Gay Penguins Face Florida's Classroom Speech Regulations

One Florida school district is facing a legal battle over its decision to ban a book about gay penguins. In 2022, the state passed the Parental Rights in Education Act, which banned classroom discussions on sexual orientation or gender identity “in a manner that is not age-appropriate or developmentally appropriate for students.” While the law initially applied only to kindergarten through third-grade classrooms, the Florida Board of Education later expanded the law to all grades.

Several Florida school districts began removing books from their collections that could possibly violate the new law—including And Tango Makes Three, a picture book depicting two male penguins who raise a chick together. In 2023, the authors of the book filed a lawsuit against one school district that removed the book, arguing that “the Ban’s vagueness, in combination with its harsh penalties, make it more likely to be applied expansively—such as to public school libraries—at the expense of the authors’ free speech rights and the students’ right to receive information.”

The state disagrees. In a November court filing, lawyers for the school district argued that authors don’t have a constitutional right to demand their books be made available at school libraries. Instead, the school board has “the First Amendment right to choose what message is conveyed through its curation of the library collection,” adding that “when the Board selects books to be made available in its school libraries, it is the government speaking, not the books’ authors.”

So who’s right?

“The removal of And Tango Makes Three is constitutionally suspect because it appears to be driven by school authorities’ disagreement with a particular viewpoint or perspective,” says Aaron Terr, the director of public advocacy at the Foundation
for Individual Rights and Expression, a free speech group. “And when school authorities remove books from libraries out of hostility to a viewpoint or ideology, that raises serious First Amendment issues.” Terr notes that in 1982, “a plurality of the Supreme Court held that public schools have discretion to determine the content of their libraries. But they can’t exercise that discretion in a narrowly partisan or political manner.”

This isn’t the only time Florida has been sued over a school district’s attempt to ban the gay penguin story. In September, a group of major publishers launched another lawsuit, this time targeting another Florida law that bans any school library book that “describes sexual conduct.”

“The argument that library books are government speech really defies logic and is, I think, just an excuse for censorship,” Terr explains. “Libraries contain books presenting a wide range of ideas and perspectives, many of which clash with each other. So if they’re all speech of the government, then the government is babbling incoherently.”

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