In their recently filed lawsuit to block HB 900, the controversial new Texas law that will require vendors to rate books sold to schools for sexual content, a coalition of booksellers and publishing industry associations insist that the law is both unconstitutional and impractical. “Booksellers do not see a clear path forward to rating the content of the thousands of titles sold to schools in the past, nor the thousands of titles that are published each year,” explained plaintiff Charley Rejsek, CEO of Austin-based vendor BookPeople, in a July 25 statement announcing the litigation. But with the law’s September 1 effective date bearing down, Follett School Solutions, the nation’s largest distributor of books to schools, does see a path forward in Texas—and that path apparently includes asking publishers to help rate their own books.
“Without having a 3rd party yet for the required ratings (Sexually Relevant and Sexually Explicit), our goal is to get as robust of a collection of purchasable content ready on September 1st and continue building as titles are rated,” reads the text of a memo from Follett officials addressed to Publishing Partners, which was shared anonymously with PW. “However, this is quite a workload. Follett is asking you to provide us with a simple spreadsheet helping us to identify titles which fall into two categories: either NO Questionable Content or Possible SR or SE Content (which we would send to a 3rd party for rating). Again, our goal is to get as many of your titles [available] on September 1st as possible.”
In the memo, Follett officials acknowledge that Texas has yet to provide detailed “guidelines” for how to rate books for sexual content. “But every title we can deem ‘OK’ to provide to them on September 1 for sale will be of benefit,” the memo states.
However, with a hearing on their federal lawsuit seeking to block the new Texas law just days away, publishers and other industry stakeholders are balking at Follett’s request to help the vendor rate their titles. Though all of the Big Five publishers declined to comment directly on the Follett memo for this story, multiple publishers confirmed its details. One publishing executive told PW on background that they understand the bind Follett faces in Texas with the new law but that complying with the request to rate their books would make them "complicit" in an act of censorship. And in a statement, one publisher, Hachette, went on record to broadly reject the idea of rating its books.
“We strongly disagree with the idea that rating our books to flag certain content, or having retailers or wholesalers do this, is appropriate or helpful. We trust our teachers, trust our librarians, trust our parents, trust our student readers who are hungry to experience the world in all the ways that books allow. And we trust the processes of professional review and community input that have been in place for decades,” Hachette officials told PW. “As publishers, we want our books to reach the broadest possible readership. That readership comprises individuals with unique tastes, reading levels, and lived experiences. There is great variability in reading ability and content interest among young readers, even among those in the same grade or the same age.”
"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," the Hachette statement concludes, "and that the choice of what book to read remains unregulated by the states."
The Authors Guild, the nation’s largest author advocacy group—and also a plaintiff in the lawsuit seeking to strike down HB 900—called Follett's request "alarming," and is asking publishers not to cooperate.
“We urge publishers not to comply with Follett's request as it will force them to self-censor and to censor their authors, and it will remove many educationally valuable books from the school market in the state of Texas, depriving students of access to them,” Authors Guild officials said in a statement. “It will also compel speech by forcing publishers to create lists of books that any community in Texas might possibly find ‘sexually relevant’ or offensive, making it appear as though the publishers are tacitly admitting that books listed as ‘Possible SR or SE Content are questionable.’ It could be difficult to sell those books to any school system after such lists are made public, despite the fact that in most cases only a very few parents might find them objectionable.”
AG officials also suggest that Follett’s request for help rating books undermines the pending litigation to strike the law down filed by booksellers, authors, and publishers.
“Even if the law is struck down, publishers will already have effectively complied by de facto rating their publications,” the statement notes. “Rather than try to prepare for the law to take effect, Follett should oppose it and refuse to comply based on [the law's] blatant unconstitutionality and its attack on the free speech of authors, publishers, and book sellers, as well as students’ right to read.”
Follett officials did not comment on the memo for this story. “Follett is aware of the Texas legislation and will comply,” Donald Reinbold, director of strategic business development and content acquisitions for Follett School Solutions, told PW in a brief email. “We remain committed to serving our customers everywhere and will continue to support them as they navigate the required changes.”
In the memo, Follett officials offered some idea of what navigating the new law might look like: The company told publishers that it is preparing a Texas-only view (determined by IP address and account address) for its Titlewave online ordering service, and that the company “will not be putting through” any titles that contain possible sexual content pending the development of "a third party rating program.” Under the law, books rated “sexually explicit” would be banned from Texas schools entirely—and as such, the Follett memo notes, “will not be made available for sale” via Titlewave in Texas.
“Your support in identifying those titles that you know DO NOT fall into those categories will allow us to push through more of your titles from the first day of compliance,” the memo explains. “We have it on good authority that [Texas] sales will come quickly in the fall to get ahead of any additional changes or requirements, so I would ask that you take advantage of this opportunity to identify as many titles as possible and return them to Follett as soon as you can.”
Follett's plan to comply with the burden imposed by HB 900 in Texas is yet another example of the mounting pressure facing the publishing industry in the wake of new state laws that strike at the freedom to read under the guise of protecting minors from allegedly obscene content.
And it is not the first time Follett has wrestled with the fallout of legislation targeting libraries and schools. In April 2022, Follett drew criticism for engaging in preliminary discussions about potential parental controls for its Destiny Library Manager software. But in a statement at the time, Britten Follett, CEO of content at Follett School Solutions, insisted there was never any plan to offer such tools, only "internal conversations" with customers about how the company might help them navigate "an extremely difficult time" in education, adding that librarians in a number of states were growing "scared for their careers" and didn't want to break the law. “At Follett, our mission is to support librarians and get books into the hands of students," Follett said at the time. "We support the American Library Association’s Library Bill of Rights and advancing—not limiting—the role of the librarian and the school library.”
Perhaps the most high profile book banning legislation passed yet, HB 900 has certainly ramped up the pressure on educators and librarians in Texas—and it has put booksellers and publishers in the line of fire, too.
Signed by Texas governor Greg Abbott on June 12, the law requires book vendors doing business with Texas schools to review books—including both new books and books it has previously sold—and to rate them, under a vaguely articulated standard, to be 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” are now banned in Texas schools. Students would be able to access books rated as “sexually relevant,” but only with written parental consent. Furthermore, law gives the state the unrestricted power to “review and overrule the ratings for any book,” effectively imposing a state standard. And vendors that do not rate books or do not comply with the state's rating would be barred from doing business with Texas schools.
While officials at the American Library Association declined to comment directly on Follett's request for publishers to assist in rating their own books for compliance in Texas, ALA officials pointed PW to a recent post on the ALA's Intellectual Freedom Blog explaining why book rating systems, such as the one enacted in Texas, are "a tool for censorship" and run afoul of the Library Bill of Rights.
"The use of such a prejudicial ratings system in the library assumes that an individual or group should have the authority to determine what is appropriate for every family in the community and may give the impression that the library endorses or favors specific viewpoints, value systems, or religious beliefs," the post explains. "They facilitate indoctrination, not education."
Meanwhile, the legal challenge to HB 900 looms large.
Filed by two indie booksellers (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, the complaint claims HB 900 constitutes "a prior restraint that violates the First and Fourteenth Amendments to the U.S. Constitution.” If allowed to go into effect, it would trigger "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 suit argues.
Federal judge Alan D. Albright has scheduled oral argument on the plaintiffs' motion for a preliminary injunction to block the law from taking effect for August 18, leaving just days to decide the measure before the law's September 1 effective date.
Correction: an earlier version of this story referred to Charley Rejsek as the owner of Book People. Rejsek is CEO.
