Attorneys for the state of Florida have asked a federal judge to toss a closely watched book banning lawsuit filed by six major publishers, the Authors Guild, students, parents, and several bestselling authors. In a 25-page brief, filed on November 15, the state argues that the plaintiffs lack standing to bring the suit, which challenges two provisions of the state's newly enacted state law, HB 1069. Critics say that the law is fueling a surge in unconstitutional book bans in school libraries.
First filed in August, the plaintiffs specifically allege that two unconstitutionally “vague and overbroad” provisions of HB 1069 have forced school officials to remove “books that describe sexual content” from school libraries or “face penalties, including loss of licensure.” The suit seeks two declaratory judgments: that HB 1069’s broad prohibition on sexual content in K-12 schools is unconstitutional, and that the law's vague term "pornographic" is synonymous with the state’s existing "harmful to minors" standard, which is properly grounded in the Supreme Court's standard for obscenity set forth in Miller v. California, or, if not, a judgment striking down the provision barring allegedly "pornographic" books as unconstitutionally vague.
The plaintiffs note that the law’s vague language has already led to hundreds of books being pulled from school and classroom libraries in the state. Among the books pulled to date are such classics as Maya Angelou’s I Know Why the Caged Bird Sings, Ralph Ellison’s Invisible Man, Ernest Hemingway’s For Whom the Bell Tolls, Zora Neale Hurston’s Their Eyes Were Watching God, Aldous Huxley’s Brave New World, Toni Morrison’s The Bluest Eye, Leo Tolstoy’s Anna Karenina, Richard Wright’s Native Son, Kurt Vonnegut’s Slaughter-House Five, and Alice Walker’s The Color Purple. Contemporary books by the plaintiff authors, including Julia Alvarez, Laurie Halse Anderson, John Green, Jodi Picoult, and Angie Thomas, are also among those pulled.
But in their motion to dismiss, lawyers for the state of Florida argue the suit should be tossed on several grounds, including that the complaint is a so-called “shotgun pleading,” as well as claims that the plaintiffs, for several reasons, lack proper standing to sue.
In its “shotgun pleading” argument, Florida lawyers argue that the plaintiffs’ lengthy complaint violates court rules that require “a short and plain statement of the claim showing that the pleader is entitled to relief,” arguing that the filing features too many alleged various causes of action “all bunched together.” Such a procedural claim is at best a stall, however, because even if the state prevails, lawyers note that the outcome is likely to be an order for the plaintiffs to refile their complaint.
More substantially, Florida state attorneys argue that the plaintiffs lack standing to bring the suit for several reasons, including a common—and thus far unsuccessful—claim in multiple book-banning lawsuits in recent years: that because libraries are public institutions, decisions about which books can go on library shelves are "government speech" and thus not subject to First Amendment scrutiny.
“The First Amendment does not require the government to provide access to particular materials in public-school libraries or to have school libraries at all,” the state argues. “Thus, the government’s decision to withdraw the public benefit of facilitating access to certain books for students or enhancing an author or publisher’s ability to speak to students is subject to, at most, rational-basis review. And Florida’s restriction of school library books containing pornographic content or describing sexual conduct is rationally related to the State’s interest in ‘protect[ing] the welfare of children.’”
Alongside its other arguments, the state insists that the lawsuit’s claims are misplaced, because it is the individual school districts that are making the decisions to remove books, not the state. And Florida attorneys also claim that the federal courts lack the constitutional authority to interfere with the application of the state’s law under state sovereign immunity.
Florida Governor Ron DeSantis signed H.B. 1069 into law in May 2023 as part of a suite of bills that defined his "Let Kids Be Kids" agenda. The suit comes after a group of parents and Florida public school students, along with the ACLU, filed suit in June alleging that the law’s content review procedures discriminate against parents who oppose book bans and censorship. And the suit is one of several by publishers now pending in federal court, including challenges in Arkansas, Iowa, Texas, and in Escambia County, Florida.
Next up in the litigation, a pre-trial conference is scheduled for early December.
