Attorneys for the book’s authors and a student Friday quickly appealed a federal judge’s ruling that rejected a First Amendment challenge to a 2023 decision by the Escambia County School Board to remove the book “And Tango Makes Three” from school libraries.
The attorneys filed a notice of appeal three days after Chief U.S. District Judge Allen Winsor ruled against authors Peter Parnell and Justin Richardson and the student, identified in the case by the initials B.G.
As is common, the notice does not detail arguments the plaintiffs will make at the 11th U.S. Circuit Court of Appeals. But it started another chapter in legal disputes about decisions in Escambia County — and other parts of Florida — to remove certain books from library shelves.
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“And Tango Makes Three,” which tells the story of two male penguins who raised a penguin chick at New York’s Central Park Zoo, has become a prominent part of a debate. The plaintiffs in the Escambia County case allege it was targeted because of its depictions of same-sex parents raising a child.
In a February brief, attorneys for the plaintiffs argued the Escambia board violated First Amendment rights because it removed the book from school libraries “based on unlawful viewpoint discrimination.” The brief said the book should be returned to five school libraries where it was previously held.
“Beyond its scientifically accurate depiction of penguin behavior, Tango celebrates family values, adoption, and parental responsibility,” the brief said. “The evidence at trial will show that Tango’s authors, plaintiffs Peter Parnell and Justin Richardson, wrote Tango to express a viewpoint that same-sex relationships and families with same-sex parents exist; that they can be happy, healthy, and loving; and that same-sex parents can adopt and raise healthy children.”
But in his 18-page ruling Tuesday, Winsor wrote that “there is no view of the facts that could support plaintiffs’ claim that the board engaged in unconstitutional viewpoint discrimination or otherwise violated the First Amendment with respect to Tango.”
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Winsor, who is based in Tallahassee, wrote that the “government does not create a forum for others’ speech by purchasing books for a public library.”
“The author plaintiffs have no First Amendment right to speak through the library, and B.G. has no First Amendment right to receive the author plaintiffs’ message through the library,” the ruling said. “Nor do the author plaintiffs have a First Amendment right to demand the library ignore the book’s viewpoint when determining whether to include it in its collection.”
Winsor added that the ruling “does not, of course, keep the book (or any viewpoint in it) from B.G. or any other student. … The Escambia County School Board has simply decided students wanting this particular book will have to get it elsewhere.”
Escambia County has been a battleground as school districts in various parts of Florida have removed or restricted access to books. Parents, authors, the publishing company Penguin Random House and the free-speech group PEN American Center, Inc. also have filed a broader lawsuit contending that Escambia County book decisions violated the First Amendment. That case remains pending.
