A new state law requiring school library book vendors to rate books according to sexual content is unconstitutional and unduly burdensome on booksellers, Waco-based U.S. District Judge Alan Albright said in an order this week blocking its enforcement.
Albright granted a preliminary injunction in favor of book industry plaintiffs, preventing state agencies from enforcing House Bill 900, which took effect Sept. 1.
Albright blasted the new law in 59-page order issued Monday, saying it is vague in defining “sexually explicit” content and violates the First Amendment’s free speech guarantees. He declares that “state of Texas impermissibly seeks to compel an individual or corporation to create speech that it does not wish to make, and in addition, in which it does not agree with.”
The bill, called the Restricting Explicit and Adult-Designated Education Resources Act, would have required school book vendors to issue ratings relating to “sexually relevant” or “sexually explicit” material before selling any books to school districts. The sale of “sexually explicit” books would be banned.
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The bill also required vendors to compile and submit to the Texas Education Agency lists of books rated to be sexually inappropriate that were sold to districts before the bill became law and list on their websites all books rated as sexually inappropriate.
The bill also gave the TEA the unilateral power to declare books as sexually explicit.
In the order, Albright agrees that children should be protected from obscene content in school. However, he said the law puts too much of a burden on booksellers to determine whether sexual content is impermissibly offensive, and provides no appeals process if the Texas Education Agency overrules their determination.
“READER misses the mark on obscenity with a web of unconstitutionally vague requirements,” Albright wrote. “And the state, in abdicating its responsibility to protect children, forces private individuals and corporations into compliance with an unconstitutional law that violates the First Amendment.”
The lawsuit against the Texas State Library, Texas Board of Education and the Commissioner of Education was filed July 25 by several Texas book vendors, including Book People Inc., American Booksellers Association, Association of American Publishers, Authors Guild Inc. and the Comic Book Legal Defense Fund. The plaintiffs are represented by Austin law firm Haynes & Boone, while the state is represented by the Office of the Attorney General.
In the initial complaint, the vendors claim the bill creates an “unconstitutional regime” of compelled speech. It states that the law punishes vendors who refuse to rate books or adopt the government’s ratings by blocking them from selling books and publicly shaming them on the TEA’s website. The complaint also takes issue with the lack of an appeal to TEA designations.
Albright was appointed by President Donald Trump in 2018 to be Waco Division federal judge for the Western District of Texas. He held the hearings in Austin for the Austin division of the district in late August.
Siding with the plaintiffs, Albright writes that provisions put booksellers in an “impossible position” due to the high cost of compliance with issuing ratings. Albright noted that one of the plaintiffs estimated the cost to rate each book to be between $200 and $1,000, plus an additional $4 million to $500 million to read and rate books already sold to districts, well over the total sales of $1 million per year the vendor sees.
Albright also agreed with plaintiffs that the READER Act “fails to inform the public or any Plaintiff whose community standard it is referencing. It is an open question whether this community standard is based on Austin, Texas, or Onalaska, Texas — or any of the more than 1,200 incorporated municipalities across Texas.”
Consequently, he said it is “guaranteed” that different book distributors and sellers would issue conflicting ratings for books.
HB 900 has already an impact on Texas schools, spurring Fort Worth Independent School District to shutter all of its libraries in August to hunt for explicit materials, removing 100 books in the process. Katy ISD also decided earlier this year to halt the purchase of any new library books until April in order to wait on the Texas State Library and Archives Commission to adopt school library standards.
In a joint statement, the executives of each of the plaintiff companies said they look forward to the final resolution of the lawsuit.
“We are grateful for the Court’s swift action in deciding to enjoin this law, in the process preserving the long-established rights of local communities to set their own standards; protecting the constitutionally protected speech of authors, booksellers, publishers and readers; preventing the state government from unlawfully compelling speech on the part of private citizens; and shielding Texas businesses from the imposition of impossibly onerous conditions,” the plaintiffs said.
The TEA and the office of the Attorney General did not immediately respond to email and phone messages requesting comment.