U.S. Publishers Push Back Against Book Bans

Last week, a group of leading U.S. publishers launched a lawsuit challenging book bans in Florida and appealing for a restoration of professional standards and evidence-based decision-making in state law. If the publishers succeed, they will set the stage for other businesses and organizations to fight back against new restrictions to constitutional rights that impact public life and corporate policies.

A book ban by any other name 

State and local book bans have proliferated across the U.S. with the purported aim of protecting minors from sexually inappropriate materials. Florida Gov. Ron DeSantis emerged as a leading advocate for book bans, though he prefers to reference parental empowerment instead.

“Florida does not ban books,” a statement from the governor’s office reads. “Instead, the state has empowered parents to object to obscene material in the classroom.”

That observation is more than a little misleading. Freedom of speech is guaranteed by the U.S. Constitution, and parents have always been empowered to object to anything. The issue is what happens afterward. 

The Florida law, HB 1069, stipulates that any objection over “sexual content” triggers the removal of the given reading material from classrooms and libraries within five days, followed by an unspecified period for resolution of the complaint. It does not require an objector to possess any qualifications for describing the complex issue of sexual content.

As a result, books can be taken out of circulation indefinitely based solely on the personal opinion of a single individual.

Book bans and social vigilantism

The seamless transfer of personal opinion to state-ascribed action steps is the essence of social vigilantism, a term used by scholars to describe the “tendency to believe one's beliefs are superior to others' and to attempt to impress one's beliefs onto others.”

Social vigilantism is often disconnected from facts and information. In a recent Kansas State University study published in the journal Personality and Individual Differences, for example, researchers link social vigilantism to “greater tendencies to disseminate and defend one's beliefs, regardless of how well-informed those beliefs are.” The same study noted that social vigilantism is “positively correlated with social dominance orientation, right wing authoritarianism and conservatism.”

In not so many words, that is precisely the focus of the new lawsuit against Florida's HB 1069, jointly announced on August 29 by Penguin Random House, Hachette Book Group, HarperCollins Publishers, Macmillan Publishers, Simon & Schuster, and Sourcebooks. “Hundreds of titles have been banned across the state since the bill went into effect in July 2023,” the publishers state.  

They assert the Florida law violates a 1973 Supreme Court obscenity test. The decision, Miller v. California, requires the opinion of "the average person” to be assessed in reference to wider community standards and state law around obscene speech, along with an assessment of the entire work — not just a line or two — to determine if it lacks “serious literary, artistic, political or scientific value.”

“Serious” is the key word. Seriousness denotes a comparative determination informed by a range of works in public circulation. It sets a far more rigorous standard for removing material from a school library than HB 1069.

“The lawsuit focuses on restoring the discretion of trained educators to evaluate books holistically to avoid harm to students who will otherwise lose access to a wide range of viewpoints,” the publishers assert.

From personal opinion to evidence and expert insight 

The effort to discredit professional insights into key issues of public concern is nothing new. For example, the pro-tobacco campaign of the 1990s, widely attributed to the influential lobbying organization Heartland Institute, seeded the public conversation with doubt over the scientific consensus on the health impacts of smoking. By the early 2000s, lobbyists employed a similar effort to undermine the consensus on climate science.

When the U.S. Supreme Court overturned Roe v. Wade abortion protections in 2022, the Republican-appointed majority ignored evidence submitted by medical professionals and other experts in favor of an unschooled assertion that impacts of harm were impossible to measure.

LGBTQ+ rights have also fallen afoul of anti-professional sentiment, as new state laws deny health services to certain people while ignoring the ample evidence supporting gender-affirming care. The torrent of fact-free allegations of voter fraud that emerged in the run-up to Election Day 2020 cultivated a mini-industry of inexpert “investigators," fanned the flame of the violent insurrection of 2021, and continues to threaten elections today.

By insisting on evaluation by trained professionals, the publishers attacked the very foundation of public policy measures that rely on social vigilantism instead of verifiable information. It remains to be seen if they succeed in court, but the movement to seek constitutional protection for discretion, including professional discretion, shows signs of growing.

Business coalition takes aim at another controversial state law 

In the corporate environmental, social and governance (ESG) movement, for example, last week the American Sustainable Business Council took the unusual step of confronting Texas Comptroller Glenn Hegar and Attorney General Ken Paxton in court. On August 29, the  business coalition filed a lawsuit suit against the two officials regarding their enforcement of SB 13, a state law intended to obstruct firms from following ESG investing principles. 

“Among ASBC’s many projects are efforts to encourage sustainable investing and sustainable business practices. These are all cornerstones of the modern Texas economy. Yet SB 13 takes aim at, and punishes, companies that speak about, aspire to, and achieve this goal,” the group alleges.

To the extent that modern corporate sustainability practices are based on data, evidence, auditing and accounting — and they are — the ASBC lawsuit also cuts to the heart of anti-professional sentiment. 

The suit is also notable because many firms have chosen to address anti-ESG threats simply by continuing to follow the same principles without referring specifically to “ESG.” Some business leaders grappling with a new wave of legislation and lawsuits against corporate diversity, equity and inclusion policies adopted a similar wait-and-see attitude. 

However, corporate leaders may need to take aggressive action on intrusive legislation before the damage is done, and leading publishers and the members of the ASBC show a path that others can follow.