TALLAHASSEE, FL – A federal judge recently ruled that Florida’s Escambia County School Board can remove a penguin-themed children’s book depicting “same-sex marriage” from its libraries and that such action does not violate the First Amendment.
The book, “And Tango Makes Three,” follows two male penguins who adopt, hatch, and raise Tango, a penguin chick at New York’s Central Park Zoo. A 2023 lawsuit by the book’s co-authors and a young female student wanting to borrow the book from her school library challenged the school board that removing the book based on its pro-LGBT stance was “viewpoint discrimination.”
However, Chief U.S. District Judge Allen Winsor rejected their First Amendment argument writing that “the government does not create a forum for others’ speech by purchasing books for a public library.”
Essentially, the September 30 ruling stated that the book’s authors have no First Amendment right to a spot on a government library shelf and the student has no First Amendment right to receive the authors’ specific message through the library. Judge Winsor explained the library’s decision to remove the book does not keep the book or its viewpoint from the student since the book is available elsewhere. Furthermore, Judge Winsor noted, the authors also do not have a First Amendment right to demand that the library “ignore the book’s viewpoint” when deciding whether to include it in its collection.
“By definition, libraries must have discretion to keep certain ideas—certain viewpoints—off the shelves,” wrote Judge Winsor. In exercising that discretion, this library did what “libraries have been doing for two centuries,” and that is “decide which books” are of “requisite and appropriate quality” to be on its shelves, reads the ruling.
In his decision, Judge Winsor also cited Shurtleff v. City of Boston, a U.S. Supreme Court case where Liberty Counsel won a unanimous victory in 2022. In Shurtleff, Boston illegally censored Christian viewpoints by denying flying the Christian flag in a public forum open to “all applicants,” and so the High Court held when a city opens a public forum to private expression, it cannot discriminate based on viewpoint without violating the First Amendment. The Shurtleff decision gave courts factors to help determine what is government speech and what is private expression. Using those factors, as applied in another recent case relating to libraries, Little v. Llano County, Judge Winsor concluded that a library collection “does not constitute a public forum” for private expression, so libraries can make its own determinations on “what constitutes worthwhile literature.”
By selecting books, and rejecting books that are available elsewhere, the library is sending its own protected message: “We think these books are worth reading,” wrote Judge Winsor.
Liberty Counsel Founder and Chairman Mat Staver said, “School boards have the discretion to keep inappropriate material off the bookshelves and away from children. Gender ideology has no place in public education and school officials should protect children from indoctrination.”
SOURCE Liberty Counsel
