The Cases Against Book Bans

Amid a three-year nationwide surge in book bans, 2024 began on a hopeful note for freedom-to-read advocates, with legal victories in book-banning lawsuits in Iowa, Florida, and Texas. But after some early successes, several cases are poised to enter a critical next phase. As the wheels of justice grind on, PW rounded up the status of some of the more closely watched book-banning suits.

In Texas

Perhaps no lawsuit has generated more attention than the challenge to HB 900 in Texas, which, among its provisions, would have forced booksellers in the state to rate books for sexual content as a condition of doing business with Texas public schools. In January, a three-judge panel of the Fifth Circuit U.S. Court of Appeals upheld district court judge Alan D. Albright’s decision to block the most odious parts of the law. But a subsequent order from the Fifth Circuit has delivered something of wake-up call for freedom-to-read advocates.

On April 16, the court declined the state’s motion to have their appeal reheard en banc by the full Fifth Circuit, letting Albright’s decision stand. But the nine-to-eight vote was a little too close for comfort. Furthermore, five of the 17 Fifth Circuit judges filed a dissent suggesting they would have overturned Albright.

The fight over HB 900 still may not be over. Despite the Fifth Circuit deciding the case in January—which would put the case beyond the usual 90-day window to petition the Supreme Court for review—lawyers told PW the Fifth Circuit’s delay in issuing a final mandate has extended the deadline to July 15. At press time, state officials have not said whether they intend to petition the Supreme Court.

Another closely watched Texas case remains undecided before the Fifth Circuit, despite the appeal being heard nearly a year ago. The case, Little v. Llano County, was first filed by a group of library patrons in April 2022 and accuses Llano County officials of unconstitutionally removing allegedly inappropriate books from library shelves. In March 2023, a federal judge found for the plaintiffs and ordered the removed books to be returned to library shelves.

Llano County officials then appealed to the Fifth Circuit, where oral arguments were heard last June. At the hearing, one of the panel’s conservative judges, Kyle Duncan (who also signed on to the April 16 dissent in the HB 900 case), extensively questioned why county officials couldn’t just remove “pornographic” books from library shelves, even though that wasn’t at issue in the appeal. Indeed, Llano County’s main argument was that the books were not removed because of their content but as part of a simple “weeding” exercise.

For now, the books are back on library shelves. But court watchers told PW the lengthy wait for this decision is puzzling.

In Alaska

In another closely watched case featuring library books, federal judge Sharon Gleason is weighing whether to order dozens of books taken from library shelves in the Mat-Su Borough School District in Alaska returned while a lawsuit challenging their removal is heard.

Filed in November 2023 by a group of eight plaintiffs, and supported by the ACLU of Alaska and advocacy group the Northern Justice Project, the suit accuses administrators in the Mat-Su district, located just north of Anchorage, of pulling 56 titles from school libraries without any formal review, based solely on a handful of complaints. The books include classics like Toni Morrison’s The Bluest Eye, a number of books by and about people of color and the LGBTQ community, and titles covering adolescent health.

At an April 1 hearing, attorneys for the school board told the judge a review of the books was ongoing. Lawyers for plaintiffs noted that the district’s review committee wasn’t even assembled until after the books were removed. Gleason was expected to rule within two weeks, as the school year is winding down, but it has now been nearly six weeks since the hearing.

In Iowa

Freedom-to-read advocates celebrated a big win back in December when a federal judge blocked parts of Iowa state law SF 496, one of the nation’s most contentious book-banning bills. But the state’s appeal to overturn the block is heating up.

Signed into law in May 2023, SF 496 seeks to ban from school libraries all books with depictions of sex as well as all materials and instruction involving “gender identity” and “sexual orientation” for students through sixth grade. But in his December 29 decision, judge Stephen Locher found the bill was “unlikely to satisfy the First Amendment under any standard of scrutiny.”

In her March appeal brief, Iowa attorney general Brenna Bird told the Eighth Circuit Court of Appeals that Locher’s injunction “risks students’ irreversible exposure to inappropriate materials.” In their response, filed last month, the plaintiffs—which include Penguin Random House, the Iowa State Education Association, a group of authors, a coalition of Iowa parents and students, Lambda Legal, and the ACLU of Iowa—countered that any law that “requires librarians to remove hundreds of award-winning, classic, and other educationally valuable fiction and nonfiction books has no constitutional justification.”

Meanwhile, in a show of solidarity, five more publishers (Hachette, HarperCollins, Macmillan, Simon & Schuster, and Sourcebooks) signed on to the suit in April. As of last week, the state’s appeal is now briefed and oral argument is set for June 11 in St. Paul, Minnesota.

In Florida

In January, federal judge T. Kent Wetherell ruled that a federal lawsuit over book bans in the Escambia County School District can proceed—a significant win after the judge initially expressed skepticism about the viability of the suit.

Filed in May 2023 by PEN America, Penguin Random House, a group of parents, and a group of authors including David Levithan, George M. Johnson, Ashley Hope Pérez, and Kyle Lukoff, the suit alleges that school administrators are disproportionately targeting for removal books by and about the LGBTQ community and people of color.

The case is now in discovery, which is proceeding, albeit slowly. And barring a settlement, this case is likely to hang around. Last month, Wetherell extended the discovery deadlines to mid-October.

In Arkansas

Last July, federal judge Timothy Brooks temporarily blocked two key provisions of Act 372, a controversial law that would have exposed librarians, teachers, and booksellers for exposing minors to allegedly harmful materials. On May 16, Tess Vrbin reported in the Arkansas Advocate that the plaintiffs are now seeking a permanent injunction.

In his ruling, Brooks concluded that portions of the law are “too vague to be understood and implemented effectively” and that, if enacted, would “permit, if not encourage, library committees and local governmental bodies to make censorship decisions based on content or viewpoint, which would violate the First Amendment.” The case was filed on behalf of a library-led coalition of 18 plaintiffs, including the Central Arkansas Library System and a powerful alliance of library, publishing, author, bookseller, and advocacy groups, including the Freedom to Read Foundation (the ALA’s First Amendment Defense arm), the Association of American Publishers, the American Booksellers Association, the Authors Guild, the Comic Book Legal Defense Fund, and Democracy Forward.

The case is scheduled for trial in October.

This article has been updated