The Atlantic – Our picture book was pulled from library shelves in Florida [no paywall]: The argument being used to defend the ban threatens the right to read. By Justin Richardson and Peter Parnell. “In 2023, our book was one of thousands pulled from library shelves around the country, and as we write, an evolving legal strategy being used to defend many such bans threatens to upend decades of precedent preserving the right to read. The danger this doctrine poses to free speech should worry us all—even those who would rather their children not learn about gay penguins. In Tango, a pair of male chinstrap penguins in the Central Park Zoo become parents when a kindhearted zookeeper gives them an egg to hatch. (The story is both true and personal to us; when we wrote it, we were also trying to have a child.) Tango turned 20 in June, and for many of its years in print, it has been one of the most frequently challenged books in America. But until recently, it had never actually been removed from the collection of a public-school library, or any public library for that matter. That’s because of a 1982 Supreme Court decision establishing that freedom of speech includes the right to access the speech of others through their books. Every challenge to a public-library book since has been subject to the Court’s ruling that officials may not remove a book simply because they disagree with its viewpoint. Things started to change for us when a teacher in Escambia County, Florida, complained that the goal of Tango was the “indoctrination” of students through an “LGBTQ agenda using penguins.” A committee responsible for reviewing educational materials for the county disagreed, concluding that the story teaches valuable lessons about science and tolerance and is appropriate for students of all ages. But the school board balked at the book’s message of acceptance. As one board member put it, “The fascination is still on that it’s two male penguins raising a chick.” Escambia pulled Tango from its school libraries, which serve roughly 40,000 children…”

We sued Escambia in federal court for viewpoint discrimination (the case is ongoing). In casting about for a way to defend the ban, the school board landed on the theory that library books represent “government speech.” The government, the board explained, has its own First Amendment rights and must be allowed to speak as it wishes. Thus, it can remove any library book it finds objectionable for any reason. When we first heard this argument, we thought it was absurd. But government-speech doctrine is not new. It was invoked by the Supreme Court in 2009, for example, to allow a Utah town to refuse to install a religious monument in a public park, and again in 2015 to permit the state of Texas to refuse to issue certain specialty license plates. Roughly speaking, the doctrine holds that any action deemed “government speech” is immune to the First Amendment claims of those whose speech is being censored. No court had ever found that library books represent government speech before May of this year, when the United States Court of Appeals for the Fifth Circuit swept aside decades of precedent, including its own previous decisions, to allow the removal of 17 books—Isabel Wilkerson’s Caste, Maurice Sendak’s In the Night Kitchen, and Jazz Jennings’s Being Jazz, among others—from the public libraries of Llano County, Texas. Seven judges in the majority agreed that “a library’s collection decisions are government speech and therefore not subject to Free Speech challenge.” And with that, the books were gone…”