Judge strikes down Florida law banning books with “sexual content” for minors

A federal judge in Florida last week granted summary judgment to plaintiffs suing the state over a law banning books that “describe sexual conduct.”

Judge Carlos Mendoza of the U.S. Middle District Court of Florida issued a 50-page ruling Thursday granting summary judgment to the plaintiffs, which included authors, publishers and Florida school students.

Florida schools have reportedly moved hundreds of books since the Florida Legislature passed the law in 2023, including many of the same books that have faced challenges in Alabama.

But Mendoza agreed with the plaintiffs that, ultimately, “the court must conclude that there is no constitutional application of a prohibition against books containing material that ‘describes sexual conduct.’”

Mendoza wrote that the statute is plainly unconstitutional in its attempt to prohibit materials outside of the scope of the state’s “harmful to minors” statute already enshrined into law, because the First Amendment only permits the government to restrict obscenity.

“This also means that everything that could be constitutionally censored because it constitutes obscenity already falls within the portion of the statute that bans content … that is harmful to minors,” Mendoza wrote. “This leaves the Court to grapple with the other categories banned under the statute—material that ‘describes sexual conduct’ and that is ‘pornographic.’ By leaving these items undefined, Florida has given parents license to object to materials under an ‘I know it when I see it’ approach.

“Here, neither a prohibition on content that ‘describes sexual conduct’ nor that which is allegedly ‘pornographic’ takes the third Miller prong into account. Both prohibitions lack the specificity required in identifying obscene material. Given that obscene material as to minors is already prohibited under Florida law, these terms must, therefore, target non-obscene material. Thus, the applications of the law plainly slip into those barred by the First Amendment. Both provisions ‘threaten […] a broad range of protected speech, even if the law has some permissible applications at its core. These provisions turn the Act into an ‘I know it when I see it’ law. But the Constitution requires more clarity.’”

The ruling does allow the state’s ban on pornography to remain in place, but forces the interpretation of that term to align with the state’s definition of “harmful to minors.”

The state law bears some resemblance to the requirements for state aid required by the Alabama Public Library Service after Governor Kay Ivey and state lawmakers prompted changes to the requirements.

The code specifically prohibits libraries in the state from shelving “sexually explicit” books in sections for minors, in addition to obscene materials and “inappropriate materials.” The code does not outright require the removal of such books from the library as a whole, but it does explicitly prohibit libraries from purchasing such material moving forward. 

Libraries could choose to ignore those requirements and lose state funding, but most of the libraries in the state rely on that funding for full operation. 

The now-invalidated law also somewhat resembles a perennial bill introduced in the Alabama Legislature by State Representative Arnold Mooney, R-Indian Springs.

That bill has historically sought to rewrite Alabama’s definition of “harmful to minors.” Like the Florida statute, Alabama’s law is based on a “Miller‘s-for-minors test” established in Ginsberg v. New York. 

The Miller Test is the U.S. Supreme Court standard for determining what material is obscene and therefore able to be restricted by the government. There are three prongs to the test that must all be found together to constitute obscenity:

As Mendoza explained in his ruling, this version has been tweaked when considering minors, by simply rephrasing that the work must appeal to the “prurient interest of minors” and that the work must have literary, artistic, political or social value “for minors.”

Mendoza also commented on the state’s argument that what public schools shelve in libraries is government speech, which has been touted by APLS and the Autauga-Prattville Public Library as a potential defense.

“Defendants frame this case broadly as the government curating the selection of books in the library and argue that is government speech. That is problematic for two reasons,” Mendoza wrote. “First, it is unclear whether, even under that broad umbrella, this would constitute government speech. And second, Defendants’ framing ignores the narrower reality of the statutory scheme at issue here.”

The APLS and Prattville Library board have lauded a recent plurality opinion from the 5th Circuit Court that found to some degree that the curation of library materials is government speech. But the 8th Circuit has flatly rejected that same premise, and even the 5th Circuit opinion is backed only by a plurality of judges weighing the case.

“It is clear to the Court that the removal of library books without consideration of their overall value cannot be expressive activity amounting to government speech,” Mendoza wrote. “A blanket content-based prohibition on materials, rather than one based on individualized curation, hardly expresses any intentional government message at all. Slapping the label of government speech on book removals only serves to stifle the disfavored viewpoints.”