In the past month, the Authors Guild submitted amicus curiae (“friend of the court”) briefs with other organizations in two First Amendment cases against federal agencies attempting to enforce controversial executive orders by President Trump: Rhode Island Latino Arts v. National Endowment for the Arts in the First Circuit and E.K. v. Department of Defense Education Activity in the Fourth Circuit. Both briefs addressed how the agencies in implementing specific executive orders violated the First Amendment’s protection of free speech and prevented authors from reaching their desired audience.

In Rhode Island Latino Arts v. National Endowment for the Arts, the plaintiff arts groups alleged that the NEA’s decision to “disfavor grant applications that ‘promote gender ideology’” (in an effort to comply with the president’s executive order 14168) violated the plaintiffs’ First Amendment and other rights. In granting the plaintiffs’ motion for summary judgment on that claim, the lower court had found that the NEA’s final notice regarding the implementation of the EO “violates the First Amendment because it is a viewpoint-based restriction on private speech.”

The Authors Guild, along with the National Coalition Against Censorship, the Dramatists Guild, and others, filed an amicus brief (pdf) in connection with the administration’s appeal to the First Circuit. Our brief provides the court with information on how arts organizations around the country already operate under considerable financial strain and describes the importance of the NEA to their funding, making these organizations especially vulnerable to capricious viewpoint discrimination. The amici also provided the court with anecdotes and examples of how artists could be harmed and how art could be chilled:

“[A] Final Notice that implements the Executive Order in any form places arts organizations in an untenable position. Either they must align their artistic output with the federal government’s preferred viewpoints, or face a heightened risk of economic failure by losing access to arts grants.”

In E.K. v. Department of Defense Education Activity, more than 500 books were removed from the libraries of five schools operated by the DoDEA because their content purportedly promoted “gender ideology” in violation of EO 14168; “un-American, divisive, discriminatory, radical, extremist and irrational theories” in violation of EO 14185; or “divisive concepts” such as “scapegoating” based on race or sex in violation of EO 14190 (which eliminates “[f]ederal funding of support for illegal and discriminatory treatment and indoctrination in K-12 schools”). Students and parents were not even informed which books had been removed, an additional erasure of the books and the voices contained in them.

The student and parent plaintiffs had alleged that the DoDEA’s actions violated their First Amendment right to receive information and moved for a preliminary injunction restoring the books to the shelves pending the results of their lawsuit; in this motion, they referred to a similar injunction that had been granted in Crookshanks v. Elizabeth School District, a case brought by the Authors Guild and others in Colorado.  The defendants opposed this motion, saying that the removal of the books was “government speech,” arguing that the “inclusion, or exclusion, of certain materials reflects DoDEA’s expressive act of speech that it wishes to convey to its audience – here, schoolchildren.”

The Eastern District Court of Virginia disagreed and ordered that the books be restored to the five DoDEA schools at issue in the case, finding that the plaintiffs:

“have demonstrated a likelihood of showing that Defendants’ stated motivations for removing over 500 library books set forth an impermissible partisan or political motivation. Plaintiffs contend, and Defendants concede, that the book removals stem directly from the President’s Executive Orders.”

The Authors Guild, Penguin Random House, and Macmillan filed an amicus brief (pdf) in the appeal before the Fourth Circuit, asking it to uphold the lower court’s holding that there is no government speech here and arguing that:

“they and their members are the real speakers, and the books at issue are their speech. These books and the subjects they explore have been frequently targeted in the culture wars of recent years. To protect students’ right to engage with a diversity of ideas across the ideological and experiential spectrum, the Court should reject DoDEA’s government-speech argument and affirm that its book ban violates the First Amendment.”

Read the Rhode Island Latino Arts v. NEA brief here (pdf).

Read the E.K. v. DoDEA brief here (pdf).