A federal judge this week rejected a challenge to a 2023 decision by the Escambia County School Board to remove the book “And Tango Makes Three” from school libraries, ruling the move did not violate First Amendment rights.
“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 in recent years about removing or restricting access to books at Florida schools. The Escambia County lawsuit alleged the book was targeted for its depictions of same-sex parents raising a child.
But Chief U.S. District Judge Allen Winsor, in an 18-page ruling Tuesday, turned down First Amendment arguments raised by the book’s authors, Peter Parnell and Justin Richardson, and another plaintiff, a student identified by the initials B.G.
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Winsor 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 in recent years. Parents, authors, the publishing company Penguin Random House and the free speech group PEN American also have filed a broader lawsuit contending that Escambia County book decisions violated the First Amendment. That case remains pending.
The “And Tango Makes Three” lawsuit was filed in 2023 and previously included defendants such as the state education commissioner, the State Board of Education and Lake County school officials. It was ultimately whittled to the First Amendment claims against the Escambia County School Board.
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.
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“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 the Tallahassee-based 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.”
