The six book publishers filed the lawsuit along with the Authors Guild, several prominent authors, two students and two parents. The plaintiffs are suing on the basis that the state law is overbroad and violates the freedom of expression protected under the First Amendment of the US Constitution. The plaintiffs stated that this freedom includes the right for authors and publishers to communicate ideas to students and students’ rights to receive those ideas without undue government interference.
The law, HB 1069, came into effect on July 1, 2023, and significantly expanded the state’s ability to prohibit literature if it contained sexual content. The new bill added a provision that allows the state to ban content that “depicts or describes sexual conduct” without needing to consider the literary, artistic or cultural value of the work as a whole. It also expanded procedural barriers by requiring schools to remove a book within five days of a parent’s objection to a book and to remain unavailable until the objection was resolved.
The need to consider the value of the book as a whole, or its literary, scientific or political value, is part of the obscenity test outlined in the 1973 US Supreme Court case Miller v California. The Court found that where work is not considered obscene, it is constitutionally protected expression under the First Amendment. The plaintiffs on Friday argued that the state’s overbroad censorship of works that have sexual content ignores the standard set in Miller.
Explaining their challenge, CEO of the Authors Guild Mary Rasenberger stated:
Book bans censor authors’ voices, negating and silencing their lived experience and stories, these bans have a chilling effect on what authors write about, and they damage authors’ reputations by creating the false notion that there is something unseemly about their books. Yet, these same books have edified young people for decades, expanding worlds and fostering self-esteem and empathy for others. We all lose out when authors’ truths are censored.
This Florida lawsuit is not the first constitutional challenge raised against state education departments for censorship. Across the US, litigation has commenced against sexual content bans in Iowa, Texas, and Arkansas with varying outcomes. In recent months, Alabama and Idaho legislatures have passed similar legislation that restricts books based on sexual content, with challenges from civil rights groups expected.
After coming into effect, the Florida law has allowed the state to ban works such as the Diary of Anne Frank, Aldous Huxley’s Brave New World, Leo Tolstoy’s Anna Karenina and Kurt Vonnegut’s Slaughter-House Five in school libraries.
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