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Comment by rayiner | Hacker News Reader

There is a high likelihood this ruling gets overturned. The title and the article use the term “book ban” but gloss over what’s actually happening which is legally significant:

> HB 1069 required that school librarians remove materials from their collections that contain “sexual content,” regardless of the value of the book

Florida cannot ban private libraries from stocking books with sexual content. But librarians are government employees buying books and maintaining libraries with government money. The state can direct its employees what kinds of books to make available for the same reason any private entity can do so.

This might be different if libraries were neutral venues for authors to come present about their books. In that case you might have a case about viewpoint discrimination. But the first amendment can’t force the government to buy particular books and make them available to the public.

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> Florida cannot ban private libraries from stocking books with sexual content.

From the statute, "As used in this subsection, the term “school property” means the grounds or facility of any kindergarten, elementary school, middle school, junior high school, or secondary school, whether public or nonpublic."

> remove materials from their collections that contain “sexual content,”

Where "sexual content" includes the mere existence of LGBTQ people at all.

> The state can direct its employees what kinds of books to make available for the same reason any private entity can do so.

Not according to the constitution.

https://www.law.cornell.edu/wex/government_speech

This isn't an unlimited loophole in the constitution (at least not so far).

As the article you link to points out, "It is not always clear when the government is speaking for itself instead of unconstitutionally restricting others’ speech...The Supreme Court has not yet provided a clear standard for this type of case."

Also, "...even though government speech is not regulated by the Free Speech Clause, it is still subject to the Establishment Clause."

The first amendment cannot force the government to buy specific books, but it can force the government not to not buy specific books.

And sure, that's weird, but it's just how the First Amendment works.

No that’s not how the first amendment works. You’re thinking of situations where the government offers a platform to the public and can only impose viewpoint-neutral restrictions on access to the public forum. So the government couldn’t operate a government-owned sales platform for books and discriminate based on viewpoint.

The books stocked in government libraries is more like the government speech doctrine: https://www.law.cornell.edu/wex/government_speech. The government itself is allowed to have a viewpoint.

Could the government direct librarians to purchase only Bibles, with explicit bans on purchasing the Quran?

I assumed by “First Amendment” you were talking about the Free Speech clause, since that’s what the article is about.

Government speech of course remains subject to other constitutional provisions. But the standards for these provisions are quite different. Your hypothetical raises the possibility of an Establishment Clause violation. But to prove that, it’s not enough to show that the government is discriminating as to view point. It has to be enough to amount to an establishment of religion.

And of course the Free Speech Clause covers basically any subject, while other constitutional provisions are much narrower. For example, a government-run book selling platform probably couldn’t exclude people from trading books on Brutalist architecture. But a school library could have such a policy.

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