Lawsuit: Coalition of Local and National Booksellers, Authors and Publishers File Suit to Challenge New Censorship Law and Defend the Right of Free Expression in Texas
Today a coalition including Texas bookstores, national booksellers, authors and publishers filed suit in the US District Court for the Western District of Texas, Austin Division, challenging a new Texas law that would require independent bookstores, national chain bookstores, large online book retailers, book publishers and other vendors to review and rate millions of books and other library materials according to sexual content if those books are sold to school libraries, and to do so according to vague labels dictated by the state without any process for judicial review.
The Law Violates the First and Fourteenth Amendments
The law violates the First and Fourteenth Amendments by, among other things, compelling speech, imposing unconstitutional prior restraints, regulating speech with impermissibly vague and overbroad terms, imposing unconstitutional content-based restrictions, delegating the power to regulate speech to private entities, and violating the due process rights of those affected to object, appeal, bring claims for damages, or seek judicial determination of content labels and distribution restrictions.
Literary Classics Will be Implicated
As noted in the complaint, during debate about the new law some Texas Legislators warned that the overbroad language “could result in the banning of many classic works of literature, such as Twelfth Night, A Midsummer Night’s Dream, Romeo and Juliet, Of Mice and Men, Ulysses, Jane Eyre,The Canterbury Tales, I Know Why the Caged Bird Sings, and even the Bible.” One lawmaker, a former schoolteacher, said the Ban would likely prohibit school libraries from offering the quintessential Texas novel Lonesome Dove.
Plaintiffs in the case include two Texas bookstores, Austin’s BookPeople, and West 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.
What the Law Would Do
The new law, “The Reader Act” (formerly HB 900), would require vendors, including local and national bookstore owners, to determine “current community standards of decency”and subsequently assign “sexually relevant” or “sexually explicit” labels to books and other library materials based on the presence of descriptions or depictions of “sexual conduct.”
It forces booksellers to express an opinion on constitutionally protected works of literature and nonfiction based on the government’s vague, ambiguous, and stigmatizing standards, not their own standards. If the State disagrees, it can overrule the rating for any book that it believes was “incorrectly rated.”
If a bookseller fails to provide the State’s chosen rating public schools will be banned from purchasing any books from it in the future. In effect, the compelled ratings under state standards and state power to overrule them make booksellers the mouthpiece for State censorship.
Materials Covered Under the Law
The law applies to library materials vendors offer to schools. It also applies retroactively to library materials vendors previously sold to schools that are still in active use. It excludes material directly related to required curriculum.
The Law is Vague, Overbroad and Operates as a Prior Restraint on Speech
As enacted, the law provides labels and consequences that are overbroad, confusing, and impermissibly restrictive under constitutional standards. As stated in the brief, “the definitions of “sexually explicit material” and “sexually relevant material” are inherently vague because they are created out of whole cloth by the Legislature, are confusing, and have no basis in existing law.”
The ratings required by the law areas follows:
Vendors would be required to give a rating of “sexually relevant” to works that include any descriptions or portrayals of “sexual conduct.” If a book has been rated “sexually relevant” a student would not be able to reserve, check out, or otherwise use outside of the school library that book without prior written consent from a parent or guardian. Schools must assess biennially whether to retain library material rated “Sexually Relevant.”
As enacted, the “sexually relevant” rating covers all non-explicit references, in any context, to sexual relations, and therefore could apply broadly to health-related works, religious texts, historical works, encyclopedias, dictionaries, and many other works.
Bookstore owners and other vendors would be required to give a rating of “sexually explicit” to material describing or portraying “sexual conduct” that is determined to be “patently offensive.” (Texas state law defines “patently offensive” as materials that are an affront to “current community standards of decency.”). Vendors would be prohibited from selling books that they have rated “Sexually Explicit” to schools. Vendors would have to recall previously sold copies of “Sexually Explicit” material still in active use. Schools would have to adopt standards that prohibit the possession, acquisition, and purchase of materials rated “Sexually Explicit.”
As enacted, the “sexually explicit” rating requires booksellers to assess “contemporary community standards of decency” and engage in a highly subjective “contextual analysis” balancing test. It does not allow for adjustments for differences in ages or differing community standards—whether from state-to-state, or between any of the more than 1,200 incorporated municipalities across the state of Texas—and does not provide for consideration of the work as a whole.
See Also: Motion For a Preliminary Injunction
See Also: Read the Complete Complaint
About Gary Price
Gary Price (email@example.com) is a librarian, writer, consultant, and frequent conference speaker based in the Washington D.C. metro area. He earned his MLIS degree from Wayne State University in Detroit. Price has won several awards including the SLA Innovations in Technology Award and Alumnus of the Year from the Wayne St. University Library and Information Science Program. From 2006-2009 he was Director of Online Information Services at Ask.com.