On August 18, Federal Judge Alan D. Albright heard the first round of oral arguments in Austin, Tex., on a motion to block HB 900, Texas’s controversial new book rating law. But with Texas attorneys filing a motion to dismiss the case just days earlier, on August 16, Albright said he would need more time before ruling on either motion. The judge has set a second hearing for August 28, adding that he intended to rule before the law is set to take effect on September 1.
The plaintiffs in the case fighting HB 900 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 by supporters (an acronym for “Restricting Explicit and Adult-Designated Educational Resource”), the bill 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 for sexual content under a vaguely articulated standard. Books rated “sexually explicit” (if the book includes material deemed “patently offensive” by unspecified community standards) would be banned from Texas schools. Books rated “sexually relevant,” (if the books portrays any kind of sexual conduct) would be available only with written parental consent.
As articulated in their July 25 complaint, the plaintiffs argued that the law is an unconstitutional restraint on the freedom to read and that the law imposes an untenable burden on the book vendors tasked with rating millions of books. As evidence of this, the plaintiffs said that a survey of six school districts in Texas revealed more than six million books and items in circulation that would require rating. Texas has more than 1,250 independent school districts; Spring Branch Independent School District in Houston determined that the process for the district to review a single book required 220 staff hours and cost a total of $30,000.
Texas attorneys opened the August 18 arguments by reiterating their argument that the plaintiffs lack standing to challenge the law, asserting that there was no “economic injury” to the plaintiffs, who “feared too many things." The harm was purely “speculative," said the attorneys. Furthermore, the state argued that any prospective injury would be attributable to the individual school districts deciding which books to purchase, not the state. And finally, the state argued that the law does not compel or restrict speech as the plaintiffs argue. “If this bill didn’t exist," state attorneys argued, "you cannot sue the school district to force them to buy books from the vendor." Furthermore, they argued that there is no impact on the constitutional rights of the vendors and publishers rating the books; that, in essence, providing ratings is a commercial transaction, and is the cost of doing business with Texas schools.
With the standing question looming large, Albright appeared skeptical of the state's claims that the harm alleged by the plaintiffs was too "speculative" and pointed out that the law as currently written is vague and unclear, focusing on the state's claim that there is no way for the plaintiffs to get relief from the state or from individual school districts for their alleged injury.
Albright also offered several other implied criticisms of the law in the course of seeking clarification. He questioned whether or not John Steinbeck’s Of Mice and Men would be deemed obscene because it contains a rape, or how E. Annie Proulx’s Brokeback Mountain and the Bible would be rated, both of which have explicit sexual references. He also asked after the fate of books depicting paintings by Caravaggio (the judge’s “favorite painter,” he said) and Michelangelo. Albright also acknowledged that having publishers and vendors decide what was "sexually explicit" according to "community standards" was problematic.
"Texas has a whole a lot of counties, right? I think 252. Community standards in Austin, Texas are very different than the community standards in Pecan Gap," Albright said, echoing a point often made by opponents of the law. "So what community standards are these vendors supposed to apply?"
In response, the state countered that since the first ratings were not due to be submitted until April of next year, the question of harm was not ripe, but argued there were “clear guidelines” in the statute as to what is considered sexual content. But Albright pushed back, pointing out that the law's broadly articulated standard is essentially cut-and-pasted from the state's obscenity law, noting, for example, that anything depicting a female breast below the top of the areolae is considered sexual: “You just excluded Caravaggio and Michelangelo,” the judge told attorneys.
At one point, state attorneys suggested plaintiffs could simply decide to submit “no rating" for their books, which would in turn compel the Texas Education Agency (TEA) to review and rate them. Some $2.6 million was allocated as part of HB 900 to pay for the implementation of a system to review and rate books, plaintiff attorneys noted at one point in the hearing. While that appeared to be affirmed by Albright as a possible course of action for vendors, it would come with a severe penalty, attorneys for the plaintiffs explained, noting that under the law vendors who do not submit ratings, which are ultimately subject to review by the TEA, could be blocked from selling books to Texas schools.
Albright then seized on a key point: If the "backstop" for the law is the TEA, which can ultimately change any ratings submitted by vendors, then why does the initial burden fall on publishers and booksellers? he asked.
"If X book comes in and is rated as sexually explicit, I'm not sure who's motivated to ask the TEA to re-rate it," the judge asked. "I mean, how does it work that they would come and change the rating? Why would the TEA take Lonesome Dove that's been rated with no rating and change it to sexually explicit, or vice versa? What would cause that to happen?"
Texas attorneys could not answer. "You know, your honor, we haven't, I haven't thought that through yet," the state replied. "I think this is still being worked out because this is a new bill."
The hearing drew several interested observers, including Wendy Woodland, director of advocacy and communication for the Texas Library Association; several residents of Llano, Tex., who last year filed one of the first lawsuits fighting efforts to purge books from Texas libraries; Darryl Tocker, executive director of the Tocker Foundation, which offers grants that fund the development of libraries in rural Texas; and authors including novelist and historian Stephen Harrigan and children’s book writer Chris Barton.
Speaking to PW, Barton summarized what many in the room felt: “Between the state's attempts to articulate a defense of the book ban and the plaintiffs' attorneys’ many well reasoned and clearly conveyed arguments against it, both sides managed to make the law seem worse to me than it already did.”
This article has been updated for clarity.
