Texas Can’t Force Book Vendors To Rate Books According to Sexual Content, District Court Decides

In a moral panic over allegedly damagingly filthy content in books that schoolchildren could access, Texas passed a law in 2023 known as the Restricting Explicit and Adult-Designated Educational Resources (READER) Act. Aspects of the law that compelled certain behaviors from vendors who sold books into the school system were overturned last week in a decision in Book People v. Wong from U.S. District Court for the Western District of Texas Judge Alan D. Albright.

The law’s purpose, as the decision summarized it, was “to regulate access to school library books deemed ‘sexually explicit'” (which were to be barred entirely) “or ‘sexually relevant'” (which were to require parental consent).

Albright found elements of the law plainly unconstitutional because they required booksellers who sold to Texas schools to “categorize any books they sell or have ever sold to schools” and to “issue a recall for any ‘sexually explicit’ materials that they sold to schools.”

The Texas Education Agency (TEA) would “oversee the ratings, which includes the power to overrule a vendor’s rating,” and by law, “booksellers who do not comply with the rating system (or the overruled ratings)…[could] not sell any books at any of the schools.”

A group of plaintiffs—including a Texas bookstore, the American Booksellers Association, and the Comic Book Legal Defense Fund—sued over the law in July 2023. Last week, the court granted their motion for summary judgment against those aspects of the READER Act that directly affected them.

Under READER, the booksellers would have to decide what material should be labeled “sexually explicit” or “sexually relevant,” which included determining whether the work was “so offensive on its face as to affront current community standards of decency.”

TEA’s power to overrule the booksellers’ ratings meant that the state agency had, as Albright put it, the “power to substitute its own speech for a vendor’s…the vendors must forego their own determinations and allow the TEA to exercise its unilateral rating authority….To do business with public schools, vendors must accept that the TEA is allowed to publish its own determination as the vendor’s own. Vendors have no mechanism to appeal the TEA’s determination. They must simply accept the substituted speech, or lose their ability to sell library materials to public schools.”

Since the law allowed TEA to attribute its own ratings to the booksellers, Albright concluded that “READER is compelling speech” by requiring booksellers “to rate books and adopt the governments’ ratings as their own.” The ratings that would be on public display per the law are presented, the court concluded, as “the vendor’s speech, not the government’s,” but could be controlled by the government.

“READER imposes unconstitutional conditions on a party’s ability to contract with the government, because it requires Plaintiffs to surrender their First Amendment rights in order to do any business with public schools,” the decision concludes. “READER also compels Plaintiffs to assign ratings to books when they would prefer not to. The First Amendment protects against the government compelling a person to speak its message when he would prefer to remain silent or to include ideas within his speech that he would prefer not to include.”

Albright’s decision also found aspects of the sections of the law he overturned unconstitutionally vague. Those portions of READER require booksellers to “assign subjective, confusing, and unworkable Rating Requirements. Even the TEA could not clearly define how a book seller could determine whether a book is ‘sexually relevant,’ in ‘active use,’ ‘directly related to the curriculum,’ or which community standards apply.”

The decision lays out the vexatious potential 16 steps that booksellers had faced under READER as originally passed in order to obey the rating requirements. “Looking for what would often be considered ‘obscene’ is not instructive—because READER’s test is not like the normal ‘obscenity’ test standards” since the law’s failure “to account for a work’s literary, artistic, political, or scientific value encourages ad hoc judgments which can vary from bookseller to bookseller. READER therefore qualifies as void for vagueness.”

Those aspects of the law had earlier been temporarily enjoined in an August 2023 decision and now have been quashed permanently.

This doesn’t mean Texas is not still dedicated by law to imposing certain purity tests on the material available in its schools, and it will continue to do so. Albright’s decision spells out that “the government has the power to do the contextual ratings for the books itself. The government has the power to restrict what books its school purchase, within the confines of the Constitution, and there is a meaningful interest in curating educational content for children. But those powers should be exercised by the state directly—not by compelling third parties to perform it or risk losing any opportunity to engage in commerce with school districts.” By the letter of the law before this decision, if a publisher was selling directly to Texas schools and failed to rate according to the state’s desires, per the now-enjoined Sec. 35.003(d), schools would be forbidden to buy any book from them.

For now, booksellers are no longer dragooned into being part of a rating regime, but the state still has the power to set its own restrictive standards in ways that will likely reflect the judgments, tastes, and opinions of only a portion of the public whom school libraries are supposed to serve. Jeff Trexler, the interim director of the Comic Book Legal Defense Fund, notes that the sort of branding associated with a state barring or pulling books from libraries can stigmatize a book such that many other parties “might have a tendency to not want to buy it, or bookstores to carry it, and that stigma can have a devastating effect on the graphic novel market.” (Trexler’s group has a special interest in the current wave of states targeting books since comics’ visual nature, and even the fact that comics in book form are often called “graphic novels,” lead many to assume that the way they deal with any issue in any way intersecting human sexuality or other political hot-button topics is unacceptably “graphic” in a sexual sense.)

The state’s side has already filed an appeal in Book People v. Wong.

Another case involving book curation decisions in Texas public libraries, Little v. Llano County, is currently seeking consideration from the U.S. Supreme Court, which has not yet decided whether to take it on. The issues and background are explained in Publishers Weekly this week, which sums up:

At stake in Little v. Llano County are fundamental First Amendment protections that apply in public libraries, including the right to receive information, and whether or not library collections are a form of “government speech,” as a plurality in the Fifth Circuit contended. The case would determine how much control public officials exert over library collection decisions, from book removals to approved selections, and would set precedent for not only public libraries but public school classrooms, public K–12 libraries, and higher education.

The last time the Supreme Court considered the question of conflicts between school library decisions and First Amendment rights was Island Trees School District v. Pico (1982). The justices split 4–4 on the First Amendment question and established no clear precedent, though in an opinion from Justice William Brennan joined by two other judges, Brennan posited that “whether petitioners’ removal of books from the libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners’ actions. Local school boards may not remove books from school libraries simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.'”

To highlight the culture-war passions underlying Book People v. Wong, Texas state Rep. Jared Patterson (R–Frisco) said in response to an earlier iteration of the case that any court deciding to restrict READER’s vendor rating requirements was siding “with book vendors who push pornography on unsuspecting children in our public schools.”