In Amicus Brief, Literary Groups Register Opposition to Iowa Law

Ten publishing and freedom to read organizations jointly filed an amicus brief on July 24 supporting the plaintiffs in Penguin Random House v. Robbins, the lawsuit challenging a 2023 Iowa state law that has enabled the removal of hundreds of books from Iowa K–12 public school libraries. Senate File 496 aims to prohibit any book containing a “description” of a “sex act” from Iowa students.

All of the Big Five publishers, the Authors Guild, and the Iowa State Education Association are among the plaintiffs in the case, along with authors Laurie Halse Anderson, John Green, Malinda Lo, and Jodi Picoult, two Iowa educators, and an Iowa student and parent. Anderson’s Speak and Shout, Green’s Looking for Alaska and The Fault in Our Stars, Lo’s Last Night at the Telegraph Club and A Scatter of Light, and Picoult’s 19 Minutes are among the books the law makes unavailable.

Signatories to the amicus brief include the Association of American Publishers, the Comic Book Legal Defense Fund, and the Independent Book Publishers Association. American Booksellers for Free Expression—the intellectual freedom arm of the American Booksellers Association—and Half Price Books, Records, Magazines, Inc. represent booksellers’ perspectives. The Educational Book and Media Association, Freedom to Learn Advocates, and Freedom to Learn Foundation stand for education. The Science Fiction and Fantasy Writers Association and Sisters in Crime appear on behalf of authors.

In the following days, additional amici were filed by PEN America, the National Education Association, the Foundation for Individual Rights and Expression, and Iowa Safe Schools. PEN America's July 28 brief contended that the law violates the free speech rights of students, publishers, and authors.

Together, the coalition members in the July 24 filing contend that the law is unconstitutional, overbroad, and so vague as to be open to wide interpretation. “The goodwill of the government cannot be relied upon to use an overbroad law responsibly,” they write.

The friends of the court note that “SF 496 does not take into account the work as a whole, a fatal flaw in the law” because it takes sentences out of context from books including Jonathan Evison’s Lawn Boy. They also say that “SF 496 provides a legal basis for eliminating a substantial portion of the history of human creativity from school library shelves” through its “blanket removal” of books including Maya Angelou’s I Know Why the Caged Bird Sings, Toni Morrison’s Beloved, Margaret Atwood’s The Handmaid’s Tale, Trung Le Nguyen’s The Magic Fish, and Art Spiegelman’s Maus.

The amicus brief further emphasizes that “this is not a case about government speech” and that “precedent is clear that a public school library collection is not government speech.” The Eighth Circuit determined in August 2024 that book selection in school libraries is not a form of government speech, and anti-censorship advocates want the appeals court to uphold this position. In June, the U.S. Court of Appeals for the Fifth Circuit shocked First Amendment advocates by reversing a district court’s preliminary injunction in another book removal case, Little v. Llano County in Texas, on the grounds that public library selections indeed may constitute government speech.

Book Removals’ Ripple Effect

Ever since it was signed into law in May 2023, SF 496 has boomeranged from court to court. Judge Stephen Locher of the Southern District of Iowa issued an injunction against SF 496 in December 2023, but this ruling was vacated and remanded for further consideration by the U.S. Court of Appeals for the Eighth Circuit in August 2024. In March of this year, Locher called SF 496 “likely facially unconstitutional under the First Amendment” and again enjoined state defendants against enforcing it. In April, the defendants made another appeal to the Eighth Circuit. That decision is pending.

In his March order for the injunction, Judge Locher argued in part that publishers and authors “are ‘stigmatized’ by the removal of their books” and accusations of peddling obscenity, and that they’re unable “to communicate with their intended audience” when books are taken from shelves.

The writers of the amicus brief echo Judge Locher’s framing. “A book stigmatized as pornography can be seen as too risky to sell,” they write, “especially for an independent local bookstore or comic shop that relies on strong community goodwill, which can in turn affect the choices that publishers make in acquiring or editing new books.”

As Philomena Polefrone, associate director of ABFE, told PW, "This case rightly centers publishers and authors, but what happens to them ripples throughout the entire book industry, including independent booksellers in Iowa. We filed an amicus brief with many of the same organizations when the 8th circuit first heard this case, so the decision was clear to join a brief with them again."

While signatories to the amicus brief are defending intellectual freedom, they’re also envisioning the book industry of the not-too-distant future. IBPA CEO Andrea Fleck-Nisbet said her 501c6 association is strategizing with like-minded groups including the Media Coalition and Copyright Alliance, to bolster indie publishers’ common interests. “As IBPA is evolving as an organization, we are intentionally stepping into more of an advocacy space,” Fleck-Nisbet said.

“From a business perspective, we’re going to see more acute and rapid change in this industry [in the coming months] than we’ve seen in the past decade,” in terms of legislation, technology, and financial matters, Fleck-Nisbet said. IBPA wants to “make it clear that we feel strongly about having a foothold in this space” of advocacy for publishers, authors, booksellers, and libraries.

In the amicus brief, the 10 organizations contend that censorship threatens not only intellectual freedom, constitutionally protected speech, and young people’s access to education, but also the business of authorship, publishing, and distribution. “The reach of SF 496’s unconstitutional restriction of books extends further than just school libraries,” the cowriters explain.

If it stands, they say, SF 496 “will have a direct impact on the ability of the wide range of writers, artists, publishers, distributors, and retailers that amici represent to write, create, publish, produce, distribute, and sell books and literary works of all types, including materials that are scholarly, journalistic, educational, artistic, scientific, and entertaining.”