The U.S. Court of Appeals for the Eighth Circuit on August 9 vacated a December 2023 injunction blocking parts of Iowa's controversial book banning law, SF 496. But the move could only be a temporary setback for freedom to read advocates, with court watchers noting that the decision also rejected the state's core legal argument: that the plaintiffs lacked standing to challenge SF 496 because the placement and removal of books from public school libraries and classrooms is government speech.
In a brief but thorough opinion, the appeals court held that the plaintiffs in the case—which include the Big Five publishers led by Penguin Random House as well as four bestselling authors—do have standing to sue, and swiftly dispatched with the state’s government speech argument. The government speech doctrine holds that the First Amendment does not impose “a requirement of viewpoint-neutrality” on speech undertaken by the government. But the appeals court soundly rejected the state’s attempt to extend government speech to the selection of books in schools and libraries.
"Contrary to Defendants' contention, the Supreme Court has not extended the government speech doctrine to the placement and removal of books in public school libraries," the appeals court decisions reads, adding that "it is doubtful that the public would view the placement and removal of books in public school libraries" as the government speaking.
"Take routine examples of historic tomes on political science. A well-appointed school library could include copies of Plato’s The Republic, Machiavelli’s The Prince, Thomas Hobbes’ Leviathan, Karl Marx and Freidrich Engels’ Das Kapital, Adolph Hitler’s Mein Kampf, and Alexis de Tocqueville’s Democracy in America,” the court continued. “As Plaintiffs noted, if placing these books on the shelf of public school libraries constitutes government speech, the State 'is babbling prodigiously and incoherently.'"
The decision comes about two months after a rough 30-minute hearing in June, during which the court expressed concern over the appropriateness of the plaintiffs' "facial challenge" to the law—a legal term that applies to a broad claim that a government policy is unconstitutional as written. At oral argument in June, the court suggested that such challenges are “disfavored” by the courts and suggested that district court judge Stephen Locher did not do a proper analysis before accepting the plaintiffs’ facial challenge. Indeed, the court ultimately vacated the injunction on these grounds, and remanded the case back to the district court, finding that Locher court "did not perform the necessary inquiry."
In a statement, Iowa Attorney General Brenna Bird claimed victory. “We went to court to defend Iowa’s schoolchildren and parental rights, and we won," Bird said, in a statement. "This victory ensures age-appropriate books and curriculum in school classrooms and libraries. With this win, parents will no longer have to fear what their kids have access to in schools when they are not around.”
But lawyers told PW that the plaintiffs are likely get the case back before the district court swiftly. And with the standing question now resolved in the plaintiffs's favor, and with the state’s government speech defense knocked out, their chances of success appear strong.
“We are pleased that the 8th Circuit rejected the government speech doctrine, the centerpiece of Iowa's defense of the book ban law,” a PRH rep told PW. “We look forward to demonstrating the unconstitutional sweep of this extraordinarily broad statute.”
The Association of American Publishers also took a positive view of the decision. “While we are disappointed that the motion for preliminary injunction will have to be reheard," AAP reps said in a statement, "we are pleased that the appeals court has recognized the plaintiffs' standing in this case, and that the court agreed with the position laid out in our April 19, 2024 amicus brief that book banning in school libraries is not protected by the Government Speech Doctrine. We look forward to the renewal of the motion in the district court.”
Signed by Iowa governor Kim Reynolds in May 2023, SF 496 bans books with depictions of sex, written or visual, from school libraries, and prohibits instruction and materials involving "gender identity" and "sexual orientation" for students through sixth grade. In response, various Iowa school districts have reportedly already pulled hundreds of titles from their shelves—more than 3,400, according to one study by the Des Moines Register—including a disproportionate number of books that contain LGBTQ characters, historical figures, or themes.
The law prompted two separate legal challenges, heard together. Last November, Lambda Legal and the ACLU of Iowa, together with a number of named plaintiffs in Iowa, filed the first suit to challenge the law, calling it “a clear violation of public school students’ First Amendment right to speak, read, and learn freely.“ Days later, PRH and the Iowa State Education Association, along with bestselling authors Laurie Halse Anderson, John Green, Malinda Lo, and Jodi Picoult, also sued.
On December 29, 2023, Locher delivered an emphatic 49-page opinion and order blocking key provisions of the law, which he found to be “vague” and “wildly overbroad.”
In his decision, Locher said SF 496 sought to cast “a puritanical ‘pall of orthodoxy’ over school libraries,” and acknowledged that the law had already resulted in the improper removal of "hundreds of books from school libraries, including, among others, nonfiction history books, classic works of fiction, Pulitzer Prize–winning contemporary novels, books that regularly appear on Advanced Placement exams, and even books designed to help students avoid being victimized by sexual assault.”
