actors removing books — the local school boards,” Mendoza wrote.

But he rejected that argument because the state board approved a form that is used to object to books.

“Who caused the injury? While it may be local officials that physically remove the books, it is state defendants’ interpretation of the statute — contained in the objection form — that plaintiffs challenge in this action,” Mendoza wrote.




He added, “Because the objection form is ‘prescribed by State Board of Education rule,’ pursuant to (state law), state defendants are at the root of plaintiffs’ alleged injury.”

Friday’s decision does not resolve the underlying case. Mendoza has scheduled a May 21 hearing on motions for summary judgment.

The lawsuit cited removals from library shelves of numerous 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.

The plaintiffs in the case 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.

–Jim Saunders, News Service of Florida