Kelly is a former librarian and a long-time blogger at STACKED. She's the editor/author of (DON'T) CALL ME CRAZY: 33 VOICES START THE CONVERSATION ABOUT MENTAL HEALTH and the editor/author of HERE WE ARE: FEMINISM FOR THE REAL WORLD. Her next book, BODY TALK, will publish in Fall 2020. Follow her on Instagram @heykellyjensen. View All posts by Kelly Jensen Judge Carlos Mendoza of the U.S. Middle District Court of Florida has ruled in favor of the plaintiffs in a major case related to book banning in the state. The 50-page decision, available here, states that the law used to pull books from Florida public schools is “overbroad and unconstitutional.” Since its passage in 2023, Florida schools have removed hundreds of books under House Bill 1069 (HB 1069). HB 1069 required that school librarians remove materials from their collections that contain “sexual content,” regardless of the value of the book. It also allowed parents or county residents to raise objections to material, which then would need to be removed within five days of the objection and remain unavailable until the book was formally reviewed. The bill laid out no necessary timeline for review of material, nor did it require that material be returned to shelves, even following formal review. Penguin Random House, alongside five other publishers; the Authors Guild; authors Julia Alvarez, Laurie Halse Anderson, John Green, Jodi Picoult, and Angie Thomas; two students; and two parents filed a lawsuit against Florida public officials in August 2024, claiming that the parts of HB 1069 that applied to books permitted widespread removal of materials from schools and were in violation of the First Amendment. The bill led to the removal of books without regard to their literary or artistic value. Trainings by the Florida Department of Education further encouraged school librarians to “err on the side of caution” when it came to materials in the collection, noting that if their libraries had materials with “sexual conduct,” it could lead to punishment. “The judge’s order makes it clear that we cannot judge a book by its cover or a maliciously selected excerpt out of context,” said Stephana Ferrell of the Florida Freedom to Read Project. “This means that the thousands of books that have been prohibited from student access without careful consideration of their value should be returned to shelves immediately. Florida cannot call itself the “freest state” while it blatantly violates the First Amendment rights of our youngest citizens.” Dan Novak, attorney for the plaintiffs, called the decision “a complete knockout. There’s not a single issue that the court did not side with the plaintiffs on,” per the Orlando Sentinel. Literary Activism News you can use plus tips and tools for the fight against censorship and other bookish activism! This site is protected by reCAPTCHA and the By signing up you agree to our terms of use. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Thank you for signing up! Keep an eye on your inbox. There are two key pieces in Judge Mendoza’s ruling worth highlighting. The first applies to where and how “sexual conduct” is considered in the context of the material being evaluated. Where HB 1069 encouraged removal of any material with “sexual conduct”–a phrase with no specific parameters, per the state–the ruling emphasizes that materials are to be judged by the prevailing Supreme Court standard known as the Miller Test. The Miller Test requires review of the materials as a whole, rather than through passages or excerpts. This applies even when reviewing materials for children, an argument that Florida officials have been leaning into (with precedent being the Ginsberg v. New York). Judge Mendoza writes: By leaving these items undefined, Florida has given parents license to object to materials under an “I know it when I see it” approach. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J. concurring). There is a reason that was not the standard the Supreme Court adopted for defining obscenity then. See id. at 191 (majority opinion); see also HM Fla.-ORL, LLC, 137 F.4th at 1213 (“An ‘I know it when I see it’ test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law. But the First Amendment empowers speakers instead.”). 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. This reiterates points made by intellectual freedom advocates over the last several years: there are not obscene materials for minors available in school nor public libraries. Such materials are illegal and not available to distribute nor purchase for those institutions.