(PENSACOLA, FL)— In a hearing today, U.S. District Judge Kent Wetherell issued a ruling that the first-of-its-kind federal lawsuit against Escambia County School Board for improperly removing books from library shelves can proceed. The judge decided that the plaintiffs in the case – including PEN America, Penguin Random House, banned authors and parents – have standing to pursue their claims under the First Amendment. Importantly, Judge Wetherell also found that the state’s argument that its decisions to ban books are immune from the First Amendment hold no merit.
In response, Katie Blankenship, director of PEN America’s Florida office, issued the following statement:
“Today, we urged the court to vindicate the Constitutional rights of students, parents, authors and publishers. We are heartened that Judge Wetherell agreed and that our case can proceed. These books need to be returned to the shelves where they belong, and every day that students are refused access is a day they’re not getting the high-quality education they deserve. This case cuts to the heart of who we are as a country, and for the sake of our children and the future of our democracy, it’s critical that we adhere to the language of the First Amendment and the precedents of our federal courts.”
“We are gratified that the Judge recognized that books cannot be removed from school library shelves simply because of the views they espouse, and are looking forward to moving forward with this case to protect the constitutional rights of the plaintiffs,” said Lynn Oberlander of Ballard Spahr, who is representing the plaintiffs.
“After targeting books centering people of color and LGBTQ+ individuals and ignoring its own review committees’ recommendations, the government baldly asserted that this could not be viewpoint discrimination because the First Amendment does not apply to school libraries,” said Shalini Goel Agarwal, Protect Democracy counsel. “Today’s ruling makes clear that they are wrong.”
Judge Wetherell ruled that the government speech doctrine does not apply in this case and made clear that First Amendment protections are implicated when officials remove books based on ideology or viewpoint. Although he denied a claim under the 14th Amendment’s Equal Protection Clause, the First Amendment claims are sufficient for the case to continue and to vindicate the rights of plaintiffs and students throughout Escambia County.
The books targeted in Escambia County include classic literary works such as The Bluest Eye, Slaughterhouse-Five and The Kite Runner, and run the gamut from picture books to young adult titles. The authors involved in the suit, all of whom have either already had their books removed by the district and/or restricted from student access, include author and children’s book illustrator Sarah Brannen, young adult fiction authors David Levithan, George M. Johnson and Ashley Hope Pérez, and children’s book author Kyle Lukoff.
Since the lawsuit was filed last spring, the district has removed additional books due to the passage of new state laws, including HB 1069. Earlier this week, PEN America released a list of more than 1,600 titles which have been banned pending investigation in Escambia County. The list, which was originally acquired by the Florida Freedom to Read Project, includes five dictionaries.
PEN America has been at the forefront of documenting and defending against the unprecedented rise of school book bans nationwide. Black and LGBTQ authors and books about race, racism, and LGBTQ identities are disproportionately affected by the book bans cataloged by PEN America. The wave of book banning since the fall of 2021 is unprecedented and echoes the McCarthyism and Red Scare of the 1950s. From July 2021 to June 2023, PEN America’s Index of School Book Bans recorded 5,894 instances of book bans across 41 states and 247 public school districts.
Contact: Suzanne Trimel, STrimel@PEN.org, 201-247-5057
About PEN America
PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible. Learn more at pen.org.
About Ballard Spahr
Ballard Spahr LLP is an Am Law 100 law firm with more than 600 lawyers in 15 U.S. offices, serving clients across industry sectors in litigation, transactions, and regulatory compliance. Learn more at ballardspahr.com.
About Protect Democracy
Protect Democracy’s mission is to prevent our democracy from declining into a more authoritarian form of government. We defend elections, the rule of law, and fact-based political debate against authoritarian threats — regardless of who wins or who is in power — and work to shape a better democracy for future generations. Learn more at protectdemocracy.org.
About Penguin Random House
Penguin Random House, the world’s largest trade book publisher, is dedicated to its mission to ignite a universal passion for reading by creating books for everyone. The company, which employs more than 10,000 people globally, was formed on July 1, 2013, by Bertelsmann and Pearson. As of April 1, 2020, Bertelsmann is full owner of the company. With more than 300 imprints and brands on six continents, Penguin Random House comprises adult and children’s fiction and nonfiction print and digital English- German- and Spanish-language trade book publishing businesses in more than 20 countries worldwide. With over 16,000 new titles, and more than 700 million print, audio and eBooks sold annually, Penguin Random House’s publishing lists include more than 80 Nobel Prize laureates and hundreds of the world’s most widely read authors.