In 2022, U.S. schools saw an unprecedented rise in attempts to ban books. According to PEN America, 1,648 titles were banned in the United States during the 2021-2022 school year. In December 2022, PEN America released its list of the top banned titles of 2022. Here’s how the books stacked up:

• 1. Gender Queer by Maia Kobabe 
• 2. All Boys Aren’t Blue by George M. Johnson
• 3. Out of Darkness by Ashley Hope Pérez
• 4. The Bluest Eye by Toni Morrison
• 5. (tie) The Hate U Give by Angie Thomas
• 5. (tie) Lawn Boy by Jonathan Evison
• 7. The Absolutely True Diary of a Part-Time Indian by Sherman Alexie
• 8. Me and Earl and the Dying Girl by Jesse Andrews
• 9. (tie) Thirteen Reasons Why by Jay Asher
• 9. (tie) The Kite Runner by Khaled Hosseini
• 9. (tie) l8r, g8r by Lauren Myracle
• 9. (tie) Crank (Crank Series) by Ellen Hopkins

How Did We Get Here?

The rise in book bans likely has to do with an increasingly polarized political landscape. The increase in challenges against books and efforts to ban books disproportionality affects material that focuses on sexual orientation, sexual identify, race, and racism. In November 2021, Virginia’s Governor Younkin used a story about a mother who was upset that Toni Morrison’s classic, Beloved, was assigned in her son’s AP English class, as part of his campaign for Governor. He vowed to protect parental rights—and beat his democratic challenger, Terry McAuliffe. Attacks on critical race theory also permeated throughout 2021—and all of this served as a backdrop for the nationwide effort to restrict what kids—and even adults—can read.  

Legal Challenges

In February 2022, the ACLU brought an action in the district court for the Eastern District of Missouri, on behalf of a group of students, arguing that their school district’s ban on eight books, including The Bluest Eye by Toni Morrison (#4 on 2022’s list) and Lawn Boy Jonathan Evison (tied for #5 on 2022’s list), violated their First Amendment rights. The plaintiffs sought to enjoin the defendant school district from allowing parents and students to initiate challenges to library materials and asked the court to restore access to the challenged books. The court ultimately denied the motion. 

In April 2022, a group of local library members in Texas, sued officials alleging that the banning of certain books from libraries violated their First Amendment and the Due Process rights.  

A case in Virginia represented a glimmer of hope in the nationwide rise in book bans. In August 2022—the same month the Missouri district court denied the plaintiffs’ motion for a preliminary injunction—a Virginia judge found the state's obscenity law unconstitutional and dismissed petitions seeking to have Gender Queer (#1 on 2022’s list) and A Court of Mist and Fury by Sarah J. Maas (#33 in 2022) found obscene. Frankfurt Kurnit Klein & Selz PC, along with local counsel David B. Lacy of Christian & Barton, represented Bloomsbury Publishing and Ms. Maas in the proceeding.

The ACLU of Missouri also filed a lawsuit in the Western District of Missouri in December 2022. This time, the ACLU filed suit against the Independence School District arguing that its policy of automatically removing library books after receiving a challenge, before any review or vote has taken place, violates students' First Amendment and Due Process rights.

Laws Restricting What Kids Can Read

Not only was 2022 filled with legal challenges, but states enacted laws restricting the type of material children can read—or created processes for people to challenge the types of books available. In November 2022, Missouri introduced a state law banning sexually explicit content. The amendment to SB 775 makes it illegal for librarians and educators to provide "sexually explicit material" to minors. The bill provides that if a person “affiliated with a public or private elementary or secondary school in an official capacity” provides what is considered "sexually explicit material" to a student, it could be considered a class A misdemeanor, which is punishable by up to one year in jail or a fine of up to $2,000. Tom Bastian, deputy director of communications for the ACLU, told the Columbia Missourian that “it is unconstitutional for Missouri’s lawmakers to threaten teachers and librarians with criminal offenses for observing students’ First Amendment rights." It will be interesting to see whether anyone brings a constitutional challenge against the law, which arguably criminalizes protected speech.

What’s in Store for 2023?

It seems like a lot more of the same—and potentially even worse. With just a month into 2023, efforts to ban books have not slowed. A school board in Tennessee started off the year with a vote on whether to ban Ways to Make Sunshine by Renee Watson, a children’s book about a young black girl. The vote was possible because of a new Tennessee law, passed in August 2022, which allows parents, school employees, or other complainants to appeal the decisions of locally elected officials on challenged books as being “inappropriate for the age or maturity levels.” In Pennsylvania, the Central Bucks school district is considering challenges to five books—Gender Queer by Maia Kobabe (#1 on 2022’s list), This Book is Gay by Juno Dawson, Lawn Boy by Jonathan Evison (tied for #5 on 2022’s list), Beyond Magenta by Susan Kuklin, and Me, Earl, and the Dying Girl by Jesse Andrews (#8 on 2022’s list)—because of a 2022 regulation that now permits any parent or district resident to request a book be removed from library shelves. The new library policy focuses on whether the book is “inappropriate” for including “sexualized content.”

Takeaways

As attempts to ban books continue across the country, we will likely continue to see states aggressively and “creatively” attempt to pass legislation that would impact the rights of adults and children to read what they like. Practitioners representing authors, publishers, and booksellers should be prepared to consider challenging the constitutionality of such regulations and statutes on First Amendment and Due Process grounds.

This post is for general information purposes and is not intended to be and should not be taken as legal advice.

The Virginia cases are In re: A Court of Mist and Fury, case number CL22-1984, and In re: Gender Queer, a Memoir, case number CL222-1985, in the Virginia Beach Circuit Court.