Another book ban battle emerges in Florida, with high stakes for the First Amendment

Another legal battle has begun over Florida's book bans , with significant stakes, as the sued school district is launching a controversial defense that could shake First Amendment law nationwide.

This case emerges in Florida's northeasternmost county, Nassau, wedged between Jacksonville and Georgia.

Facing a federal lawsuit over its removal and restriction of school library books, county school district officials say such decisions are actually protected by the First Amendment, which they are accused of violating.

"(Our) actions constitute government speech for which no First Amendment protections attach," they wrote in a Friday court filing .

That argument has also been used multiple times in the courts by Gov. Ron DeSantis' administration and other school districts, who maintain that governments can remove any school library book regardless of reason.

It's set off alarm bells for many First Amendment advocates, some labeling it as authoritarianism . Its appearance in another case creates another chance that a judge agrees with the argument, potentially elevating it to higher courts where far-reaching precedent could be set.

Assigned to the case is U.S. District Judge Wendy Berger, who was appointed by former President Donald Trump.

What's happening in Nassau County?

The lawsuit was filed in the U.S. District Court for the Middle District of Florida by authors of one of the removed books as well as school district students and their parents.

Written by Peter Parnell and Justin Richardson, that book, " And Tango Makes Three ," details the true story of a same-sex penguin pair at a New York City zoo. The children's picture book and 35 other titles were either removed or restricted by school district officials following the "informal requests" of a local chapter of Citizens Defending Freedom, according to the lawsuit.

"We look forward to working together to protect the innocence of children in our schools," wrote Jack Knocke, the group's county executive director, in an email to some of the officials. It was provided in court records .

On its website , the chapter writes that one of its missions is to "equip and empower American citizens to stand for and preserve freedom for themselves and future generations." But the plaintiffs call it "an anti-LGBTQIA+ advocacy group."

"There are groups that are going to try to vilify us for trying to protect children," Knocke said in a phone interview. "Our goal is to keep the children in the schools so they can learn and develop appropriately."

The CDF chapter accused the books of being inappropriate and in violation of state law. The school district didn't find that was the case with "And Tango Makes Three," but removed it anyway citing "lack of circulation."

"The District’s public school library collection contains thousands of books that predate Tango, but which Defendants did not remove for weeding or lack of circulation (because they were not challenged by CDF and do not espouse the positive LGBTQIA+ message that Defendants disfavor)," write the plaintiffs, who are represented by law firms Selendy Gay PLLC and Kenny Nachwalter P.A.

"They made that decision for a single, unconstitutional reason: their disagreement with the book’s content and viewpoint in violation of the Plaintiffs’ First Amendment rights," they said.

Of the 36 titles affected, according to plaintiff's court records , only two others were weeded out due to "lack of circulation:" " Almost Perfect ," which has a LGBTQ theme and character, and " Ghost Boys ," which discusses racism.

Those suing also say the school district violated the state Constitution, making the book decisions behind doors then attempting "to justify and conceal their unlawful conduct by creating a legally insufficient library material challenge policy and pointing to it as the basis for their removal and restriction of the 36 books."

Nassau County school officials, represented by law firm Steger Law Firm PLLC, denied all those allegations and said the plaintiffs didn't have standing to sue.

"There is no constitutional right to have one’s book remain on the shelves of a public school library, and the removal of said book likewise does not implicate any such constitutional rights," they wrote in the Friday filing. "Furthermore, there is no recognized right to receive information in public school libraries under the First Amendment. Because no such rights exist, Plaintiffs have suffered no injury-in-fact and cannot demonstrate standing."

In the meantime, Knocke said his group has sent the school district another list of books it's concerned about.

More on the government speech argument: Florida says governments can ban school library books just because they disagree with them

School board wants to depose kid: Florida school board, sued for book bans, wants to take testimony of 7-year-old student

Other 'government speech' lawsuits

Parnell and Richardson have also filed a lawsuit against school officials in Escambia County, on Florida's westernmost tip, where "And Tango Makes Three" was also removed.

Another lawsuit was filed against those same officials by national free expression group PEN America, publisher Penguin Random House, book authors and the parents of students who were denied access to school library books.

The "government speech" argument has appeared in both of those suits, as well as in anothe r filed 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.

Unrelated to school libraries, an attorney representing DeSantis' education officials recently argued in a federal appeals court that what public university professors say in classrooms is government speech and therefore can be censored by the state.

Government speech doctrine is relatively new, and U.S. Supreme Court has not always ruled in favor of it.

But justices 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.

"By all accounts, school officials enjoy substantial discretion in determining which books should be available in school libraries," wrote Trump-appointed U.S. District Judge Allen Winsor in an opinion earlier in the year, as previously reported by the USA TODAY NETWORK-Florida. He hasn't yet issued a ruling on it.

"But the issue of how and to what extent the First Amendment limits that discretion is surprisingly unsettled."

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 .

This article originally appeared on Tallahassee Democrat: Another book ban battle emerges in Florida, with high stakes for the First Amendment