Free speech groups say Florida misrepresents book objection law, causing mass removals

Free speech advocates are accusing Florida education officials of misrepresenting state law, leading to a surge of public school library book removals.

"The overall result is unnecessary and likely unconstitutional censorship emptying libraries throughout the state," wrote the Foundation for Individual Rights and Expression in a news release this week. The Florida Department of Education did not respond to requests for comment.

At issue is a 2023 bill (HB 1069) pushed by Florida's GOP legislative supermajority and signed by Gov. Ron DeSantis. It's one of several measures that have prompted local school leaders across the state to pull books in wildly varying ways across the state, fearing running afoul of state law.

FIRE said the department has added fuel to the flames by issuing guidance in an October memorandum, asserting that school library materials can't contain any "sexual conduct," which it says some counties are interpreting to apply to a broad swath of books including classics.

The group pointed to school districts like Collier County's, which says its book removal process is ongoing and in line with state law and county procedures. But it has pulled more than 300 titles from its shelves — more than many other Florida counties — including "Catch-22" by Joseph Heller and "Atlas Shrugged" by Ayn Rand.

Moreover, FIRE points to a carveout in the measure that says materials with sexual conduct must be removed "for any grade level or age group for which such use is inappropriate or unsuitable," an extra layer of scrutiny. It also says the provision was intended to apply to book challenges and not to require proactive removals of other titles.

It and other free speech groups view the stakes as higher than ever since the department has proposed a rule that puts similar language into the state training for officials charged with school bookshelf decisions. The public comment period on the proposal ends next week.

"Many districts have responded to this guidance by proactively reviewing their collections for any material that contains sexual conduct," said Aaron Terr, FIRE's director of public advocacy, who sent a letter to the state earlier this month with concerns.

"We're hoping to just be able to resolve the matter by making our arguments to the Department of Education and the letter we send in through public comment," Terr added. "But if the agency holds its grounds, then I think that there is potential grounds for a First Amendment lawsuit."

Law details how to object to books in Florida public schools

The legislation lays out objection protocol for school and classroom libraries, requiring books to be yanked off shelves within five days of an objection over alleged pornographic or sexual conduct content. They have to remain off shelves until the challenged book is reviewed.

Books found to have pornography or falling under a separate "harmful material to minors" law must be removed no matter what. But under the bill, books looked at for other reasons, like "sexual conduct," should take into account the age level of the student. Sexual conduct is a broad term in Florida law encompassing various sexual acts.

"Some books that reference sex, including many classic works of literature, may be suitable for an 18-year-old high school senior but not for a ten-year-old fourth grader," FIRE wrote in its news release. "HB 1069 takes that into account in directing districts to remove the material only for those students for whom the district deems such material inappropriate — not necessarily all students."

Yet the state said in its October guidance that material on school reading lists and libraries "may not contain content" for any of the challengeable reasons. The proposed training also doesn't make the distinction that literary works found to have sexual conduct don't unequivocally require removal for all ages, as noted by Stephana Ferrell, co-founder and director of research and insight for the Florida Freedom to Read Project.

"The fact that they are moving forward ... (with) the way that it is written shows that they are accountable, basically, to the districts taking this overly conservative reading of the law and not following their own processes and just assuming that they need to remove these books," said Ferrell, who has been questioning the guidance for months.

Some counties have pulled hundreds of books that haven't been challenged because of the new law, including lawsuit-mired Escambia County, but both Ferrell and FIRE refer to Collier County as one of the most worrying cases.

State 'made clear' kids reading certain books could result in felonies

Chad Oliver, spokesperson for the district, defended its review process, saying that "determination for removal was made based on parameters of (HB) 1069, as well as other district review processes, such as out-of-date titles that have minimal to no circulation."

Oliver added that it wasn't just the legislation guiding their process: "The state has made clear the potential punishment (a third-degree felony) for non-compliance," he wrote.

A Department of Education media specialist training released last year said teachers should "err on the side of caution" with what books they have. It also mentioned they can be charged with a third-degree felony, citing the law that had already been on the books preventing the distribution of "harmful" materials to minors.

That created widespread confusion and fear among educators.

But Ferrell emphasized that the law has criteria for what "harmful" material is, like it not applying to material with "serious literary, artistic, political, or scientific value for minors," as was even mentioned in the training manual.

"If it violates that statute, not only is it unlawful to offer to a minor in a school, it is unlawful to allow a minor to check that book out of the public library, and it would be unlawful to allow the sale of that book to a minor," she said.

"It would be under very rare circumstances where a book does not hold any literary or artistic value for minors if it is intended for and written for minors," Ferrell added.

This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA TODAY Network-Florida First Amendment reporter Douglas Soule can be reached at DSoule@gannett.com.

This article originally appeared on Tallahassee Democrat: Free speech groups say Florida is misrepresenting book objection law