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In a precedent-setting win for the freedom to read, on August 13 Judge Carlos E. Mendoza ruled that Florida House Bill 1069, which sought to ban “pornographic” material and books describing “sexual conduct” from school and classroom libraries, was overbroad and unconstitutional. Judge Mendoza ruled in favor of the plaintiffs on five of seven counts, calling for a revision to the statewide “Template Objection Form” prescribed for challenging school materials.

Penguin Random House v. Gibson, filed in August 2024, sued the Florida Board of Education and school boards in Orange and Volusia counties. Plaintiffs include the Big Five publishers—Penguin Random House (PRH), HarperCollins, Hachette, Macmillan, and Simon & Schuster—plus Sourcebooks; the Authors Guild; two Florida parents taking part in the suit on behalf of their children; and authors Julia Alvarez, John Green, Laurie Halse Anderson, Jodi Picoult, and Angie Thomas.

The plaintiffs argued that the language of HB 1069, signed into law by Gov. Ron DeSantis as part of his “Let Kids Be Kids” suite of bills in May 2023, was both overly vague and already covered by the Miller Act under Florida state law.

“The right to speak and the right to read are inextricably intertwined,” the court filing stated. “Authors have the right to communicate their ideas to students without undue interference from the government. Students have a corresponding right to receive those ideas. Publishers and educators connect authors to students. If the State of Florida dislikes an author’s idea, it can offer a competing message. It cannot suppress the disfavored message.”

The authors joining the coalition asserted that the removal of challenged titles violates authors’ free speech and negatively affects their livelihoods. Under HB 1069, thousands of books were removed from Florida school shelves, including classics such as Maya Angelou’s I Know Why the Caged Bird Sings, Ralph Ellison’s Invisible Man, Leo Tolstoy’s Anna Karenina, Richard Wright’s Native Son, and Kurt Vonnegut’s Slaughter-House Five.

Two motions by the defense to dismiss the case were denied earlier this year.

A Choice and A Ruling

In May 2023, PEN America, PRH, and a group of authors joined with parents and students in Escambia County, FL, to file a federal lawsuit challenging removals and restrictions of some 150 books from school libraries. Twenty-four titles were eventually returned to circulation.

When HB 1069 was signed into law, however, it “created the lowest common denominator,” PRH VP and Associate General Counsel Dan Novack told LJ, authorizing censorship at the state level. Drawing coalition members from the Escambia case and a lawsuit challenging SF 496 in Iowa, Penguin Random House v. Gibson was filed in the U.S. District Court for the Middle District of Florida, a federal court in the Eleventh Circuit.

Although more than a year elapsed between HB 1069’s enactment and filing the suit, allowing the effects of its restrictions to play out helped the case, noted Novack. “A linchpin of our strategy was to show the facts on the ground,” he said. “We wanted to show that our concerns are not merely theoretical—even though in the First Amendment realm you’re allowed to say, ‘I have an expectation of harm.’” PRH v. Gibson was able to point to documented harms to families and writers.

Addressing the first challenge, the suit noted that the prohibition against content that “describes sexual conduct” does not consider the book on its merits or as a whole, and that a title could be removed because of a single sentence. “For example,” it states, “some school districts have determined that books containing the phrase ‘made love’ must be removed under Section 1006.28 because the phrase ‘made love’ describes sexual conduct.”

In an unusual move, Mendoza was offered two alternate approaches to the second challenged provision. Addressing the bill’s ban on “pornographic” materials, counts II and V of the filing sought a declaration that the term “pornographic” was synonymous with “harmful to minors,” in which case it covers material already prohibited by Florida state law as per the Miller Act; counts III and VI stated that if the two were not synonymous, then the prohibition of “pornographic” material constitutes “an overbroad content-based restriction in violation of the First Amendment”—that it is undefined and therefore also unconstitutional.

In particular, the suit focused on the state’s mandated challenge form, which defined “pornographic” and “harmful to minors” as separate categories. “We styled our lawsuit based on the challenge form, and said, ‘Look, this is how the state is positioning the law,’” said Novack. They’re saying that there’s ‘harmful to minors,’ which is a constitutional standard that we take no issue with, and there’s ‘pornographic.’” The statute, as written, did not define either term.

The suit gave Mendoza a choice: either the state was overstepping its power, or the state statute could not stand. “As Plaintiffs note, it is unclear what the statute actually prohibits,” Mendoza wrote. “It might forbid material that states characters ‘spent the night together’ or ‘made love.’ Perhaps not. Defendants do not attempt to explain how the statute should work…. Educators must again perform statutory interpretation on the fly to determine what exactly is ‘inappropriate’ or ‘unsuitable’ because those terms go undefined.”

Mendoza chose to overturn the state’s interpretation of the statute. “Given that obscene material as to minors is already prohibited under Florida law, these terms must, therefore, target non-obscene material,” he wrote. “Thus, the applications of the law plainly slip into those barred by the First Amendment.”

While this approach may have been unconventional, said Skip Dye, PRH vice president of library marketing and digital sales, it was a good move on the part of the coalition’s legal team. Mendoza “did a fair assessment based upon the case he was presented,” Dye told LJ. “It gave him a very good playing field, gave him the tools to use, and then he did a great job in using those tools.”

Next Steps

For a community of freedom to read advocates still reeling from the Fifth Circuit’s Little v. Llano County decision, Mendoza’s rejection of the defense’s argument for the government speech doctrine is much-needed good news. “A blanket content-based prohibition on materials, rather than one based on individualized curation, hardly expresses any intentional government message at all,” Mendoza wrote in his decision. “Slapping the label of government speech on book removals only serves to stifle the disfavored viewpoints.”

“The opinion is very specific in terms of what the state needs to do,” noted Novack. “The state needs to tether everything going forward to the appropriate standard.”

DeSantis plans to appeal; Jason Muehlhoff, the chief deputy solicitor general in Florida Attorney General James Uthmeier’s office, has told the press that Mendoza’s order was a “bad decision.”

The PRH team is optimistic that the law will eventually be struck and hopes that this ruling will help open lines of communication about the books in question with those who would challenge their right to exist on school shelves. But no matter what, Novack said, “It was an unqualified victory for PRH and our coalition members,” and stands to become important precedent to fight book banning legislation going forward.