1. Book Banners Hit a Wall in Court
In year three of an organized right-wing political attack on the freedom to read, a string of legal victories in federal court in 2023 is buoying the spirits of librarians and freedom to read advocates. With more than half dozen high-profile federal lawsuits filed over book censorship in 2023, federal judges in Texas and Arkansas have so far delivered stinging rebukes to would-be book banners in three closely watched cases.
The first major decision of the year came on March 30, when a federal judge in Austin, Tex., found that Llano County, Tex., officials likely infringed the constitutional rights of readers in the community by improperly pulling books from library shelves they deemed inappropriate. In a 26-page decision, judge Robert Pitman affirmed that the First Amendment “prohibits the removal of books from libraries based on either viewpoint or content discrimination” and ordered more than a dozen removed books returned to library shelves.
That was followed a key victory in Arkansas, where, in a July 29 opinion and order, judge Timothy Brooks enjoined key provisions of Act 372, the state’s newly passed “harmful to minors” law, which would have exposed Arkansas librarians to criminal liability for making allegedly inappropriate books accessible to minors.
And, in the most high-profile victory to date, on August 31 a federal judge in Austin, Tex., enjoined HB 900, the state’s controversial new “book rating” law. In an emphatic 59-page decision, judge Alan D. Albright—a Trump-appointee—called the law “a web of unconstitutionally vague requirements” and a “textbook example” of compelled speech.
Meanwhile, at press time, a host of other key cases still loom for 2024, including a lawsuit in Missouri challenging a school library obscenity law known as Senate Bill 775; a suit in Escambia County, Fla., over the removal of allegedly inappropriate books from school libraries; a suit in Alaska seeking the return of 56 books pulled from schools in the Matanuska-Susitna Borough school district, north of Anchorage; and two suits in Iowa seeking to block key provisions of SF 496, a law which bans books in schools that include depictions of sex, and limits access to books that include any discussion of gender identity or sexual orientation.
Particularly encouraging in 2023, library advocates say, has been the participation of publishers and publishing industry associations in many of the suits. Penguin Random House is a plaintiff in two suits, and the AAP, the ABA, and the Authors Guild are plaintiffs in two others.
Still, no one is celebrating just yet. The wins so far face appeals, and at press time, the U.S. Court of Appeals for the Fifth Circuit—widely considered to be the most conservative court in the land—is preparing to rule on both decisions in Texas.
2. Book Bans Are Still Surging
In September, the American Library Association kicked off Banned Books Week 2023 with new data showing that attempts to censor books and library materials continued to surge in 2023, despite growing efforts to fight back. According to the ALA’s Office for Intellectual Freedom, there were 695 attempts to censor library materials between Jan. 1 and Aug. 31, 2023, up from 681 documented attempts at the same point in 2022.
But while the number of challenges tracked appears to have grown only slightly in the first eight months of the year, appearances are deceiving, ALA reps cautioned. Some 90% of the challenges tracked in 2023 involved multiple titles, and the number unique titles challenged in 2023 jumped 20% over the previous year, developments the ALA said is indicative of the rise in organized political groups creating and sharing lists of objectionable books. Until recently, most book challenges came from individuals questioning a single title.
Once again, the bulk of the book challenges tracked by ALA involved books “written by or about a person or persons of color, or the LGBTQIA+ community.” And the 2023 data also showed another disturbing trend: the surge in book bans is spreading from school libraries to public libraries. For the first eight months of 2023, challenges targeting public libraries accounted for 49% of the reported attempts compared to 16% in 2022.
In addition to the ALA’s data, PEN America also offered its own reports charting the ongoing efforts to ban books in 2023, particularly in school libraries. In a September report, “Banned in the USA: The Mounting Pressure to Censor,” PEN America found 3,362 instances of books banned in public schools in the 2022–2023 school year, a 33% increase over last year.
“These attacks on our freedom to read should trouble every person who values liberty and our constitutional rights,” said Deborah Caldwell-Stone, director of the ALA’s Office for Intellectual Freedom. “To allow a group of people or any individual, no matter how powerful or loud, to become the decision-maker about what books we can read or whether libraries exist, is to place all of our rights and liberties in jeopardy.”
3. Publishers Prevail in Internet Archive Book Scanning Case
After more than three years of high-profile litigation, it took judge John G. Koeltl just four days after a March 20 hearing to find the Internet Archive’s program to scan and lend copies of library books under a protocol known as "controlled digital lending" to be copyright infringement. In an emphatic March 24 decision, Koeltl held that “no case or legal principle” supported the IA’s theory that “lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book.” In fact, the judge concluded, “every authority points the other direction.”
Months later, on August 11, the court approved a final consent judgment negotiated and agreed to by the parties to settle the case. The agreement includes a declaration that the IA’s unauthorized scanning and lending of the plaintiff publishers’ books constitutes copyright infringement, and a permanent injunction which, among its provisions, bars the IA’s lending of unauthorized scans of the plaintiff publishers’ in-copyright, commercially available books, limited to books for which an authorized digital edition also exists in the marketplace. The judgment also includes a confidential monetary settlement, which, according to the Association of American Publishers, will be enough to “substantially” cover the publishers’ litigation costs—though payment is contingent upon the publishers prevailing on appeal.
For the publishers, the negotiated judgment gives them what they wanted most from the suit: a resounding statement that the scanning and lending of print books is copyright infringement. For the IA, the judgment spared them what some observers had feared most: a large damage award that could have bankrupted the nonprofit. Furthermore, by agreeing to a negotiated final judgment, the IA is now able to get the case to the appeals court (which is where this case was always headed, whoever prevailed at the district court) without the time and expense of a damages trial.
On that score, the IA has appealed, with opening briefs expected sometime to be filed on or around December 15. The appeal will likely play out in 2024. “For democracy to thrive at global scale, libraries must be able to sustain their historic role in society: owning, preserving, and lending books,” said IA founder Brewster Kahle, in a statement.
4. ALA Faces Politically Motivated State Library Defections
What started out as a seemingly isolated (and frankly ludicrous) political attack has developed into something of a quiet crisis for the American Library Association in 2023: right-wing politicians in several states are pushing their state library agencies to sever ties with ALA.
The movement began when right-wing media organizations amplified a since-deleted April 2022 tweet by Emily Drabinski in which she celebrated her election as ALA president and identified herself as a “Marxist lesbian” who believes in “collective” power. When Drabinski began her one-year term in June, the tweet was dredged up and thrown out as red meat for conservatives by politicians seeking to attack libraries and librarians.
In July, Montana became the first state to publicly sever ties with ALA, with the state’s library commissioners’ telling ALA leadership in a letter that their “oath of office and resulting duty to the Constitution forbids association with an organization led by a Marxist.” Neither is true, observers quickly pointed out. But it’s also worth noting that ALA is not “led” by its president; the ALA presidency is largely a ceremonial role with no governing power. Weeks later, Missouri secretary of state Jay Ashcroft claimed his state, under his direction, was in fact the first to cut ties with ALA, tweeting about the ALA’s alleged “opposition to Christians, embrace of Marxism, and refusal to protect our children.”
As of this writing, numerous library agencies have cut or considered cutting ties with ALA. And the defections aren’t limited to state library agencies—a host of conservative local governments have also moved to end their institutional support for ALA.
Appearing on the New York Times’ Ezra Klein Show, Tressie McMillan Cottom asked Drabinski why she chose to run for ALA president in such a politically radioactive moment. “Why not me?” Drabinski responded, neatly turning the question around.
“I ran because I care a whole lot about libraries, and I care a ton about library workers. And I know what kind of stress we’re under. I see it in my colleagues. I see it in the people that I talk to," she continued. "I’ve been a librarian for a long time. I know librarians all over the country. And there’s not one of them that feels secure in their ability to do the jobs that we want to do. And I thought that if I ran for president of the American Library Association, making a public argument about the importance, both of libraries as public institutions that secure the public good and library workers as the people who are responsible for that and need the kind of support to expand that work, that whatever happened, it would be good to have that public argument out in the world."
5. Tracie D. Hall Out at ALA
In a surprise announcement on October 6, American Library Association executive director Tracie D. Hall abruptly resigned her position after a challenging four years for the organization. A nationwide search is now underway for a permanent replacement, while veteran librarian and former ALA president Leslie Burger was named interim executive director on November 15.
No question, Hall’s tenure coincided with one of the most challenging periods in the organization’s history. Hall took the top job in January 2020, becoming the first female African American executive director in the association’s long history. Just days later, ALA revealed that it was facing a serious financial shortfall. Just weeks after that, the Covid-19 pandemic hit, forcing libraries across the country to close and the cancellation of the association’s major revenue drivers: in-person conferences. And since late 2021, librarians have become targets in an unprecedented, politically organized right-wing attack on the freedom to read, which has now morphed into an attack on the ALA as well.
In a statement, ALA officials praised Hall for “a string of key accomplishments,” including, and, most visibly, in defending the freedom to read, for which Hall had become something of a public figure with her mantra “free people read freely” being picked up by various media. She also racked up numerous awards and accolades—unusual for an ALA executive director—including the National Book Foundation’s 2022 Literarian Award, and a place on Time magazine’s annual list of the 100 most influential people in the world.
At the start of her tenure in 2020, PW asked Hall what she hoped her legacy at ALA would one day be.
“During my tenure it is important to give librarianship my face,” Hall said. “And by that, I mean the face of people from my community—Black, brown, working-class, activist. I want to make sure librarians and library staff that are sometimes marginalized along with the communities they come from are brought into the circle.”
6. Ibram X. Kendi’s Stirring Rally for the Right to Read Speech
In the midst of a wearying, yearslong political assault, librarians and library supporters kicked off the 2023 American Library Association annual conference experience with a much-needed shot of moral support. On June 22, ALA held its first-ever Rally for the Right to Read, an inspiring program that featured librarians and freedom to read advocates, including bestselling author Ibram X. Kendi, who, in a memorable keynote, praised librarians as modern-day freedom fighters.
“I want to applaud library professionals, library workers, and your supporters for your everyday freedom fight, fighting for our freedom from censorship, our freedom from book bans, our freedom from ignorance, our freedom from homophobia, our freedom from sexism, our freedom from racism,” Kendi said. “There can be no greater compliment than to call a human being a freedom fighter. And if you’re fighting book bans, if you’re fighting against censorship, then you are a freedom fighter.”
Kendi also girded librarians for the hard work still to come. “The freedom fight has chosen every single person who treasures books, who treasures knowledge, who treasures the truth,” Kendi concluded. “The freedom fight has chosen every single American, who recognizes that an institution without books about racism, without books about homophobia, without books about the Holocaust, without queer characters, without books by authors of color, is not a library—it is a propaganda shop masquerading as a library.”
The event, hosted by the ALA’s Unite Against Book Bans advocacy group and sponsored by EBSCO, Ingram, and Penguin Random House, provided a powerful unofficial start to what turned out be a resurgent ALA annual conference, drawing more than 15,000 to Chicago—up significantly from the 13,000 who attended the 2022 event in Washington, D.C., which was the ALA’s first in-person annual conference since 2019.
7. Pritzker Signs Illinois Law to Discourage Book Bans in Libraries
In a year when legislation attacking the freedom to read advanced in a number of state legislatures, librarians and anti-censorship advocates welcomed the passage in Illinois of HB 2789, a groundbreaking law designed to discourage book bans in the state’s libraries. The bill was signed on June 12 by Illinois governor JB Pritzker at an event at the Chicago Public Library.
The law was initially drafted by Illinois secretary of state Alexi Giannoulias as an effort “to stand up and fight for libraries and librarians,” Giannoulias said, “and for freedom of speech, especially at this perilous time for our democracy.” Specifically, the bill conditions state grant funding for libraries on adopting the ALA’s Library Bill of Rights or a similar written policy that would protect library books and other resources from being “proscribed, removed, or restricted” based on “partisan or doctrinal disapproval.”
The law comes after Illinois governor J.B. Pritzker, in his January state of the state address, took specific aim at the organized political effort to ban books now underway across the nation, calling the movement “a virulent strain of nationalism” led by “demagogues.” At the signing ceremony, Pritzker doubled down on those remarks. “The argument for banning books always begins with the claim that it’s about protecting children,” Pritzker said. “But banning books from libraries isn’t about that at all. Book bans are about censorship, marginalizing people, marginalizing ideas, and facts. Regimes ban books, not democracies.”
To be clear, the law is not a perfect solution. Even in supporting the bill, many librarians have expressed unease over any bill that uses library funding for leverage.
But as then ALA executive director Tracie D. Hall said at the signing ceremony, the law, which kicks in on January 1, 2024, sends an important message. “History will surely assess this moment in the years to come and note that we—librarians and legislators civic leaders and community stewards—did not stand idly by and let the right to read and to freely access libraries be taken from us,” she said.
8. Scholastic Book Fairs Segregates Diverse Titles, Later Backtracks
As book bans continued to escalate in 2023, Scholastic Book Fairs introduced an optional diverse stories offering called “Share Every Story, Celebrate Every Voice.” But librarians, educators, and authors quickly expressed dismay at the idea of diverse books being separated into an “optional” offering, and accused the company of aiding censorship.
In initially defending the offering, Scholastic cited “enacted or pending legislation in more than 30 U.S. states prohibiting certain kinds of books from being in schools—mostly LGBTQIA+ titles and books that engage with the presence of racism in our country.” Such laws, the company added, “create an almost impossible dilemma: back away from these titles or risk making teachers, librarians, and volunteers vulnerable to being fired, sued, or prosecuted.”
But amid growing media attention—and with more than 1,500 authors and illustrators signing an open letter calling for Scholastic to abandon the “optional” offering of diverse titles, Scholastic reversed course in an October 24 letter. “I want to apologize on behalf of Scholastic,” Scholastic Trade Publishing president Ellie Berger wrote. “Even if the decision was made with good intention, we understand now that it was a mistake to segregate diverse books in an elective case.” Berger said the offering would be “discontinued” and that the company would find ways to show their support for diverse voices.
Though final plans have not yet been formalized, Scholastic Book Fair representatives confirmed in November that Spring 2024 Scholastic Book Fairs “will include all of the books from the Celebrating Voices Collection throughout the fair,” along with “a number of new titles with a wide array of representation.”
9. Publishers Balk at Follett Request to Rate Their Own Books
From the outset, one of the key problems (among many) associated with HB 900, Texas’s controversial book rating law, is the impossible (as well as unconstitutional) burden it placed on vendors to rate every book sold to Texas schools for sexual content. But in August, with the law’s September 1 effective date bearing down, Follett School Solutions, the nation’s largest distributor of books to schools, saw a path forward in Texas: it asked publishers to help rate their own books.
In a memo to publishers, shared with PW, Follett asked publishers for help getting as many books as possible ready for sale in Texas schools by September 1 by providing them with “a simple spreadsheet” separating titles into two categories: no sexual content (which could be sold to Texas schools) or books with possible sexual content (which would have to be rated).
When asked by PW, all of the major publishers rejected the idea of helping Texas censor books—especially with the publishers suing to block the law. “We strongly disagree with the idea that rating our books to flag certain content, or having retailers or wholesalers do this, is appropriate or helpful,” Hachette representatives told PW in an on-the-record statement. “It is our hope that laws that seek to limit access to books and that criminalize teachers, librarians and booksellers will be struck down as unconstitutional.”
The good news: a federal court has found HB 900 unconstitutional, though at press time the fate of the law remains in the hands of an appeals court. But the Follett request remains a sign of the pressure facing the book business in the wake of new state laws that strike at the freedom to read.
10. The Federal Response to Book Bans
On December 5, a group of Democrats in Congress, led by Florida representatives Maxwell Alejandro Frost and Frederica Wilson, and Maryland representative Jamie Raskin, introduced the Fight Book Bans Act—legislation aimed at combating the surge of book banning in schools. Specifically, the bill—which Frost’s office said already has the support of 50 members of Congress—would enable the Department of Education to provide grants to school districts to cover expenses incurred while fighting book bans, up to $100,000 to a given school district.
In addition, in April, Senator Jack Reed (D-RI) and Representative Raúl Grijalva (D-AZ-03) once again introduced the Right to Read Act, which would, among its provisions, affirm that "First Amendment rights apply to school libraries" and extend "liability protections" to teachers and school librarians, a direct response to a surge in laws threatening librarians and teachers with fines, jail time, or job loss for providing access to books.
Unfortunately, two separate hearings in 2023 (one in the House and one in the Senate) suggest federal legislation to combat book bans is highly unlikely to advance. On September 12, the Senate Judiciary Committee held a hearing entitled “Book Bans: Examining How Censorship Limits Liberty and Literature.” But after an opening statement, the hearing descended into a chippy 25-minute partisan debate about the southern border. When it got back on track, Republican witnesses and legislators proceeded to run the same playbook employed by right-wing activists at school and library board meetings across the country: they read aloud cherry-picked, graphic sex scenes from banned books, which included Louisiana senator John Kennedy reading from George Johnson’s All Boys Aren’t Blue, which Nola.com dubbed “the audiobook nobody asked for.”
On October 19, the Republican-led House Subcommittee on Early Childhood, Elementary, and Secondary Education, chaired by Florida representative Aaron Bean, held a hearing entitled “Protecting Kids: Combating Graphic, Explicit Content in School Libraries.” The message from the hearing: there is no book banning, just an epidemic of pornographic books in schools and libraries.
Meanwhile, there was better news from the White House. In June, the Biden administration announced the appointment of a new position within the DOE to help schools respond to book bans that may violate federal civil rights laws. The announcement came just two weeks after the DOE reached a landmark resolution agreement with the Forsyth County (Georgia) School district over book bans featuring Black and LGBTQ characters. In September, Matt Nosanchuk, a former DOJ liaison to the LGBTQ community during the Obama administration, was appointed to the role.