With discovery now complete, dueling summary judgment motions have been filed in a closely watched book banning case in Escambia County, Fla., over the removal of Peter Parnell and Justin Richardson’s 2005 picture book And Tango Makes Three.
In a filing this week, the authors, who first filed suit in June 2023, argue that the removal of their book—an illustrated book based on a true story about two male penguins who adopt and raise a penguin chick—was removed based on unconstitutional, anti-LGBTQ “viewpoint discrimination” and should be returned to school library shelves.
“Following Florida’s enactment of anti-LGBTQ+ legislation and a challenge from a District teacher with a documented history of homophobia, Defendant removed Tango from District school libraries,” the filing states. “There is no dispute that Defendant did so because Tango depicts a same-sex relationship, a viewpoint-discriminatory justification prohibited by the First Amendment.”
In their own motion to dismiss the suit, lawyers for defendants Escambia County counter that the case should be tossed because school officials have the authority to remove any book from library shelves for any reason, citing a common defense in several book banning cases now underway across the nation—that which books go on library shelves is “government speech” and thus immune from First Amendment scrutiny.
“In establishing and implementing certain governmental functions, the government, including its educational institutions, has the discretion to promote policies and values of its own choosing free from forum analysis or the viewpoint-neutrality requirement,” the brief states. “Simply because a library shelf contains a collection of seemingly disparate ideas and viewpoints, does not mean it is a forum for private speech.”
The filings come after officials in neighboring Nassau County settled similar claims with the authors in September, finding that the book contains no obscene material and agreeing to return it, along with several other titles, to school library shelves.
While the county’s “government speech” argument has largely been unsuccessful in several other high profile book banning lawsuits, including a recent appeals court decision over Iowa's controversial book banning law, SF 496 , the judge in the Tango case, Allen Winsor, appears to be open to the argument. In his April decision to allow the case to proceed, Winsor held that the government speech argument “has some force,” but said that without a trial on the merits he could not render a decision.
"Indeed, it seems unlikely that a school library will be properly viewed as a forum for authors’ expression. But the law holds that courts should not find government speech lightly,” Winsor concluded. “The bottom line is that it is unclear whether the government speech doctrine applies.”
The Fifth Circuit court of appeals is also considering the government speech argument in another closely-watched book banning case, Little v. Llano County, in Texas.
Developments in the Tango case also come as Escambia County officials face a separate lawsuit over the removal of books from school library shelves. First filed on May 16 in the Northern district of Florida in Pensacola by PEN America, Penguin Random House, and a group of authors and parents, that suit alleges that administrators and school board members “disproportionately” targeted books by “non-white and/or LGBTQ+ authors” and books that contain “themes or topics” related to race or the LGBTQ community. Notably, that complaint lays out how a single language arts teacher at a local high school—Vicki Baggett—kicked off what the plaintiffs describe as "a widespread—and largely successful—campaign to restrict access to books” throughout the Escambia County School District. Baggett’s efforts are also at issue in the Tango case.
In yet another Florida book banning case, attorneys for the state asked a federal judge earlier this month to toss a closely watched lawsuit filed in August by six major publishers, the Authors Guild, students, parents, and several bestselling authors. The suit challenges two provisions of HB 1069, a recently enacted state law have requires school officials to remove “books that describe sexual content” from school libraries, which critics say has fueled a surge in improper book bans in Florida schools.
