A federal judge in Texas is hearing oral arguments this morning on a motion filed by a coalition a booksellers and book industry advocates to block HB 900, the state’s controversial new book rating law, from taking effect as scheduled on September 1. Attorneys for the state of Texas, meanwhile, are asking the court to deny the plaintiffs’ motion for a preliminary injunction, and to dismiss the lawsuit entirely.
Formerly known as HB 900, the new law, dubbed the “Restricting Explicit and Adult-Designated Educational Resources (READER) Act,” was signed by Texas governor Greg Abbott on June 12. Among its provisions, the 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. The law stipulates that books must be declared 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.
Under the law, books rated “sexually explicit” would be banned in Texas schools, while students would be able to access books rated as “sexually relevant” only with written parental consent. Furthermore, the law also gives the state the unchecked 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 their bid to block the law, the plaintiffs claim that the new measure would impose sweeping, vague, and unconstitutional content-based restrictions on readers, in violation of the First and Fourteenth Amendments, and would unduly burden booksellers. If the law is allowed to take effect, the plaintiffs argue, 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.
In response, attorneys for the state say that the plaintiffs lack standing to bring the suit, but that even if the court disagrees and grants standing, the case is without merit. “Plaintiffs’ alleged impending future injury, regarding READER’s obligation to create an initial list of ratings, is entirely speculative,” Texas attorneys argue in an August 16 filing. “Plaintiffs essentially seek the cover of a court order to justify their refusal to comply with READER.”
Among their arguments, Texas attorneys say that the law addresses a legitimate state interest: keeping allegedly inappropriate materials out of Texas schools. They claim that the law is consistent with the Constitution, and that it does not “compel” or “deny” speech of any kind.
“Defendants are not forbidding anyone from any speech; defendants are not forbidding any book from being published, nor are they forbidding the sale of the books containing obscene material in any forum or to any audience outside of Texas schools,” the Texas filing states. “The speech plaintiffs seek to introduce into the schools, unregulated, contains material which is obscene and is therefore not protected under the First Amendment.”
Texas state attorneys argue that it is “ultimately the children of the state of Texas that will suffer irreparable injury if this court grants preliminary injunctive relief.”
Meanwhile, a host of statements and briefs released ahead of today’s hearing illustrate how high the stakes are for the publishing community. In a collective amicus brief, the Association of University Presses, Barnes & Noble, the Freedom to Read Foundation, Freedom to Learn Advocates, and the American Association of School Librarians slammed the Texas law.
“In a specious attempt to allegedly protect children, Texas has passed a draconian law riddled with massive constitutional defects that would effectively prohibit schools libraries from providing their students with a broad array of books, including some of the most seminal works of literature published,” the brief states. “It would impose a blatantly unconstitutional ratings scheme on booksellers, forcing them to label a book with arbitrary ratings invented by the Texas legislature before being able to sell books to school libraries.”
The brief calls the law’s requirement that vendors rate “all books currently available in Texas public school libraries and sold to them in the future” for sexual content an impossible, “Sisyphean,” and “blatantly unconstitutional” task. “A more coercive regime is hardly imaginable,” the brief concludes.
In addition, the major publishers, represented in the suit by the AAP, also took aim at the law in statements provided to PW.
“HB 900 is wrong on principle, unconstitutionally vague, impractical in its application, and punitive in its consequences,” said representatives from Simon & Schuster. “Finding the right books for the right reader involves a series of personal choices uniquely particular to individual students and their parents, teachers and librarians. A legislative mandate to require vendors or publishers to impose ratings on books under an ambiguous standard is a threat to the intellectual freedom of readers. As publishers, we cannot be party to such an arbitrary and intrusive act of self-censorship.”
Reps for Penguin Random House said that “book bans and ratings systems based on subjective, government-determined values” strip Americans of the freedom to make their own decisions. “Penguin Random House publishes books for everyone, and we will defend the right for readers to freely discover and access the books they want and need,” the statement reads. “In the face of unconstitutional content rating systems, we affirm our commitment to parents, librarians, and teachers who judiciously place books in young people’s hands, the authors who write them, and readers, who deserve to make up their own minds about what to read next.”
Reps for HarperCollins said that the law clearly violates First Amendment “by compelling booksellers to adopt government assessments” as their own: “Texas legislators distrust students, parents and school districts in making their own choices and are illegally attempting to impose their own preferences on everyone.”
Hachette officials asserted that “rating books is inferior to existing constitutional standards because it robs parents, schools, and teachers of the right to make decisions for their respective communities and classrooms, instead handing that role to a state entity and private businesses.” They added: “It is our hope that laws that seek to limit access to books and that criminalize teachers, librarians and booksellers will be struck down as unconstitutional and that the choice of what book to read remains unregulated by the states.”
The Clock Is Ticking
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 a surge in 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 a major victory, a federal judge on July 29 temporarily blocked two key provisions of a recently passed Arkansas law that would have exposed librarians and booksellers to criminal liability for making allegedly inappropriate or “harmful” books accessible to minors in the state. In a lengthy opinion and order, judge Timothy L. Brooks concluded that portions of the law are “too vague to be understood and implemented effectively” and that, if enacted, would “permit, if not encourage, library committees and local governmental bodies to make censorship decisions based on content or viewpoint, which would violate the First Amendment.”
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, federal judge Robert Pitman held that the library leaders in Llano County, Tex., infringed the constitutional rights of their users by unilaterally removing books they deemed inappropriate or disagreed with. 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, Fla., over the removal of allegedly inappropriate books from school libraries.
It's unclear how quickly federal judge Alan D. Albright will rule on the motion to block the READER Act from taking effect after today's hearing, but time is of the essence with the law set to take effect on September 1. PW will continue to update this story as information comes in.