This week, as we celebrate national Banned Books Week, we are painfully mindful that the unprecedented war on free expression in public education waged by local school boards and state legislatures is still going strong.
As we all know, Florida is on forefront of this issue.
Not since McCarthyism in the 1950s have we witnessed as pernicious a campaign of state censorship and ideological control over public education.
Book banning and educational gag orders have been on the rise since 2021, and during the 2023-2024 school year, PEN America recorded over 10,000 book bans nationwide.
Now, a lawsuit in Texas may determine whether or not state governments are allowed to impose ideological control over public education.
Should these states prevail, students will suffer as they are denied books and classroom topics they deserve.
We feel this is the stuff of tyranny, not democracy.
Little v. Llano County, Texas , a lawsuit about Texas book bans in public libraries, is currently under review in the Fifth Circuit Court of Appeals after a lower court ordered books returned to the shelves.
The Fifth Circuit will hear oral arguments on Sept. 24, including by the Solicitor General of Florida on behalf of 17 “ amici ” states that also support book banning.
Florida leads the charge for these 17 amici states, all filing briefs to support Texas’ insistence that its banning of books is not unconstitutional government overreach suppressing disfavored viewpoints, but instead protected government speech.
If adopted, this position could make state censorship in schools immune from First Amendment scrutiny— an alarming prospect.
Americans should be paying close attention to this case and others in which state governments have the same goal — to bend the First Amendment to a breaking point to allow for discriminatory and censorial policies. Among these 17 states are some of the biggest book ban culprits, including Utah, Missouri, Iowa and Florida.
The Fifth Circuit’s ruling depends in large measure on its interpretation of the government speech doctrine, which holds that while the government cannot restrict private speech, it is not limited by the First Amendment when it speaks for itself.
Without the government speech doctrine the government would be bound by viewpoint neutrality and unable to express basic views, whether it’s a governor speaking in favor of their own policy or officials lowering the American flag out of respect.
Yet a contorted version of this doctrine has become the darling of state governments seeking to suppress certain viewpoints and ideas.
In and of itself, the doctrine is not harmful but rather a common-sense caveat that allows the government to function properly without being bound by the First Amendment’s requirement of viewpoint — and content-neutrality.
By trying to extend this doctrine to public education contrary to Supreme Court precedent, the government could freely exert ideological control over public schools by banning books or prohibiting curricular topics or discussions that it disfavors.
In Pernell v. Lamb , a critical case in Florida involving the issue of government speech, the state was asked by the 11th Circuit Court of Appeals if the government speech doctrine would allow for a state university to forbid speech critical of the government.
The state said yes, noting this is the “genius of federalism, your honor.” Yet this blatant intent to suppress ideas is why the courts have urged caution with the government speech doctrine.
The dystopian consequences of censorship by many of the 17 states are already a reality. Florida boasts the largest number of book bans in the country of books dealing with discussions of gender and sexual identity, sexism and racism.The adoption of this interpretation of the government speech doctrine by federal courts could lead to even stronger state control of ideas and education.
The future of education and democracy depends not only on courts rejecting this dangerous bid for ideological control — it also rests with Americans making their voices heard.
Katie Blankenship and Elly Brinkley are legal experts for PEN America, a nonprofit that stands at the intersection of literature and human rights to protect free expression in the United States and worldwide.
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