AUSTIN—Two bookstores, authors, and a coalition of national trade groups representing the country’s booksellers have filed a lawsuit against the state of Texas to block the implementation of a controversial law that would ban books and material in school libraries that contain sexually explicit material.
Filed in the Austin division of the U.S. District Court for the Western District of Texas, the plaintiff class argues that House Bill 900 establishes “an unconstitutional regime.”
The complainants include Austin-based book store BookPeople, Houston’s Blue Willow Bookshop, and trade associations and professional organizations like the American Booksellers Association, the Association of American Publishers, the Authors Guild, and the Comic Book Legal Defense Fund. Named defendants in the complaint include Martha Wong, the chair of the Texas State Library and Archives Commission; Keven Ellis, chair of the Texas State Board of Education; and Mike Morath, commissioner of the Texas Education Agency.
By extension, the plaintiffs are also essentially suing the administration of far-right Republican Gov. Greg Abbott, who signed the bill earlier this year.
During the legislative session, a super-majority of Republican lawmakers who bought into the moral panic of sexual subject matter in books for young adults and teenagers adopted the bill, the Restricting Explicit and Adult-Designated Educational Resources (READER) Act, in what Abbott calls “key legislation empowering Texas parents.”
HB 900, which is expected to enter force on September 1, would require independent bookstores, national bookseller chains, online book retailers, publishers and other book vendors to develop a rating system for “millions of books and other library materials according to sexual content if those books are sold to school libraries,” according to a press released published to the Association of American Publishers’ website.
This proposed age rating system, the associations and stores argue, would institute “vague labels dictated by the state without any process for judicial review.”
“The rating system this law would impose is not viable for any book vendor,” declares Valerie Koehler, a plaintiff and the owner of the Blue Willow Bookshop in Houston. “We have always adhered to the idea that we cannot judge what a customer chooses. Requiring booksellers to rate novels, poetry and works of nonfiction would impede our ability to disseminate constitutionally protected books, magazines, and other materials.”
Koehler’s sentiment is, of course, reflected in the lawsuit. Counsel for the plaintiffs contends that HB 900’s directives openly violate the First and Fourteenth Amendments by compelling speech, regulating speech with vague rules, and forcing content-based restrictions that are clearly unconstitutional. According to the filing, the plaintiffs are requesting a preliminary and permanent injunction blocking the state from enforcing HB 900.
The plaintiffs also request an unconstitutional ruling declared on the book ban statute as a means to inform case law and potentially influence the outcomes of similar lawsuits, like in Florida. In that case, the civil society group PEN America sued a local school district in a federal court for a book ban that reflects what HB 900 intends to impose on Texas students, parents and teachers.
Texas state Rep. Jared Patterson, R-Frisco, one of the prime sponsors for HB 900, told ABC News that he isn’t surprised by the lawsuit. Patterson said that “the far left will do anything to maintain their ability to sexualize our children.” He is confident that the law will be upheld.
Case law shows, however, that content restrictions are rarely upheld after judicial review. For example, the complaint cites the U.S. Supreme Court decision reached in 1963 pertaining to the case of Bantam Books, Inc. v. Sullivan. Ruling 8 to 1 in favor of book publishers, the high court ruled that state governments, while maintaining a right to regulate obscene material, must do so in a way that is equitable to speech that isn’t considered obscene to minors or the general public.
And, even then, obscenity is still broadly defined and is subject to the three-pronged Miller Test that scrutinizes whether a piece of content is legally obscene and is therefore not protected by the First Amendment. The Miller Test usually affirms content as protected speech as long as it doesn’t depict illegal activity, like child sexual abuse material or non-consensual intimate imagery—both of which are already illegal and aren’t protected by free expression provisions.
