One of the questions I have been asked over the last few months is whether or not I’ll update my guide on how to fight book bans. I like to think that my weekly book censorship news roundups published here and in the Literary Activism newsletter are the updates. The reality is that three some years into this assault on the First Amendment Rights of all people and the insulting rhetoric around library workers, educators, and advocates for intellectual access, while the fight is still vital, change is only going to truly happen on a large scale through the legal system. It is important to keep showing up. It is important to keep pushing back. It is important to continue to advocate and organize and share information. But big, meaty, nationwide change is going to happen in courtrooms.
There are two main reasons for this.
First, the First and Fourteenth Amendments exist. Those both protect intellectual freedom—the ability to access information—and they protect equal access to that information. Information is not just textbooks or research. It’s books and magazines and apps and any other item currently being censored and derided by the book banners (and no amount of trying to rebrand themselves changes the fact they like to ban books).
In addition to the First and Fourteenth Amendments, there’s the Miller Test. This is the legal standard for defining obscenity, and no matter how many times book banners pull the same few panels from Gender Queer out of the book and parade them around, that book and every other one of the several thousand which have been banned do not meet the legal definition of obscenity. There’s no such thing as porn for kids in the library. There’s no such thing as porn for kids being published, period.
The second reason lawsuits are the way forward is that they’re extremely costly. Putting schools, state legislation, and other book banning parties through the process requires deep pockets, and while, indeed, it’s been deep pockets funding the book banning hysteria, there comes the point where the funders evaluate their target and begin to question if it’s worth the cost. In these situations, it’s going to be very expensive and probably not worth their time—especially because they know they’re not going to win on the grounds of the already-enshrined laws governing this country.
That doesn’t mean that lawsuits are going to stop book banning wholesale. What they will do, though, is make it much more difficult. We won’t see as many people showing up to school board meetings in their Moms For Liberty shirts, with “reviews” printed from the Moms for Liberty book review site BookLooks and choreographing performances across the country. They’ll be there, but their fight will not be landing in the same way.
Indeed, none of this is new. We saw it play out in the 1950s and 1960s with the panic around comic books. Going through and reading the report on the Senate Hearing on Juvenile Delinquency—aka, the comic book hearings—is like watching what’s going on now. It’s also like revisiting the moral panic Tipper Gore got involved in during the late ’80s and early ’90s against “porn rock.” They’re moral panics that got a lot of attention, but once the law was actually pulled in, things looked different.
Lawsuits against book banning efforts have been popping up over the last several months. Let’s look at the status of the ones in progress and who is involved in re-righting the freedom of information access for all–particularly the most vulnerable young people who need the books offered to them in school and public libraries. As much as book banners claim these kids can “just get the books at the bookstore/public library,” we know that’s a bold-faced lie. Especially when those same book banners are after those institutions, too.
This list is current as of December 1, 2023. I’ll continue to update throughout the coming year. It is organized by state. The list does not include lawsuits by individuals, though you should get to know the stories of librarians like Brooky Parks and Amanda Jones.
Alaska
The American Civil Liberties Union of Alaska and Northern Justice filed a lawsuit in mid-November 2023 against the Mat-Su School District. It is a case hinging on the First and Fourteenth Amendments. Several parents and former students sought to fight the district over the unlawful removal of 56 books from the district library in April. Among the books were The Bluest Eye, The Kite Runner, and Slaughterhouse 5. This is a new lawsuit, so details on the case will be forthcoming.
One day before the lawsuit, the state’s Attorney General sent a letter to school librarians and educators meant to silence them on the issue of book bans and intellectual freedom. While ostensibly to “inform” these public servants about the law, the real goal was to silence them over any First Amendment issues, including book bans. The chilling effect is real.
Arkansas
Seventeen different plaintiffs came together to file suit against Arkansas’s Act 372, the state’s 2023 obscenity bill. The bill would have put librarians and booksellers on the line for “knowingly” distributing books or how to obtain books that included information on LGBTQ+ people, sexuality, or racism to anyone under the age of 18. Librarians and booksellers could face misdemeanor or felony charges with jail time and fines for breaking the law.
The law was temporarily blocked due to this lawsuit in August 2023. There will be more to come in this case, but the response from one of the plaintiffs, the Central Arkansas Library System, is worth reading.
Florida
In May 2023, Penguin Random House, PEN America, and several authors and parents filed a lawsuit against Escambia County School District and its school board. The suit came as a result of the removal of books about race and LGBTQ+ people in the district’s libraries. The grounds of the lawsuit are that the district violated the First Amendment by removing the books, and the lawsuit also invokes the Equal Protection clause of the Fourteenth Amendment.
The school board filed a motion to stay the lawsuit in August, claiming they had the right to remove books. A judge agreed to a temporary stay. Advocates pushed for the hearing to move forward as of the end of September.
More details are yet to come.
Around the same time of that lawsuit came one from the creators of the oft-banned book And Tango Makes Three. They filed a lawsuit in Lake County, stating the book’s removal from the district was in violation of the First Amendment. The district reversed course in August, claiming the book was back on shelves and had been removed only temporarily; they asked the court to dismiss the lawsuit on the grounds the book was returned. The lawsuit was refiled in late August and not only continued to name Lake County Schools but added Escambia. In September, Escambia asked to have this lawsuit moved to be heard in Pensacola. That is the most recent update in the case.
A third lawsuit in Florida came in late November via the Southern Poverty Law Center on behalf of All Rainbow and Allied Youth Inc. (ARAY) and PFLAG of Port
Charlotte. It is against the School Board of Charlotte County and argues that the district’s removal of LGBTQ+ books and content in the schools is a violation of First and Fourteenth Amendment Rights.
Iowa
Two lawsuits were filed within days of each other in the state of Iowa. Both are centered around the state’s law, Senate File 496, which outlaws any books with sex acts in schools. The bill, with significant backing from the local Moms for Liberty chapters, was rammed through the legislative session and presented to districts across the state with little explanation for what their responsibilities were (with, of course, significant consequences if districts did not comply).
The lawsuits are:
- The American Civil Liberties Union and Lambda Legal have filed a lawsuit in support of seven students and families in the state. Its grounds are that SF 496 violates First and Fourteenth Amendment Rights.
- Filed November 30, Penguin Random House and a number of their authors have called the new law unconstitutional per the First and Fourteenth Amendments.
Texas
In one of the lengthiest legal battles yet, several booksellers sued over House Bill 900 (the Texas READER Act). This bill would not only require the removal of different types of books in libraries across the state but it would also require the labeling of materials, both of which the booksellers say put an undue burden on them.
The bill was enjoined in September, meaning the law could not be enforced, but it was quickly appealed. In late September, that decision was overturned, with the courts siding on behalf of the law. The plaintiffs appealed that decision, and as of writing, the lawsuit is being heard in the 5th Circuit Court.