On May 17, 2023, PEN America, Penguin Random House and a group of authors and parents filed a lawsuit in federal court claiming the Escambia County (Florida) school district and school board violated the First Amendment and equal protection clause of the United States Constitution by removing books from the county school district’s libraries. While the First Amendment claim will undoubtedly generate a great deal of controversy—the First Amendment prohibits the government from restricting speech (which includes publishing), but does this extend to requiring governmental agencies to distribute and disseminate said speech and publications?—I find myself contemplating even more the possible ramifications of a publisher suing a library system for refusing to carry specific titles.
I am glad to see PEN America team up with authors and, perhaps even more importantly, concerned parents to take action against a book ban. The complaint makes the important charge that the school district ignored its own existing review policies as well as the recommendations of school and district review committees in removing these books; this lawsuit addresses not only such failings in this case, but warns other districts across the country that they risk similar legal ramifications for likewise violating policies to restrict themes and messages disfavored by a small but militant group of individuals.
The involvement of a Big 5 publisher is advantageous because it has a vested interest in combatting book banning. Publishers naturally have a general concern with promoting literacy, which—while of course a good in itself—also expands the pool of potential consumers for books. Still more, keeping the works of specific authors on the shelves and in circulation benefits both those authors and their publishers by at least potentially generating interest in other titles by those authors. Therefore, beyond the general societal good of promoting diversity and inclusivity, a Big 5 publisher like Penguin Random House has a financial incentive for opening their deep financial pockets to fund a fight against book bans.
At the same time, however, as much as I oppose book banning and support efforts to overcome the problem, I fear enabling publishers to require libraries to carry their publications could ultimately work to the detriment of libraries and thus, by extension, to the readers the libraries serve.
Big 5 Publishers and Library Ebooks
One example of publishers enacting policies limiting the effectiveness of libraries—and one that, as a digital publisher, is of particular interest to me—involves the availability and pricing of ebooks. The University of Hull Library Blog gives valuable insight—complete with Willy Wonka and cat GIFs—into the high cost of obtaining ebooks for library patrons. Notice two things: first, ebooks are licensed (i.e., rented) for a limited time (frequently two years) rather than purchased; second, the already high price for a single ebook license—for example, the title costing £800 for only one reader at a time—can be raised exorbitantly if a title becomes popular.
The issue, the American Library Association explains, is that “publishers and ebook aggregators are preventing libraries from acquiring ebooks with fair licensing (or purchasing) terms that would allow libraries to adequately provide continual access to them.” The problem is so acute that not only are legal specialists recommending the federal government implement the First Sale Doctrine and Sherman Act to prevent predatory pricing by publishers (and specifically Big 5 publishers), but politicians on both the Left and Right in a number of states are attempting to pass legislation regulating ebook licenses.
You know the exploitation of libraries by major publishers has gotten out of control when opposition to the practice inspires bipartisan support. People from a wide array of political persuasions have realized that ultimately, as Ali Petot says in the Washington University Law Review, the ebook prices and licensing terms imposed by the publishing conglomerates are causing “informational inequality to grow.”
“Nice Little Library Ya Got Here…”
We see from the above that Big 5 publishers are not necessarily concerned with the best interests of libraries. This problem could be greatly exacerbated if Penguin Random House successfully sues the Escambia County school district and forces it to carry specific titles in its libraries. I believe there are two potential problems that could arise.
The first is that publishers could, almost in the manner of extortion rackets, force libraries to purchase specific titles. Imagine a conversation from a publisher’s salesperson like this:
Nice lil’ libary ya got here. Say, I noticed youse ain’t got dat new book by (insert writer du jour). Boss says maybe we shouldn’t sell ya any books if’n youse got a problem wit dat one. An’ it be a shame if’n somebody wuz ta sue ya over dis…
While most publishers do not have salespersons who sound like the gangsters in a Bugs Bunny cartoon, the basic point is clear: publishers could effectively define and control all terms regarding book distribution. I can easily envision a scenario in which a publisher demands certain of their titles (or specific minimum numbers of a title) be purchased and/or licensed, and then demands ever-larger (and possibly shorter-term) licensing contracts for the library to avoid being dragged into court.
Even worse, if a publisher can successfully utilize legal strong-arming to force a library to carry specific diverse titles, what is to prevent it from using similar tactics—or, more likely, simply the threat of such tactics—to force a library to carry anti-diversity screeds (given sufficient financial incentive for the publisher)? Publishing conglomerates ultimately care more about moving units than transforming society: the same Big 5 publisher that published (through an imprint) Tiffany Jewell’s This Book is Anti-Racist also published (through another imprint) Ron DeSantis’ The Courage to Be Free.
This brings us to another problem: publishers being able to force libraries to carry select titles would also contribute—ironically, given the context in which this discussion is taking place—to an increasingly homogenous and non-diverse publishing scene. Bookstore owner Richard Howorth, in looking at the threat of the Big 5 publishers further consolidating into the Big 4 (which, at least at this time, is not happening), worries about “the writers and books that will not get published or could be otherwise marginalized because of this even greater concentration of power.” Publishers being able to force libraries to purchase and/or license specific titles would not only increase the focus of the publishers on those few titles for which they can make such demands, but would also further reduce the number of “less-pushed” titles libraries would be able to afford. This would result in even fewer publications from new and marginalized writers, and still fewer of those limited publications making it into the hands of the library patrons who desperately need such reading.
A Hopeful Scepticism
None of this means my concerns necessarily will come to pass; I certainly hope they do not. Penguin Random House’s involvement in the lawsuit is probably motivated primarily by support for diverse and inclusive literature (with the added incentive of the financial benefits I mentioned above) and thus, while I would be more comfortable if the company had provided support without directly joining in the lawsuit, I nonetheless readily acknowledge it is not a given the Big 5 publishers will use the precedent—if the lawsuit is successful—to put the screws to libraries.
But they could.
I therefore applaud this action to overturn censorship and return diversity to a school district’s libraries, and hope to see both this book ban and others overturned. I also encourage people to ensure that the good done by this isn’t twisted by powerful corporations to further harm libraries and marginalize diverse authors and their potential readers.
