A school board does have the authority, and can, remove from its school library shelves a book intended for children that promotes same-sex “marriage,” according to a judge’s ruling.

“By definition, libraries must have discretion to keep certain ideas—certain viewpoints—off the shelves,” explained Chief U.S. District Juge Allen Winsor of the fight involving the Escambia County School Board in Florida.

In exercising that discretion, this library did what “libraries have been doing for two centuries,” and that is “decide which books” are of “requisite and appropriate quality” to be on shelves, the judge wrote.

At issue was a “penguin-themed children’s book depicting ‘same-sex marriage.'”

“And Tango Makes Three” is a story about two male penguins who adopt, hatch, and raise Tango, a penguin chick at New York’s Central Park Zoo, Liberty Counsel explained.

The fight moved into the courts in 2023 on a lawsuit by the book’s authors and a young female student.

Winsor’s conclusion was that “the government does not create a forum for others’ speech by purchasing books for a public library.”

The result of the ruling is that the book’s authors have no First Amendment right to a spot on a government library shelf and the student has no First Amendment right to receive the authors’ specific message through the library.

“Judge Winsor explained the library’s decision to remove the book does not keep the book or its viewpoint from the student since the book is available elsewhere. Furthermore, Judge Winsor noted, the authors also do not have a First Amendment right to demand that the library ‘ignore the book’s viewpoint’ when deciding whether to include it in its collection,” Liberty Counsel explained.

Winsor cited Shurtleff v. City of Boston, a U.S. Supreme Court case where Liberty Counsel won a unanimous victory in 2022.

In that case, Boston illegally censored Christian viewpoints by denying flying the Christian flag in a public forum open to “all applicants,” and so the high court held when a city opens a public forum to private expression, it cannot discriminate based on viewpoint without violating the First Amendment, the legal team explained.

Winsor’s ruling found a library collection “does not constitute a public forum” for private expression, so libraries can make its own determinations on “what constitutes worthwhile literature.”

Winsor said libraries send messages about their own protected messaging in selecting some books and not others.

“Liberty Counsel founder Mat Staver said, “School boards have the discretion to keep inappropriate material off the bookshelves and away from children. Gender ideology has no place in public education and school officials should protect children from indoctrination.”

Bob Unruh

Bob Unruh joined WND in 2006 after nearly three decades with the Associated Press, as well as several Upper Midwest newspapers, where he covered everything from legislative battles and sports to tornadoes and homicidal survivalists. He is currently a news editor for the WND News Center, and also a photographer whose scenic work has been used commercially. Read more of Bob Unruh's articles here.