As executive director of Media Coalition, it is my job to defend the First Amendment rights of the book community. I am usually fixated on the most immediate threat to free speech in Congress, state legislatures, and the courts. However, I recently had an opportunity to take a broader view of the essential role that publishers, booksellers, and librarians have played in defending the right of free expression.
Media Coalition prepared a friend of the court brief in Susan B. Anthony List v. Driehaus, a case argued before the Supreme Court last month.
The brief urged the Court to reaffirm its 1988 ruling in Virginia v. American Booksellers Association that people who have a “well-founded fear of prosecution” under a law that infringes First Amendment rights should have standing to bring a “pre-enforcement” challenge to the law. A pre-enforcement challenge is a critical tool for protecting free speech because the passage of an unconstitutional law can have a chilling effect, making people afraid to exercise their rights. A bookseller or librarian may pull a book from the shelf if they fear that they may be prosecuted.
Under the present standard, members of Media Coalition have brought 23 successful pre-enforcement challenges to censorship laws including Virginia v. American Booksellers Association. Those challenges created important legal precedents, including protecting the rights of adults and older minors to browse in bookstores and libraries; barring publishers and booksellers from legal liability for the actions of book readers; and establishing that the Internet cannot be scrubbed of all speech that is not appropriate for children. In all, more than 40 booksellers, publishers, and authors have joined these lawsuits. (There is a map of the cases cited in the brief and the full list of plaintiffs at mediacoalition.org/sbal-v-driehaus.)
The brief illustrates the successful history of the book community in defending First Amendment rights, but the fight for free speech continues. This year we are tracking nearly 100 bills introduced in 34 states that violate the First Amendment. Many pose a serious threat to books.
Every year there is ample legislation to criminalize speech with sexual content, and this year is no different. This spring, we defeated a Mississippi bill banning the sale to a minor of material with visual or written “sexual content.” The bill would have criminalized Judy Blume novels, sexual health information, and many romance novels. We also killed similar bills in Rhode Island and West Virginia.
The censors are also now targeting new kinds of speech. In Wisconsin, we successfully fought a bill that criminalized electronic publishing of speech with profane language with the intent to annoy or offend someone. This could have applied to e-books by Bill Maher or Ann Coulter. Another new danger to speech is “ag-gag” legislation, which requires reporters and authors to immediately turn over any evidence of animal cruelty to law enforcement. This would impede investigative journalism and make undercover reporting virtually impossible. We stopped versions of this legislation in Arizona, Nebraska, New Hampshire, North Carolina, and Tennessee.
Also, increasingly common are restrictions on the use of arrest photos. This legislation would force publishers to remove arrest photos from books, magazines, and newspapers if the subject of the photo is not convicted. Such a law would prevent a publisher from using a mug shot of O.J. Simpson or Lee Harvey Oswald. This year, we defeated similar legislation in New Hampshire, Minnesota, and Colorado.
It is important to remind ourselves that none of our victories, whether in the legislature or the courts, are permanent. The book community plays a vital role in stopping censorship. Legislators and judges respond to your concerns as community assets, small businesses, and concerned citizens.
There is always someone who believes speech must be banned or segregated or blocked, and publishers, booksellers, librarians, and authors must be ready to answer the call to fight for the First Amendment.