Judge orders 7-year-old to testify under oath about banned books she wants to check out of school library as part of 1st Amendment lawsuit

Escambia County School Board (ECPS/YouTube)

A federal judge has ordered a 7-year-old Florida girl to testify in a deposition in a First Amendment lawsuit over banned books at her school’s library.

The girl and her mother, Ann Novakowski, are among students, parents, publishers and free speech groups including PEN America who are suing the Escambia County School Board in Florida’s Panhandle for removing books from the library shelves. Plaintiffs claim the school district is violating the First Amendment rights of students by banning the books. While the plaintiffs and school district agree that middle and high school students can be deposed, they were at odds about whether the elementary school students should do so.

Novakowski requested that her daughter not be deposed because it would be burdensome and cumulative to her testimony while the school board urged the judge to order her to testify because it would be “critical.” Novakowski’s daughter is a second grader identified in court documents as J.N.

This week Magistrate Judge Zachary C. Bolitho sided with the school board, saying the girl must testify, however he limited the length of the deposition.

“By choosing to have a young child serve as a Plaintiff, it should have been anticipated that the young child would be required to be deposed and to ultimately testify at any trial,” Bolitho wrote, adding the district judge mentioned this fact at an earlier hearing.

Bolitho also wrote that he was not convinced that Novakowski’s testimony was an “adequate substitute” for her daughter.

“Only J.N. can testify as to her thoughts, interests, desires, and efforts to access the books at issue in this case. And those issues are critical ones in this case, especially as it relates to J.N.’s standing to bring this lawsuit,” Bolitho wrote.

But Bolitho acknowledged that a seven-hour long deposition could be burdensome for the girl so he limited it to 90 minutes. He also said the deposition could occur in person or virtually and one of the girl’s parents could be with her when she testifies.

According to the lawsuit, the girl goes to the library at least once a week and is “particularly interested in books about families and different family arrangements.” The banned books the girl wants to check out include “And Tango Makes Three” and “When Aidan Became a Brother” along with “Uncle Bobby’s Wedding,” which is on restricted access.

The school board in a filing last week argued the girl should testify because it would prove her standing in the lawsuit.

“Plaintiffs cannot bootstrap the standing of J.N.’s mother — itself disputed — onto J.N.; J.N.’s standing must sink or swim on its own,” the defendants stated.

The girl also has “distinct information separate and apart from her mother.”

“Plaintiffs have not shown specific harms will come to J.N. if she testifies, and cannot use her status as a minor as both a sword and shield in this suit,” the filing said.

The lawsuit, filed in May 2023, challenges the efforts by Florida Gov. Ron DeSantis to limit what children can read in school, claiming they can be exposed to subject matters inappropriate for their age. Opponents say there were already filters in place for age-appropriate material and banning books makes the educational experience less robust.

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