Judge Strikes Down Florida Book Ban Law

Forbes

20 hours ago

In 2023, Florida's legislators passed HB 1069, a bill that allowed for the removal from schools of any book that 'depicts or describes sexual conduct," requiring the book to be pulled from the school once an objection was filed by any county resident. It also protected the right to read excerpts from challenged works at board meetings.
The law is vague and broad and included no room for considering the literary merit of the work, and so the result was a wave of book bans across the state. One district banned the Maurice Sendak classic 'In The Night Kitchen' because one illustration includes a boys bare butt. The Orange County Sentinel reported on an astonishing list of 673 books that Orange County Schools pulled. The list includes popular authors like John Green and Stephen King as well as classics such as the plays of Aristophenes and John Milton's epic Paradise Lost.
Six publishers, the Author's Guild, five suthors, two students, and two parents filed suit against the law in 2024, and a decision was issued by Judge Carlos Mendoza of the U.S. Middle District Court of Florida on August 13.
Mendoza landed heavily in favor of the plaintiffs, finding several problems with the law.
One is that the law is so very broad and severe that it gave extraordinary power to any resident of the school district. As Mendoza notes, "The vagueness of the provisions only serves to expand their sweep." What counts as a depiction of sexual conduct, exactly? By allowing 'I'll know it when I see it' to be the sole standard for a book's banworthy status, Mendoza noted, the law 'would unconstitutionally empower those who would limit speech to arbitrarily enforce the law.' In other words, a school district could be at the mercy of a single extreme individual. Just a few months after HB 1069 was passed, the Tampa Bay Times reported that over half of the book challenges filed in Florida came from just two individuals. One man in Clay County challenged hundreds of books.
Mendoza notes that obscene materials are already illegal for school libraries.
Defendants also attempted to argue that removal of books was a sort of protected government speech. But Mendoza points out that the case is not talking about a librarian curating a collection as an agent of the government, but about the application of a blanket rule constructed in such a way that the bans are parental speech, not government.
[T]he statute here mandates the removal of books that contain even a single reference to the prohibited subject matter, regardless of the holistic value of the book individually or as part of a larger collection. Moreover, many removals at issue here are the objecting parents' speech, not the government's.
Parents certainly have the right to object to 'direct the upbringing and education of children,' but the government cannot 'repackage their speech and pass it off as its own.'
Mendoza points to the Miller Test, guidelines for obscenity cases that offer three prongs. First, would the work as whole be seen as prurient by an ordinary person using community standards. Second, does the work describe the sexual material in an offensive way. Third, does the work lack any scientific, literary, artistic, or political merit. In the Miller Test, all three prongs must be met to qualify a work as obscene. Mendoza finds the Florida law lacking, especially when it comes to considering the work as a whole.
On question of obscenity, Mendoza finds the law failing:
Plaintiffs have established multiple unconstitutional applications of thestatutory provisions at issue. The following books, among others, have beenremoved: The Color Purple, Half of a Yellow Sun, Cloud Atlas, The Splendid andthe Vile, I am Not Your Perfect Mexican Daughter, The Freedom Writers Diary:How a Teacher and 150 Teens Used Writing to Change Themselves and the World Around Them, On the Road, Nineteen Minutes, Paper Towns, Looking for Alaska, How the García Girls Lost Their Accents, The Kite Runner, Slaughterhouse-Five, Shout, Last Night at the Telegraph Club, The Handmaid's Tale, Native Son, Kaffir Boy: The True Story of a Black Youth's Coming of Age in Apartheid South Africa, Water for Elephants, Beloved, Song of Solomon, The Bluest Eye, and Homegoing. None of these books are obscene.
It's not clear what comes next. The administration of Governor Ron DeSantis has not yet commented on the ruling, but an appeal seems likely. In the meantime, do school districts need to return books that have been fremoved under this law (or, in some cases, in anticipation of threats under this law)?