In a brief August 30 order, judge Alan D. Albright has set a status conference for today in a lawsuit filed by booksellers and publishers seeking to block a controversial new Texas book rating law from taking effect. In addition, the judge allowed a new amicus brief from the Educational Book Media Association, further detailing the immense harm to book vendors and publishers should the law be allowed to take effect on September 1 as scheduled.
The moves come after Albright held a second hearing on August 28—following an initial hearing on August 18—in which lawyers for a group of plaintiff bookseller and publishing industry associations argued for a preliminary injunction blocking the law, known as HB 900, from taking effect, while attorneys for the state argued the suit should be dismissed. Understanding the urgency of the motions, the judge has said that he intends to rule on the motions before the law’s effective date—but the status conference suggests that may not happen.
While it is unclear what Albright will do at today’s status conference, the court has wide discretion to act, and could issue a partial ruling or even a temporary restraining order delaying implementation for some or all of the law to buy more time to reach a decision on the motions. The state would likely have little ground to object to a TRO, given that it has argued that the law’s requirements won’t kick in until April 1, when vendors are due to submit their first round of book ratings.
Meanwhile, the short seven-page brief from EBMA reiterates the market harm vendors and publishers would immediately face if the law is allowed to take effect. "The financial burden on booksellers to comply is substantial and for some it will be impossible," the brief states, estimating that "reviewing a modest backlist of 500 titles would cost a minimum of $93,750 dollars," while for larger publishers with backlists in the thousands, the burden would easily be in the millions of dollars. "Few small publishers and booksellers have the resources to comply. They will be unable to deploy (or hire) staff to review every book they offer presently—or all the books they sold to schools in the past. As a result, the law effectively bars them from selling any books to schools in Texas."
Furthermore, as the plaintiffs have argued, the impact of the law will not be limited to Texas. "While the READER Act only purports to govern K-12 sales in Texas, its economic effects will be felt globally," the brief explains, using the nickname assigned to HB 900 by its supporters. "Requiring publishers to self-attribute 'ratings' to their publications will communicate to potential customers worldwide that the publishers consider their books to be harmful to minors. These ratings will discourage sales of books to the general public and encourage aspiring censors to ban them outright. Publishers have never been subject to a ratings system such as this, and in the absence of an injunction, the ratings will forever be promulgated–and its financial effects irreversible–even if the READER Act is ultimately overturned."
Signed by Texas governor Greg Abbott on June 12, HB 900 requires book vendors to review books and to rate books 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, while books rated exually relevant (literally any representation of sexual conduct) would require written parental permission to access.
The plaintiffs in the case 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.
As articulated in their July 25 complaint, the plaintiffs have argued that the law comprises an unconstitutional restraint on the freedom to read and that it imposes an untenable burden on vendors and publishers. Texas attorneys counter that the plaintiffs lack standing to challenge the law, insisting that the state has the power to regulate those who wish to do business with Texas public schools—essentially asserting that rating books is simply the cost of doing business.
