In June 2025, Secular AZ sponsored a seminar on banned books at the Arizona State Bar Convention. One of our main speakers was Lynn Oberlander from Ballard, Spahr in NY. She is also the lead attorney on the case of Penguin Random House et al v. Ben Gibson et al in Florida that was decided on August 13, 2025.
The 50-page opinion was on summary judgment (a.k.a. I win without a trial because there are no factual issues only legal ones) in which the court granted the plaintiff’s motion and granted in part and denied in part the motions by both the State and the School Boards.
For background, the court outlined the stories of several high schoolers who went to the library to check out books that had disappeared. Such books as On the Road by Jack Kerouac, The Bluest Eye by Toni Morrison, Looking for Alaska by John Green, Nineteen Minutes by Jodi Picoult, The Hate U Give by Angie Thomas, How the García Girls Lost Their Accents by Julia Alvarez, and Shout by Laurie Halse Anderson were gone.
These very same books are the ones targeted in Scottsdale and other schools in Arizona by “outside agitators” who are creating these lists for local groups to use to attack local libraries. This is not a homegrown action.
In Florida the books were removed pursuant to a statute that said a parent may object to any material in a school or classroom library that contains pornography or any sexual conduct. Upon a challenge, the book must be removed. Thus a book can be removed for one sentence that some parent construes as having sexual conduct. Plaintiffs argued this was overbroad and that “pornography” must be harmful to minors to be actionable. Everybody moved for summary judgment.
The court began by laying out the legal standard for summary judgment as usual. Then they discussed Article III standing (right to sue i.e. you have an injury, and it can be fixed) that is required in federal courts. The court found that everyone had standing.
Defendants argued that the Eleventh amendment applies i.e. that they cannot be sued in a federal court because it impacts state not federal law. The court said no, it impacts the First Amendment of the Constitution which federal courts do have jurisdiction over.
The defendants also argued “prudential standing” or a prohibition on a plaintiff raising another person’s legal rights who is not in the suit. However here the plaintiffs – publisher, author, writers’ guild – have themselves suffered harm. Others (the kids who can’t get the books) are also harmed but that does not moot the ability of these plaintiffs to get a remedy.
Defendants then argued the complaint was a shot gun pleading. It’s not but even if it were, the solution is to order them to replead not throw it out.
Then the defendants drug out the old argument they are using in every book banning case – it’s government speech because the school is a government entity so you can’t regulate it. Most circuits have held it is not government speech for several reasons. Here no government curated every library book to make a certain point in its collection. Here the statute mandates removal for the tiniest reference to sex and it was the parent’s speech that caused the books to be removed not the governments.
There is no history of parents being able to select a school’s library books. Parents can direct their own child’s education by choosing a different school or telling their child they can’t read this or that, but they cannot dictate the education of every other child based on their own predilections.
The court cited the famous case of W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion[.]”). The Court held that removal of library books without consideration of their overall value is not government speech.
The State next argued that libraries are a public benefit that the government can withdraw if it chooses. But the law has been solid for a long time that you do not have to offer the benefit, but if you do offer the benefit, you cannot withhold it on unconstitutional or discriminatory grounds.
Finally the court could get to the real issue – the First Amendment. First, they decided to use the non-public forum standard which is a lower standard than strict scrutiny under Tinker v. Des Moines (the black armband case). Under even that lower standard, the statute fails.
First, the material must be obscene as it is defined by the Supreme Court under Miller. Miller defines speech as obscene if it satisfies three requirements: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
There is a “Miller-for-minors test,” that “takes the Miller prongs but adjusts the second and third standards (and sometimes the first) ‘for minors.’ So the ‘patently offensive’ requirement becomes ‘patently offensive for minors,’ and the ‘serious value’ exception becomes ‘serious value for minors.’” As for obscenity, only depictions of ‘“hard core’” sexual conduct can satisfy that term. Florida can ban material harmful to minors under their existing state statute that incorporates the Miller standard. So the protection is already there – as in Arizona.
But what is “sexual conduct” that is “pornographic?” Each word in a statute must have meaning. Since pornographic material is already prohibited, “sexual conduct” must mean non-pornographic material.
The court found that prohibiting that violates the First Amendment. Since “harmful to minors” is already banned, “describes sexual conduct” must mean something that is not harmful to minors. The Court concluded that there is no constitutional application of a prohibition against books containing material that “describes sexual conduct” that is not harmful to minors and is not pornographic.
As the court stated earlier, the first problem with the Florida law is that it does not evaluate the work to determine if it has any holistic value as required under the Miller test. The second problem is that the statute does not specify what level of detail “describes sexual conduct.” As Plaintiffs note, it is unclear what the statute prohibits. The judge said it might forbid material that states characters “spent the night together” or “made love.” Does that involve sexual conduct?
“Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” The court said that Defendants have pointed to no obscene books that have been removed.
The second challenged provision prohibits material that is “pornographic.” Without further definition, this provision treats all minors as if they are the same, rendering content that is obscene as to younger children also obscene as to older children. The law demands the opposite.
The court found that the harms extend beyond that of chilling of speech. It also prohibits school personnel from responding to the needs of students especially those who might have experienced sex or sexual abuse themselves. A librarian explained that she would have to remove from the library collection popular and award-winning books that allow students to understand and process consensual or abusive sexual experiences that are common among both young and maturing teens.
Many of these books that would be removed are classics, modern award winners, and tested on AP exams. Looking to Tinker, the court found that the presence of these books in school libraries does not materially and substantially disrupt the work and discipline of the school.
The court found that the statute fails the public forum test and would certainly also the fail strict scrutiny test. The statute’s prohibition of material that “describes sexual conduct” is overbroad and unconstitutional.
The plaintiff had asked the court to define “pornographic” as “harmful to minors” which would save the statute because it would fit under the “Miller for minors” existing language. The Court found that the term “pornographic” is synonymous with “harmful to minors” under section 847.012 and thus the statute is saved but with the new meaning i.e. the material must be found pornographic under the statutory definition and cannot be removed for a single or any reference to sexual conduct in general.
Arizona has the same basic scheme, and the Miller test is standard throughout the country. A single parent, or a hundred parents’, complaint about a book should not result in banning that book unless it can be shown to be actually pornographic. As the librarian and the judge said, there are no pornographic books in the school library nor in the banned list.
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