Who's Afraid of Gay Penguins?

The Atlantic

9 hours ago

A decade ago, when the government of Singapore announced its decision to pulp every copy of our picture book, And Tango Makes Three, in the nation's libraries, we felt profoundly lucky. Not for the pulping—that was alarming—but for the fact that the First Amendment guaranteed that this could never happen in America.
We're not feeling quite so lucky anymore.
In 2023, our book was one of thousands pulled from library shelves around the country, and as we write, an evolving legal strategy being used to defend many such bans threatens to upend decades of precedent preserving the right to read. The danger this doctrine poses to free speech should worry us all—even those who would rather their children not learn about gay penguins.
In Tango, a pair of male chinstrap penguins in the Central Park Zoo become parents when a kindhearted zookeeper gives them an egg to hatch. (The story is both true and personal to us; when we wrote it, we were also trying to have a child.) Tango turned 20 in June, and for many of its years in print, it has been one of the most frequently challenged books in America. But until recently, it had never actually been removed from the collection of a public-school library, or any public library for that matter. That's because of a 1982 Supreme Court decision establishing that freedom of speech includes the right to access the speech of others through their books. Every challenge to a public-library book since has been subject to the Court's ruling that officials may not remove a book simply because they disagree with its viewpoint.
Things started to change for us when a teacher in Escambia County, Florida, complained that the goal of Tango was the 'indoctrination' of students through an 'LGBTQ agenda using penguins.' A committee responsible for reviewing educational materials for the county disagreed, concluding that the story teaches valuable lessons about science and tolerance and is appropriate for students of all ages. But the school board balked at the book's message of acceptance. As one board member put it, 'The fascination is still on that it's two male penguins raising a chick.' Escambia pulled Tango from its school libraries, which serve roughly 40,000 children.
We sued Escambia in federal court for viewpoint discrimination (the case is ongoing). In casting about for a way to defend the ban, the school board landed on the theory that library books represent 'government speech.' The government, the board explained, has its own First Amendment rights and must be allowed to speak as it wishes. Thus, it can remove any library book it finds objectionable for any reason.
When we first heard this argument, we thought it was absurd. But government-speech doctrine is not new. It was invoked by the Supreme Court in 2009, for example, to allow a Utah town to refuse to install a religious monument in a public park, and again in 2015 to permit the state of Texas to refuse to issue certain specialty license plates. Roughly speaking, the doctrine holds that any action deemed 'government speech' is immune to the First Amendment claims of those whose speech is being censored.
No court had ever found that library books represent government speech before May of this year, when the United States Court of Appeals for the Fifth Circuit swept aside decades of precedent, including its own previous decisions, to allow the removal of 17 books—Isabel Wilkerson's Caste, Maurice Sendak's In the Night Kitchen, and Jazz Jennings's Being Jazz, among others—from the public libraries of Llano County, Texas. Seven judges in the majority agreed that 'a library's collection decisions are government speech and therefore not subject to Free Speech challenge.' And with that, the books were gone.
The ruling will likely be appealed, and many expect that the Supreme Court will eventually have to decide whether the welter of books and opinions found in every public-library collection represents private speech that the government cannot suppress or government speech that it can censor as it wishes. Imagine the implications if the Court decides the latter. With each new school board, town council, or presidential election, a new set of books deemed out of step with the winner's political agenda could be swept off the shelves. The government could choose with impunity to destroy any book it dislikes, whether On the Origin of Species or the Bible. The censorship of other forms of speech in public settings could soon follow.
Concern over the expanding use of government-speech claims is not limited to liberals. No less a conservative than Justice Samuel Alito has warned that the doctrine 'is susceptible to dangerous misuse.' When the Supreme Court decided that Texas could censor specialty license plates, Alito issued a stinging dissent decrying what he saw as the doctrine's encroachment on individual liberties. 'Here is a test,' he offered: Imagine yourself next to a highway watching the license plates pass—plates variously honoring colleges, clubs, athletes, and cheeseburgers. 'As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars?'
And what if you walked into your child's school library and saw on its shelves Harry Potter, Adventures of Huckleberry Finn, and Captain Underpants; the writings of James Baldwin and William F. Buckley Jr., Karl Marx and Adam Smith, Philip Roth, Laura Ingalls Wilder, and Alison Bechdel? Would you really think that each of these books expressed the views of your government?
Read: Read the books that schools want to ban
We are not legal scholars. We are a playwright and a psychiatrist who wrote a children's book about penguins. We cannot know how the justices of the Supreme Court might parse the precedents and the details of a case like ours if and when it reaches their bench. But we know where library books come from, and we know what they are for. They are not made by the government. They do not speak the government's mind. Even small elementary-school collections speak in hundreds of disparate voices offering a wealth of perspectives on our children's lives and their world—perspectives that all children deserve to hear.
Our daughter is one of them. Bans such as the one on Tango have marched for the past few years under the banner of 'parents' rights.' We're parents too. And as the fathers of a now-16-year-old girl, we are determined to defend our daughter's right to read and write and say what she wishes.
Eleven years ago, we followed the Singapore ban from a distant position of privilege that we now find embarrassing. Today, we hope Americans can learn from that example. In a nation where public demonstrations are tightly policed, hundreds of parents stood up to the government's threat to destroy our book. On a July afternoon, they brought their young children—some in strollers, others holding their stuffies—along with copies of our book and others like it, to the steps of the National Library Building. They sat down and read to their kids. Their quietly powerful protest made international news, and the Singapore government backed down.
As we await decisions in our case and others like it across the country, we would do well to remember the value of putting our own voices to use, even or especially when the government would speak over us.