Tag: book bans

Book bans deserve opposition, but not debate.

book bans

The Authors Guild, of which I am a member, has filed an amicus brief asking the Eighth Circuit Court of Appeals to affirm a lower court ruling that Iowa’s book ban law is unconstitutional. And of course it is. The subject barely warrants legal examination because it is impossible to draft a content-focused general book ban law that does not violate the First Amendment. And while there is reason to expect that ruling to be upheld on appeal, this cautious optimism does little to resolve the question as to why book ban efforts are more energized than they were 10-20 years ago.

Based on the titles highlighted in the AG brief, it is fair to assume that once again, conservative extremists have their righteous undies in a bunch over the inherent “evil” of sex. Iowa legislators join those in Texas, Florida, Arkansas et al. in the view that both fiction and nonfiction works that in any way confront, describe, or allude to sex, or sexual identity, are so dangerous to American youth (even teenagers who are having sex) that they must be removed from distribution.

Fear of sex is nothing new for the religious right, of course, but the current increase in book banning efforts appears to be animated by a reaction against wider social acceptance of a broader spectrum of sexual identity—i.e., a moralizing backlash against openly gay, nonbinary, and transgender persons. The sweep also includes reactions against subject matter dealing with race, and if (God forbid) any book addresses both race and sex, the earth will shake. As such, the novels of Nobel Laureate Toni Morrison make everybody’s list.

In public statements, politicians advocating book bans will portray these laws as necessary to protect children from age-inappropriate sexual content, but there is no truth to this implication, either in practice or law. Not only is there no evidence that teachers are reading Bukowski to third graders, but laws like Iowa’s are sweeping, content-focused bans for all libraries serving all students regardless of age. As old as the recurring theme of sex in book bans is the axiom that book banners, by their very nature, are illiterate. There is no more sense in arguing constitutional principles with these people than there is in talking cosmology with a gibbon.

Sure, one could explain for the umpteenth time that the five freedoms of the First Amendment very intentionally proscribe all rationales for state censorship. But for whose ears do we repeat this? Do the legislators endorsing these statutes know even a fraction of the history behind the Bill of Rights? Can they so much as theorize why the Constitution rejected the underlying frameworks of England’s censorious laws? Can they trace any portion of the narrative from the 14th century Lollards, through Henry VIII, Milton and Aeropagetica, royal patents entangled with the politics of the Church, the Puritan adventure to North America, and the next 160 years of history to get to the Constitutional Convention?

I ask because the constitutional framers (some who were total horndogs, BTW) knew that history from reading books! As such, the First Amendment, in 45 words, neatly encompasses centuries of lessons learned about successful and failed states to form a critical building block in the Plan for a nation unlike any that existed before or since the U.S. Constitution was ratified. In short, no book banning allowed—not even for allegedly “protecting the kids” from sex, an effort which, like book banning itself, has a history of spectacular failure.

Consider this detail:  the AG brief notes that among the prohibited books is “Laurie Halse Anderson’s Speak, which has helped countless teens work through the trauma of sexual assault.” By what twisted logic does banning such a book “protect” anybody from anything? Legislators with any real moral judgment should be focused on the “countless victims” of sexual assault, not the books that might help them heal. But again, you can’t explain such things to gibbons. This is what happens when alleged principles are unmoored from education—e.g., when one censors books without reading them. Any position taken to extreme will inevitably cross the boundary where the advocate contradicts his own core values, proposing unworkable, unconstitutional laws that can only be sustained by hypocrisy.

And I get it. I sympathize with the emotion. After all, it would be short work to argue that religious exercise has been the cause of more violence and depravity throughout history than all the smuttiest literature ever written. Yet, despite the mountain of evidence one might compile to support that thesis, the First Amendment is clear:  religious exercise may neither be prohibited nor compelled. And so it is with speech. It’s called democracy.

Photo by: mpalis

Court Demolishes Texas Book “Rating” Law

In the 1980s, the Parents Music Resource Center (PMRC), led by Tipper Gore and several other wives of Washington insiders,[1] sought to compel record labels to place stickers on albums warning consumers that the songs within contained “explicit lyrics.” Songwriters, including Frank Zappa, John Denver, and Dee Snider testified in Senate hearings to oppose the label initiative on First Amendment grounds, but in the end, the RIAA agreed to voluntary use of the labels. Predictably, the result was a lot of ridicule of the now defunct PMRC, and the warning labels mostly served to make the albums more attractive to listeners.

Today’s self-appointed defenders of children against “dangerous” cultural material are more aggressive and mean-spirited than the PMRC and, it appears, more incompetent. Both the tenor and the incompetence were recently highlighted in a 59-page opinion handed down by the District Court for the Western District of Texas, eviscerating a law, unironically called READER,[2] that would have required book vendors to engage in a complexly incoherent rating scheme.

The complaint, filed by Book People, Blue Willow Book Shop, American Booksellers Association, Association of American Publishers, Authors Guild, and Comic Book Legal Defense Fund, alleged that, if enforced, the Texas law would violate the First and Fourteenth Amendments. Plaintiffs won a summary judgment on all questions of law, and the state is enjoined from enforcing READER as of the September 18 decision. In sum, Judge Allan D. Albright, a Trump appointee, stated, “READER’s requirements for vendors are so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.”

That is a sober and sobering assessment of the provisions, which appear to have been designed not to reasonably assess books for age appropriateness in school settings, but to ban the sale of certain books by erecting a thicket of compliance too dense and jagged to navigate. Either that, or the law was pure theater and never meant to be enforced because it is so unwieldy. Judge Albright’s opinion is rich with pull-quotes criticizing a law that would have burdened vendors with extraordinary expense (in the millions of dollars) to analyze their catalogs according to undefined terms and methodologies…

The lack of any blueprint for the Plaintiffs to follow creates a blunt reality that under this scheme it is guaranteed that different book distributors and sellers will arrive at different assessments with respect to hundreds if not thousands of books.

Plus, the inevitably broad range of interpretations and applications of READER would be further exacerbated by the authority of the Texas Education Agency (TEA) to overrule a vendor’s rating without any clear guidance or process for appeal…

There is precious little if any language in the statute to ensure that any decision made by the TEA with respect to the rating of any book will be any more ‘accurate’ (whatever that means) allowing for the enormous possibility if not probability that it will be entirely arbitrary and capricious (at best). In other words, vendors must decide between either accepting the state administrative agency substituted speech as their own or being effectively blacklisted.

Specifically, if READER were to be enforced, book vendors would have been required to rate both their current catalogs and “books in active use” according to new state standards for “sexually explicit” and “sexually relevant” material. Given the current climate flush with politicians who routinely conflate sexual identity with sexual conduct, it takes little imagination to guess at the Texas legislature’s intent with a vague category called “sexually relevant.”

For instance, how might a vendor be expected to rate my friend J. J. Austrian’s book about two earthworms getting married when there is no sex in the story at all? Although Worm Loves Worm may be read as allegorical support for same-sex marriage, does that subjective reading make the book “sexually relevant” in some administrator’s mind? J. J. said during our podcast interview that most kids don’t even pick up on a “gay marriage” metaphor—earthworms are hermaphrodites after all—which suggests that adults who have banned the book are likely poor readers of both the story and the intended audience. Now, imagine being a vendor and trying to rate hundreds or thousands of titles in context to the “community standards” of all the disparate communities across the State of Texas. “It is an open question whether this community standard is based on Austin, Texas, or Onalaska, Texas—or any of the more than 1,200 incorporated municipalities across Texas,” the opinion states.

There are too many moving parts in this judgment to discuss in one post, but I think the bottom line is that laws like READER aren’t about protecting children, or even about notifying parents about content, as the PMRC intended. While any state has a right and authority to erect a system for vetting materials purchased by its schools, sloppy, overbroad, Catch-22 laws like READER, especially in the current climate, are arguably about little more than hating gay and trans people.

I would challenge anyone to find young children’s literature that contains “sexually explicit” material, as defined by law[3] or common sense, let alone find the mythical Anais Nin picture book in a school library. On the other hand, if “sexually explicit” or “sexually relevant” are terms that Texas lawmakers intended to encompass stories in which a character has two dads, or stories about young people struggling with gender identity, those terms are as illiterate as they are constitutionally unworkable.

For as long as I’ve been politically conscious, “conservative” Americans have claimed to oppose the nanny state and to value individual effort. So, maybe parents who don’t want their children reading certain books can stop asking the state to do their parenting for them, read the damn books themselves, and make the individual decisions they deem necessary. Because there is a world of difference between a personal choice to restrict access to a book for one’s own child and demanding that a book disappear from the shelves for all children. Fortunately, the latter can rarely be achieved without violating the Constitution.

[1] Also Susan Baker, Pam Howar, and Sally Nevius.

[2] Restricting Explicit and Adult-Designated Educational Resources Act

[3] “The Miller test [for sexually explicit material] requires the following elements: ‘(a) whether the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’”

Photo by: shutter2u

Book Bans Should Remind Library Groups that Authors’ Rights Matter

If I believed in Hell and a “special place” reserved for certain villains, I would say that one of those suites in the stygian underworld is the destiny of all book burners. And lately, it seems that room is getting overcrowded. According to a recent story in The Guardian, “the ALA has been tracking bans for two decades and reported that 2021 was the worst year for attempted censorship yet, with 1,597 books challenged,” writes Maeve Higgins.

Higgins reports that certain conservative groups in the U.S. are targeting libraries through a variety of political mechanisms with the purpose of banning books that include or address LGBTQ+ rights, race, sexuality, and the usual catalog of verboten lit among the mouth-breathers. Meanwhile, the Neo Nazis and Proud Boys are simply showing up at library events with the purpose of intimidating staff and visitors.

Book bans are nothing new, of course, but if librarians are sentinels defying those forces, I would remind the leadership of the American Library Association (ALA) et al. that the authors are not only on the same side but are often directly in the crosshairs of censors. And what protects the author best is the market. When copies of Maus sold out after a Tennessee school board banned the book, the response was more than satisfying—it was important. Because that’s how the market protects the voice of Art Spiegelman and the voice of the next author who writes the next book some idiot wants to destroy.

I mention this because when it comes to copyright law, it’s almost as if the ALA and other library associations forget that behind that book about race or gender or the Holocaust—or whatever topic frightens the snowflakes on the far right—is an author. Maybe the author is gay or Black or trans or Jewish, or some combination of these and other experiences that are as worthy of expression through storytelling as any other. But the author’s financial reward for her labor is precarious at best.

The median income made from writing alone is $20,300 per year, and those who say that this is due to capitalism and the greed of publishers have no idea what they’re talking about. Even with its myriad imperfections, only a free market can produce the kind of diversity in literature and cultural works we enjoy in the U.S., and foundational to that market is the bundle of authorial rights protected by copyright law. It should be obvious that library organizations are the author’s natural ally on these matters, just as they stand shoulder-to-shoulder to oppose censorship. But sadly, the connection seems to elude the ALA and many of its cohorts.

To be clear, I do not believe that individual librarians tend to forget the authors. In fact, I am certain this is not the case. The individual librarian is often the author’s best friend and strongest advocate. But your local librarian is also not the person who decides which policies the ALA et al. pursue, and in the area of copyright law, these groups have wasted extraordinary time, energy, and money on efforts to weaken copyright rights in ways that would not only harm authors, but which would obviate the need for most libraries before long.

To be absolutely blunt about it, the library associations have been duped on copyright issues. Not because they are fools, but because they mean well. Their best intentions have been used against them by parties whose motives—whether ideological, financial, or both—demand opposition to the copyright rights of authors. For instance, the ALA has recently expended vast resources pursuing state legislation to undermine ebook licensing models, despite the fact that these bills are unconstitutional on their face and, when we look at the numbers, appear unnecessary to the purpose of serving library communities.

The library associations have also backed commercial ventures seeking to distort the fair use and first sale doctrines in copyright law, revealing a shortsightedness that is hard to fathom—both because it turns allies into antagonists, and because some of those commercial ventures would swallow the role of many libraries. Equally naïve is the tacit endorsement library groups have given to the Internet Archive’s invented theory of “Controlled Digital Lending,” which would aggravate the economic precarity of authors and would be hazardous to libraries everywhere.

If IA’s founder Brewster Kahle achieved his stated ambition to build a free repository for “every work ever created,” what do the library associations imagine happens next? While the number of professional writers would be decimated, libraries across the country would be shuttered as obsolete relics. After all, if one segment of a community will vote to defund the local library for hosting Drag Queen Story Time, and the readers in that same community can get everything from a central database on the web, who will pay to keep a library’s doors open and why?

And before long, which entity is really going to own and control that universal repository of everything? Google? Amazon? Meta? If you think localized book bans are bad, imagine Meta and its invisible star chamber influencing books the way they currently moderate comments on Facebook. I would think most librarians are wise enough students of history and current events to see where weakening authors’ rights can lead, which brings us to the question of who convinced these associations to pursue copyright boondoggles and make unnatural adversaries of authors?

Ivory tower academics and lobbyists who receive substantial funding from the tech industry are at the forefront of all efforts to weaken authors’ rights, including initiatives alleged to be in the interest of libraries. Just review the names of the amici who filed for the defendant in Hachette et al v. Internet Archive, and it will not take long to see the intersection of Big Tech money and advocacy of IA’s false claim to be a surrogate for “all libraries.” Such proximity to Silicon Valley should be a bright yellow flag for the ALA, but like the frog carrying the scorpion, they remain willfully blind to the true nature of that industry and its utopian promises.

Librarians on the front lines in the contemporary assault on literature should keep in mind that there is more than one way to prevent a book from being read; and censorship, infuriating as it is, has often been defeated by the market. A far more effective means to silence a multitude of writers would be to ensure that their books are never written in the first place, and one way to achieve that end is to weaken the copyright rights of authors and further limit their power to change the world.