At the United States Supreme Court. Image – Getty: Fink Avenue
By Porter Anderson, Editor-in-Chief | @Porter_Anderson
US Banned Books Week:
Banned Books Week: PRH’s ‘Banned Wagon’ Rides Again
Censorship: PEN America Sees US Book Bannings Triple
Challenging Texas’ House Bill 1181
In early July, the Supreme Court of the United States agreed to hear a challenge on the basis of free speech to a law in the state of Texas that’s designed to curb youths’ access to online pornographic content.
The appeal was made by the Free Speech Coalition, a trade group for the pornography industry, after a lower court declined to block the law while litigation went forward.
An amicus brief was filed on Monday (September 23) in support of the Free Speech Coalition’s challenge to Texas’ House Bill (HB) 1181, Free Speech Coalition v. Paxton. “Paxton” is a reference to the conservative Republican attorney general of Texas.
The organizations behind the newly filed amicus brief are:
- Association of American Publishers
- American Booksellers for Free Expression
- Authors Guild
- Comic Book Legal Defense Fund
- Freedom to Read Foundation
- Independent Book Publishers Association
One of the latest in a growing body of publishers’ legal actions that resist efforts in censorship—as is recognized this week in the United States’ annual Banned Books Week observance—the amicus brief filed in this instance argues that Texas’ HB 1181, which requires age-verification on sites where more than one-third of the content is considered “harmful to minors,” violates the First Amendment because it will impede access by adults and older minors to constitutionally protected materials, including contemporary fiction, literary classics, young adult fiction, and health books.
Additionally, the new brief argues that the Fifth Circuit Court of Appeals’ “failure to apply strict scrutiny” amounted to a departure from decades of legal precedent. That phrase about failing to apply strict scrutiny means that a law hasn’t been reviewed to the highest judicial standards.
In the brief, we read:
“Courts have recognized that complying with these laws is untenable for booksellers and librarians. Libraries could bar anyone under the age of 18 from entering, but that would compromise the mission of public libraries, and likely impose an unnecessary and unjustified burden on older minors’ ability to access free library books appropriate to his or her age and reading level.
Related article: Banned Books Week: PRH’s ‘Banned Wagon’ Rides Again. Image: Penguin Random House
“Prohibiting all minors from entering is similarly untenable for bookstores and their owners, as doing so would constrict their mission, dramatically affect their sales of children’s and young adult books, restrict older minors from access to books which are developmentally appropriate for and constitutionally protected as to them, and imply the store only sold ‘adult’ or ‘pornographic’ books, which would be immensely detrimental to business.
“Alternatively, a library or bookstore could theoretically attempt to limit its collection or inventory to only items not likely to contain sexual material which could be considered harmful to minors. As an initial matter, such an action would require comprehensive review of a library’s collection or a bookstore’s inventory. Reviewing materials to determine if they might be considered harmful to young minors is an expensive and time-consuming process, given the substantial number of potentially ‘harmful’ materials at issue.
“Even if it were feasible to limit books that are ‘harmful to minors,’ removing those books from shelves would curtail the availability of many popular books, including bestsellers, constitutionally protected as to adults and older minors. Taking that drastic step would prevent public libraries from providing patrons with materials of interest and is also not commercially feasible for booksellers. This alternative would also make it logistically difficult to order new books because librarians and booksellers rarely have the opportunity to review books in full before ordering them, generally relying on third-party sources when ordering new books.”
And in Banned Books Week, it’s interesting to note that the 33-page brief, in one of its notes on the interests of the amici, includes this passage: “Book challenges in the name of protecting minors are so prevalent in [the state of] Florida—such as 1,600 recent book-banning attempts in Escambia County alone, including dictionaries — that Florida Gov. Ron DeSantis scaled back policies that made it easier to challenge books in schools.
“He signed HB 1285 in April 2024,” the briefing reads, “which limits the number of book objections that can be made by a person who doesn’t have a child accessing school materials. Even a book about book bans was among the books challenged in the Indian River Florida school district, and the board voted in favor of removing it in 2024. More than 140 books had been removed from school shelves in that same district as of March 2024.”
The court filing can be seen in PDF here.
More from Publishing Perspectives on the Association of American Publishers is here, more on censorship is here,
Banned Books Week in the United States is a program of the American Library Association (ALA) and the Banned Books Week Coalition, which includes such high-profile organizations as Amnesty International, the Association of University Presses, the National Book Foundation, PEN America, and People for the American Way.
More from Publishing Perspectives on book bannings is here, more on the Association of American Publishers is here, more on censorship in the broader context is here, more on the freedom to publish and freedom of expression is here, and more on the United States’ book publishing market is here.