By Christopher M. Finan, President of the American Booksellers Foundation for Free Expression
Booksellers sent a message to the U.S. Supreme Court this week.
In April, the Court will hear argument in an Ohio case that could make it harder to challenge unconstitutional laws before they can have a chilling effect on speech. Because of the importance of free speech, a person who believes that a law violates their First Amendment rights may seek a court ruling on its constitutionality and can request a preliminary injunction that suspends the law until the court has made its decision. This protects plaintiffs from the threat of prosecution and lessens the danger that they will engage in self-censorship out of fear they might run afoul of the law. Booksellers can continue to do business normally while the issue is being litigated, which often takes years.
Booksellers have been able to establish “standing” — the right to file a legal challenge to violations of the First Amendment — whenever we have “an actual and well-founded fear” that the law will be enforced against us. In the current case, Susan B. Anthony List v. Driehaus, the Court will decide the constitutionality of a stricter test that is applied by the U.S. Court of Appeals in the Sixth Circuit, which includes Ohio. (There are two issues in the case, which involves a challenge to a law regulating campaign advertising. Our brief addresses the one that is of special importance to booksellers and librarians.)
The Sixth Circuit has ruled that those who would challenge a law must show that a prosecution would be “certain and successful” before the court will hear their case. This makes it much harder and more expensive to challenge censorship laws and creates a particularly unappetizing choice for booksellers — either self-censor or run the risk of a criminal prosecution.
That is why the American Booksellers Foundation for Free Expression has joined the American Booksellers Association, the Association of American Publishers, the American Library Association, and the Comic Book Legal Defense Fund in filing a brief that asks the Court to reaffirm the current test for filing “pre-enforcement” challenges. The Court will hear oral argument on April 22. A decision is expected before the end of the term in June.
The filing of our latest amicus brief is a particularly appropriate moment to consider the important role that booksellers play in defending free speech in court.
Our brief was drafted by lawyers for Media Coalition, the organization that has defended the First Amendment rights of booksellers and other media groups since 1973. Because booksellers have been plaintiffs in all the pre-enforcement challenges that have been brought by Media Coalition over the last 35 years, they were particularly eager to have some of them join the brief.
Surprisingly, we didn’t have a complete count of those cases. When we did the math, we discovered that there were 23. More than 30 bookstores and regional bookseller associations had been plaintiffs in the legal actions.
The history of those cases provides a picture of the variety of threats to free speech that have confronted us over the years. Here are the cases that were brought by the 14 stores and associations that signed this most recent amicus brief:
In 1988, Village Books in Bellingham, Washington, joined the Pacific Northwest Booksellers Association in challenging a Bellingham ordinance that authorized civil suits against retailers that sold books and other material depicting the “sexually explicit” subordination of women. In challenging a similar ordinance in Indianapolis, ABA and other Media Coalition members pointed out that many books fell within that very broad definition, from Tom Jones and The Arabian Nights to bestsellers by John Updike, Anais Nin, Ian Fleming, Sidney Sheldon, Judith Krantz, and Harold Robbins. The law was declared unconstitutional, a decision that was affirmed by the Supreme Court.
In 2000, Changing Hands Bookstore in Tempe, Arizona, sued the state over a law banning the display of material that is “harmful to minors” on the Internet. The law might have prevented bookstores from posting material with sexual content on their websites, including book jackets and excerpts from many classic and mainstream works.
In 2001, the Southern Independent Booksellers Alliance, then known as the Southeast Booksellers Association, joined Media Coalition in suing South Carolina to block enforcement of a similar law.
In 2004, Schuler Books & Music in Grand Rapids, Michigan, and the Great Lakes Independent Booksellers Association went to court over a law banning the display of material that is “harmful to minors” in bookstores and other retail establishments. The law would have forced booksellers to put works with sexual content behind the counter.
In 2005, The King’s English Bookshop and Sam Weller’s Books, both in Salt Lake City, sued over a law banning the display of material “harmful to minors” on the Internet.
In 2008, Annie Bloom’s Books and Powell’s Books, both in Portland, and Paulina Springs Books in Sisters, Oregon, urged the courts to strike down a law banning the dissemination of sexually explicit material to minors. The definition of “sexually explicit” was so broad it could have applied to sex education material and books like Forever and A Handmaid’s Tale.
In 2010, Harvard Book Store challenged an Internet censorship law similar to the ones passed in Arizona, South Carolina, and Utah.
In 2013, the Tattered Cover Book Store in Denver, Colorado, and the Mountains and Plains Independent Booksellers Association went to court to overturn a law banning the display of High Times and other marijuana magazines in places where minors might see them.
The participation of bookstores was crucial in all these cases. Censorship laws that target material that is “obscene,” “harmful to minors,” violent, or otherwise objectionable are touted as necessary for promoting public safety and protecting women and children. The role of booksellers has been to make clear that these apparently well-intended laws would deprive people, including older minors, of important works that they have a First Amendment right to purchase. By drawing on their deep and wide-ranging inventories for examples, booksellers are the most powerful witnesses to the danger of censorship laws.
We owe a lot to our bookseller plaintiffs. It takes courage to challenge a new law. There is always a danger that a customer will not understand why a bookstore opposes a popular bill. Despite that, ABA and ABFFE have never had trouble finding bookstores to join our cases.
As a result, we can boast an enviable record. We have succeeded in overturning or narrowing all 23 of the laws that we have challenged.
The courts have a history of listening to what booksellers have to say. We have every reason to believe that the Supreme Court will pay attention to our latest brief.
Chris Finan is president of the American Booksellers Foundation for Free Expression, the bookseller’s voice in the fight against censorship. Before he joined ABFFE, he was executive director of Media Coalition, which defends the First Amendment rights of booksellers, publishers, librarians and other media groups.