A coalition of booksellers and book industry advocacy groups filed a federal lawsuit this week seeking to strike down a controversial new book banning law in Texas. Among the law's provisions is one mandating “library material vendors,” including booksellers and publishers, to create and implement a rating system for books sold into Texas schools and school libraries based on the book's “sexual” content. The 28-page complaint claims that the law—which is set to take effect on September 1—would impose sweeping, vague, and unconstitutional content-based restrictions on readers and unduly burden booksellers.
“By giving the state unbridled and arbitrary discretion to declare books ‘sexually explicit’ and ‘sexually relevant’ and prohibit the sale of constitutionally protected materials by a bookseller, with no recourse and no provision for judicial review, the [law] constitutes a prior restraint that violates the First and Fourteenth Amendments to the U.S. Constitution,” the complaint alleges. If the law is allowed to take effect, the complaint claims, it would “cause a recall of many books in K-12 public schools, bans of even more, and the establishment of an unconstitutional—and unprecedented—state-wide book licensing regime that compels private companies and individuals to adopt the State’s messages or face government punishment.”
The 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.
Dubbed the “Reader Act” (formerly known as HB 900), the law was passed on April 20 and signed by Texas governor Greg Abbott on June 12—although the complaint refers to the law under an apt new shorthand, referring to it throughout as the “Book Ban.”
Among its provisions, the new law requires book vendors to review books—including both new books and books it has previously sold—and to rate them, under a vaguely articulated standard, to be either “sexually explicit” (if the book includes material that would be “patently offensive” by community standards) or “sexually relevant” (if the books portrays any kind of sexual conduct). Booksellers are banned from selling books rated “sexually explicit” to schools, and students would be able to access books rated as “sexually relevant” only with written parental consent.
Furthermore, the suit notes, the state has the power to “review and overrule the ratings for any book,” effectively imposing a state standard. There is no transparency requirement for the state, and no appeals process. And if a bookseller or publisher refuses to adopt the state’s rating, it can be barred from selling to Texas schools “unless and until the bookseller acquiesces to the government’s demands.”
In a statement, plaintiff Valerie Koehler, owner of Blue Willow, called the law unfair to local communities across the state “who have the right to set their own standards” and argued that it is simply “not viable” for book vendors: “We would be forced to seek legal opinions about every book we will sell and have sold. We do not have the human or capital resources as a small independent bookshop to comply with the law as it is written.”
Plaintiff Charley Rejsek, the CEO of BookPeople, agreed. “Setting aside for the moment the fact that this law is clearly unconstitutional, booksellers do not see a clear path forward to rating the content of the thousands of titles sold to schools in the past, nor the thousands of titles that are published each year that could be requested by a school for purchase, neither do we have the training nor funding needed to do so,” Rejsek said. “In addition, booksellers should not be put in the position of broadly determining what best serves all Texan communities. Each community is individual and has different needs. Setting local guidelines is not the government’s job either. It is the local librarian’s and teacher’s job, in conjunction with the community they serve.”
A joint statement from the ABA, AAP, Authors Guild, and Comic Book Legal Defense Fund said that the suit seeks to "protect the basic constitutional rights of the plaintiffs" and to "restore the right of Texas parents to determine what is age appropriate and important for their children" without government interference or control.
"It is central to the First Amendment that the government can neither restrain nor compel speech, but this law will force booksellers to label constitutionally protected works of literature and nonfiction with highly subjective and stigmatizing ratings, effectively forcing private actors to convey and act upon the government’s views even when they disagree," the statement reads.
In a statement, Rep. Jared Patterson, one of the bill's authors, said he had anticipated the suit and took political aim at the plaintiffs. "Having fought against sexually explicit content in schools for the past 18 months, I fully recognize the far left will do anything to maintain their ability to sexualize our children," Patterson said. "I simply say, bring it with everything you have, because I don’t want to hear any excuses when we put the final nail in the coffin of your woke agenda."
It's Not Just Political—It's Bad Business
For the small local Texas businesses involved in the lawsuit, it's not only about the freedom to read. It's about their livelihoods too.
"The hours, the payroll that it would require for us to check and rate every book we sell, and then do it retroactively as the law implies we must do, is just absurd," Koehler of Blue Willow explained to PW. "Our job is to sell, not rate, books.”
Koehler’s store is a popular destination for parents and children to buy books in the wealthy western suburbs of Houston. It runs hundreds of events a year, including numerous author visits to schools and three book festivals for children and teens, including Bookworm Festival, Tweens Read, and Teen BookCon.
“We estimate that school sales account for 20% of our annual revenue,” Koehler said, “but the amount of marketing and awareness tied to our relationships with local schools cannot be measured. Our work with children, teens, parents, teachers, and schools is what got us known in our community.”
Already, several school districts have begun reportedly begun pulling books from teachers' classroom libraries in anticipation of the new law. In the city of Katy, west of Houston, for example, the school board (persuaded by members supported by right wing group Moms for Liberty) has said that it will not put any new books in circulation until the books are reviewed for content. In all, as many as 20 school board candidates supported by Moms for Liberty have been elected to school boards in Texas, including in Bexar, Denton, Fort Bend, Harris, and Tarrant counties.
Rejsek of BookPeople, who has led the fight against the law among the state’s booksellers, said the law is a form of “intimidation” by lawmakers. “The goal is to stop us from selling books to schools. It is as simple as that,” she told PW. “When they debated this in the legislature, one of the representatives said it would affect only a handful of suppliers, fifty at most. But the actual figure is hundreds—both big book jobbers like Follett, large independent bookstores like ourselves, and any number of smaller stores across the state.”
Some booksellers in the state feel specifically targeted by the law. Lauren Pronger opened Chapterhouse Bookstore, a popup in Amarillo, a little more than a year ago. The store focuses on selling “GSRM (gender, sexual, and romantic minorities), racialized, and migrant literature” in a community in which it has not previously been widely available.
“Most of our customers ask for banned books...and we often carry the type of stuff they won't see elsewhere,” Pronger told PW. “Many will see Heartstopper, for example, or a book with a hijab on the cover like Ayesha at Last, get very excited and start asking for all the gay or Muslim books we have."
Pronger acknowledged that the law won’t change the store's relationship with its customers: “Most of our institutions and classrooms were already in ‘compliance’ with these book banning bills before they ever existed, so it hasn't changed the local landscape much.” But the law will take away an opportunity to potentially build the business. “I was hoping to become an official school vendor in the near future and now that's not going to happen, as I cannot afford being blacklisted," Pronger said. "So HB 900 has significantly limited my growth and reach within my community as a small business, but has also solidified my bookstore's identity as the place to get banned books.”
The lawsuit in Texas is the latest—and perhaps most high-profile—suit in an escalating legal counteroffensive being waged by freedom to read advocates in response to an ongoing, politically-motivated surge in book bans and state-level legislative attacks on the freedom to read. According to a recent PEN America report, Texas continues to lead the nation in book bans.
In June, a library-led coalition of 18 plaintiffs, including the same industry associations suing in Texas, filed a federal lawsuit challenging a new Arkansas law, Act 372, that would, among its provisions, expose librarians and booksellers to criminal liability for making allegedly inappropriate books accessible to minors. Signed into law by governor Sarah Huckabee Sanders on March 30, that law is set to take effect on August 1.
In February, the ACLU joined with librarians in Missouri to file a federal suit over Senate Bill 775, a school library obscenity law that opponents say forces librarians to censor their collections under the "threat of arbitrary enforcement of imprisonment or fines."
In March, library advocates in Llano County, Texas, won a preliminary injunction and order to reinstate more than a dozen banned titles at their local public library and to stop future bans while the lawsuit proceeds. In his order, federal judge Robert Pitman held that the library leaders infringed the constitutional rights of their users by unilaterally removing books they deemed inappropriate or disagreed with. Among the books ordered restored: Caste: The Origins of Our Discontents by Isabel Wilkerson; They Called Themselves the K.K.K.: The Birth of an American Terrorist Group by Susan Campbell Bartoletti; Being Jazz: My Life as a (Transgender) Teen by Jazz Jennings; In the Night Kitchen by Maurice Sendak; and My Butt is So Noisy! by Dawn McMillan. Pitman's order is now on appeal before the Firth Circuit.
And in May, PEN America and Penguin Random House joined forces with a group of authors and parents to sue school administrators in Escambia County, Florida, over the removal of allegedly inappropriate books from school libraries.
“To be honest, I never thought this law would pass," Koehler told PW of the new Texas law. "No one in their right mind did. Clearly no one thought this through. In one of the most business-friendly states in America, this is one of the most business-unfriendly laws ever passed.”
