Gov. Ron DeSantis' administration is doubling down on its position that books can be removed from school libraries solely because the government disagrees with them.
"(We) maintain the position that the removal of material from public school libraries is government speech for which it has the complete discretion and freedom to speak through the removal of speech with which it disapproves," wrote attorneys for various Gov. Ron DeSantis education appointees in a Thursday court filing.
As revealed by the USA TODAY NETWORK - Florida, the state has made the same argument over the last year to counter lawsuits filed over the local school district removals of books with LGBTQ themes.
In a similar vein, another attorney for DeSantis education appointees recently told a federal appeals court that what public university professors say in classrooms is government speech and therefore can be censored by the state.
The federal lawsuit prompting the latest government speech assertion was filed last month by a trio of public school student mothers who accuse Florida's top education officials of discriminating against them and others opposed to the surge of book removals seen across the state.
In trying to get that lawsuit thrown out, Florida's attorneys said that since removals are protected government speech, the public can't experience "harm or concrete injury" over those removals and therefore can't sue.
It shows the state is only ramping up arguments that have alarmed First Amendment experts, with some accusing them of being authoritarian. And it marks yet another case in Florida that could have big effects on First Amendment law across the nation.
Government speech?
As mentioned by the Free Speech Center at Middle Tennessee State University, government speech doctrine is relatively new and "not always precise," with most of the core cases on it coming in the last couple of decades.
"Under the government speech doctrine, the government has its own rights as speaker, immune from free speech challenges," the center says on its website. "It can assert its own ideas and messages without being subject to First Amendment claims of viewpoint discrimination."
While the U.S. Supreme Court has not always ruled in favor of government speech arguments, it said in 2015 that Texas could refuse to allow Confederate flag specialty license plates because they represented government speech. Justices said six years before that a city could refuse to put a monument in a public park for the same reason.
But the attorneys for the state — Ray Treadwell, who used to work for DeSantis, and Caroline May Poor of Lawson Huck Gonzalez, PLLC — acknowledged in the Thursday filing that their government speech argument hasn't yet been confirmed by judges of the 11th Judicial Circuit, a federal jurisdiction that includes Florida.
Florida is not alone in making that argument in recent months. Similar defenses for book removals have also been used in Arkansas and Texas, for example, though it has not prevailed in either state.
Two Florida federal judges also weren't convinced by the argument and have refused to dismiss two separate cases based on book removals in Escambia County, which is on the state's westernmost tip.
But one of those judges, Trump-appointed U.S. District Judge Allen Winsor, said that could change as the litigation continues and more information comes in. Winsor wrote in a court order that the legal balance between book removals and First Amendment protections is "surprisingly unsettled."
During oral arguments late last year, the USA TODAY NETWORK reported on how Winsor weighed two extreme hypothetical scenarios.
On one side, school library books could be removed by the government because they're written by members of a certain political party. On another, every bookshelf decision was subjected to First Amendment scrutiny, where tossing pro-Nazi books could be considered "viewpoint discrimination."
Winsor has also been assigned the new case filed by the moms.
The latest case
Several recent Florida laws have prompted local school leaders across the state to pull books in wildly varying ways, fearing breaking the rules. A free speech group last year ranked Florida as the nation's book banning leader.
As part of a measure from last year, a public school parent or guardian can ask for a state special magistrate if they're unhappy that a school district didn't remove a challenged title.
But the state's not allowing parents who disagree with district decisions to bar books to likewise appeal.
The plaintiffs in the lawsuit filed last month say that violates the First Amendment by discriminating based on viewpoint.
“The freedom to read is essential to our democracy, and extremists’ efforts across the country to impose their personal discriminatory beliefs on what books our children can read set a dangerous precedent for our most basic freedoms and democratic ideals,” said Skye Perryman, president and CEO of Democracy Forward, in a statement.
Perryman's group, along with the American Civil Liberties Union of Florida and the Southern Poverty Law Center, are representing the three moms involved in the case.
One of them is Stephana Ferrell of Orange County, who tried and failed to appeal a removal decision. She is also the co-founder and director of research and insight for the Florida Freedom to Read Project, one of Florida's most-outspoken book access organizations.
Beyond the government speech argument, the state also counters that the appeal process is not a "forum for speech" and the First Amendment "does not require the government to provide Plaintiffs with an official channel to level grievances about book removals."
It points out how a government-run electricity company might provide the public with a tool to report outages but not provide one to report when their power is functional.
"A health inspection agency might have a process to receive information from the public about unsanitary conditions, without also providing a process to report or discuss sanitary locations," the lawyers continued.
The governor's office and representatives for both sides in the case didn't respond to media requests Friday. No hearing has been scheduled yet in the case.
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This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA Today Network-Florida First Amendment reporter Douglas Soule can be reached at DSoule@gannett.com.
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