On Monday morning, Federal Judge Alan D. Albright heard the second round of oral arguments in Austin, Tex., on a motion to block HB 900, Texas’s controversial new book rating law. The judge heard a first round of arguments on August 18. At both hearings, Albright expressed the urgency to make a ruling on the motion prior to the law taking effect on September 1.
To recap: plaintiffs in the case include two Texas bookstores—Austin’s BookPeople and Houston’s Blue Willow Bookshop—together with the American Booksellers Association, the Association of American Publishers, the Authors Guild, and the Comic Book Legal Defense Fund who sued over the passage of the bill, which was signed by Texas governor Greg Abbott on June 12. Among its provisions, the law requires book vendors to review books and to rate them for sexual content under a vaguely articulated standard. Books rated “sexually explicit” (if the book includes material deemed “patently offensive” by unspecified community standards) would be banned from Texas schools. Books rated “sexually relevant” (if the books portrays any kind of sexual conduct) would be available only with written parental consent.
As articulated in their July 25 complaint, the plaintiffs argued that the law comprises an unconstitutional restraint on the freedom to read and that it imposes an untenable burden on the book vendors tasked with rating millions of books. Earlier this month, Texas attorneys filed a motion to dismiss the attempt to block the law, arguing that the plaintiffs lack standing to challenge it.
At Monday's, the state's attorneys argued that there was not yet any “irreparable harm” from the law and that there would be no enforcement of the the law until after April 1 of next year, when the initial lists of vendor book ratings are due to be filed with the Texas Education Agency. The plaintiffs, in turn, argued that any work to comply with the law would have to begin immediately and was itself a form of harm, as it was an untenable burden on the plaintiffs. Furthermore, the plaintiffs' attorneys pointed out that there was no guarantee that the state would not choose to enforce the law immediately on September 1, though the consequences of that enforcement were themselves unclear. They then suggested that, at the very least, the court should rule to enjoin the law until April 1, 2024.
At the first hearing, the judge appeared inclined to side with the plaintiffs, but Monday’s hearing set a different tone. The judge challenged the plaintiffs' position more often, noting that the schools in Texas were not obliged to purchase books from bookstores, publishing houses, or any other book vendors, claiming that book vendors are not any different than any other supplier who provides products or services to the state, which is allowed to impose guidelines for doing business, he said. In filings before the hearing, Texas attorneys argued that the state has "wide authority" regarding public education, including the ability to use "statutory compliance as a screening tool."
The plaintiffs' attorneys countered that the damage from the law was already being done, pointing to Katy Independent School District, a school district in suburban Houston, which has announced that it would not buy any new books until the books were rated next year. Valerie Koehler, owner of Blue Willow Bookshop, had previously noted that Katy ISD has bought more than $200,000 from Blue Willow in the past 5-7 years, making it a significant customer. That sales channel will now be lost for the time being.
In another major sticking point, the plaintiffs argued that the law should be blocked because it was both vague and made untenable demands on the booksellers to rate books. Their attorney used a passage from the novel Lonesome Dove by Larry McMurtry—which Albright said was his “favorite book”—to demonstrate how challenging it can be to rate a book. In this instance, a love scene between two characters refers to sex, but with ambiguity and in terms that are not explicitly obscene.
Albright posited that the law—with which, the plaintiffs argue, it is impossible to comply due to the immense burden of work—could be met with a technicality: “give a book ‘no rating’ and you are done,” he said, suggesting that the plaintiffs could submit a list of books with a rating of “no rating,” in turn compelling the TEA to then “correct” the rating—in essence, forcing the TEA to rate the book on its own.
Unfortunately, the plaintiffs' attorney pointed out, this would trigger the vendor whose ratings were corrected by TEA to be banned from selling books to school boards—another untenable solution. “If the state wants to rate books,” the plaintiff’s attorney said, “they should do it themselves.”
A ruling is expected later this week, but that has its own set of complications. The judge has broad discretion in issuing injunctive relief, meaning he could let the law stand but still strike down certain provisions.
This story has been updated.