Florida Tried to Ban Literary Classics as “Pornography.” What Does the Supreme Court Think?

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Ben Franklin is famous for his love of books, voracious reading habits, and belief that reading books was an essential part of democratic life. Franklin, who was the father of America’s public libraries, believed that libraries would help make “the common Tradesmen and Farmers as intelligent as most Gentlemen from other Countries.”

As early as 1740, Franklin argued that every school should also contain its own library. Franklin’s belief and inspiration helped fuel an American obsession with libraries and a conviction that they were crucial to this country’s spirit of freedom and democratic architecture.

Without them, the right to read, which has long been part of our First Amendment tradition, would have been reserved for people who have the means to acquire books. Today, the American Library Association reports that there are 124,903 libraries of all kinds in the United States, 97,000 of which are school libraries.

Last week, Judge Carlos Mendoza showed himself to be a kindred spirit to Ben Franklin when he struck down Florida House Bill 1069, a book ban which was signed into law by Gov. Ron DeSantis two years ago.

Among other things, that bill banned anything having “pornographic” material that “depicts or describes sexual content” from school and classroom libraries and required their removal. Florida’s sweeping interpretation of the statute would have devastated library shelves. HB 1069 is only one part of the book-banning crusade in the Sunshine State being led by Gov. DeSantis, but Judge Mendoza’s ruling is a crucial pushback against that dangerous agenda.

According to a report from PEN America:

During the 2022–23 school year, book bans occurred in 153 districts in 33 states. Over 40 percent of all book bans occurred in school districts in Florida—and with over 1,400 recorded book ban cases, Florida had the highest number of book bans and largest number of school districts (33) removing books compared to any other state.

As the PEN America report notes, “Florida is followed by Texas, which had 625 book bans across 12 districts; Missouri, which had 333 book bans across 14 districts; [and] Utah, which had 281 book bans across 10 districts.”

While book banning has become a regular part of the MAGA playbook in red states across the country, efforts to ban books in the United States are older than the republic. The first such ban occurred in 1637 in Massachusetts. The book banned then was New English Canaan. It was branded as heretical by Puritan authorities. Book bans continued with Southern slave-state efforts to remove Uncle Tom’s Cabin from shelves.

These periodic American book bans have not always fared well in courts. In 1933, a federal district judge in New York struck down an attack on James Joyce’s famous novel Ulysses. Judge John Woosley ruled that in “ ‘Ulysses,’ in spite of its unusual frankness, I do not detect anywhere the leer of the sensualist.”

He noted that while Ulysses is “not an easy book to read or to understand …The words which are criticized as dirty are old Saxon words known to almost all men and, I venture, to many women, and are such words as would be naturally and habitually used, I believe, by the types of folk whose life, physical and mental, Joyce is seeking to describe.”

“Whether or not,” he continued, “one enjoys such a technique as Joyce uses is a matter of taste on which disagreement or argument is futile, but to subject that technique to the standards of some other technique seems to me to be little short of absurd.”

In Trump’s America, though, the absurd has become the order of the day. In recent years, religious and political groups have sought to purify the culture by ridding it of ideas and images that they find offensive.

As Florida’s HB 1069 shows, they have succeeded in enlisting ambitious politicians to do their bidding. The most objectionable books seem to be those that touch on race and gender and offer favorable portrayals of diversity.

Judge Mendoza gives a sense of the breadth of Florida’s effort right at the start of his opinion:

When J.H., a junior at an Orange County public high school, went to the school library to check out On the Road by Jack Kerouac, it was nowhere to be found. … It was not checked out; it had been removed from the shelves. … The same thing happened to R.K., a senior at a Volusia County public high school, who tried to check out The Bluest Eye by Toni Morrison.

Mendoza did not say that because a book has been published, it must be part of a school library’s collection. What he found troubling was that, under Florida law, books are being removed from the shelves “not because school librarians had, using their expertise, deemed them unsuitable for children but because fragments of their content were prohibited under HB 1069.”

The lawsuit, which he decided, was brought by book publishers and authors of banned books, the Author’s Guild, and parents. They claimed that the Florida legislation used the language of pornography to cover a wide swath of material that the sponsors considered “harmful to minors.”

It sought to impose, they contended, the kind of content-based restrictions that are prohibited by the First Amendment. Mendoza was persuaded.

He swept aside and branded illogical the state’s claim that when it banned books, it was engaging in a form of governmental speech, and that if the court overturned such a ban it would be interfering with the government’s right to freedom of expression.

Citing Justice Samuel Alito from his time on the U.S. Court of Appeals for the 3^rd Circuit, Mendoza explained that even in the school context, speech can only be regulated if it would “substantially disrupt school operations or interfere with the rights of others.” And he criticized HB 1069 for giving “parents license to object to materials under an ‘I know it when I see it’ approach.”

The judge offered an extended reminder that the mere presence of sexual content in a book does not make it pornographic. In his view, the state of Florida ignored a long line of Supreme Court opinions requiring an analysis of the work as a whole before any judgment can be made about whether or not it is obscene.

He noted the absurdity of sweeping into the category of pornographic material many books that “are classics, modern award winners, and tested on AP exams.”

Like the United States Supreme Court’s 1982 decision in Island Trees Sch. Dist. v. Pico by Pico, which also struck down book banning in school libraries, nothing in Mendoza’s decision affected the discretion of school librarians and school boards “to choose books to add to the libraries of their schools.” Mendoza made clear, as the Supreme Court said four decades ago, state officials “may not remove books from school libraries simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’ ”

In the end, when all the smoke cleared, Mendoza insisted that the restrictions imposed in the Florida legislation had to be judged “in light of the purpose of school libraries.” There, as in other libraries, the right to read is paramount.

Ben Franklin would no doubt be pleased.

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