A district court in Florida on Monday ruled that the Escambia County school board had not violated the First Amendment rights of students or authors when it removed a children’s book from its school libraries called “And Tango Makes Three,” which is about two gay male penguins raising a penguin chick.
The lawsuit was brought by the picture book’s authors, Justin Richardson and Peter Parnell, and an elementary school student who was identified by the initials B.G. The suit maintained that Escambia removed the book because it disagreed with its viewpoint, a decision which infringed on their free speech rights.
“There is no dispute,” the plaintiffs said in a court filing, that the book was removed “because ‘Tango’ depicts a same-sex relationship.”
As restrictions on books in public schools and school libraries have skyrocketed over the past few years, “Tango” has been a common target.
In it, a zookeeper notices that two male penguins have paired off and built a nest together. “They must be in love,” the zookeeper thinks. When the two penguins put an egg-shaped rock in their nest and start sitting on it like all the other penguin couples do, the zookeeper replaces it with a real egg that needs to be cared for. That egg becomes Tango.
The book “illustrates that same-sex parents exist, that they can adopt and raise offspring, and have happy and healthy families,” the plaintiffs maintained.
In its defense, Escambia said that a library collection was a form of government speech, which meant it was entitled to curate the collection as it saw fit, and that the authors did not have a right to have their book included. Escambia also argued that the plaintiffs could not prove the board removed the book based on viewpoint discrimination.
Judge Allen Winsor, of the United States District Court for the Northern District of Florida, ruled in Escambia’s favor, but leaned on a different argument. He said that a school library is not a public forum for expressing opinions, so the author’s First Amendment rights were not violated. Removing the book from its collection also did not keep it from the student who sued, the judge said, because the student could still buy the book or borrow it from a friend.
“The good news is I need not decide the difficult government-speech issue to resolve the case,” the judge wrote. “Either way, the First Amendment offers Plaintiffs no protection.”
In his opinion, the judge looked to, and often quoted from, a case recently decided in the United States Court of Appeals for the Fifth Circuit, Little v. Llano County, which focused on the removal of books from public libraries.
In that case, a plurality of judges decided that Llano County’s action constituted government speech, but a majority said the County’s decision could not be challenged on First Amendment grounds. That case has been appealed to the Supreme Court.
Lauren Zimmerman, a partner at Selendy Gay, the law firm representing the plaintiffs, said the ruling “stands for the idea that the First Amendment does not apply to government censorship in a library. We think that’s wrong.”
The Escambia County School Board did not respond to a request for comment.
Elizabeth A. Harris covers books and the publishing industry, reporting on industry news and examining the broader cultural impact of books. She is also an author.
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