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Bookstores Challenge New Texas Book Ban for Public Schools

Booked locked in chains and padlock
By Michael DeRienzo, Esq. | Last updated on

The very idea of a "book ban" in the United States sounds unimaginable in this day in age. Censorship is a thing of the past, right? Well, apparently not if you live in the state of Texas. Courtesy of a new Texas law, books containing sexually explicit references or depictions will be banned from all public school libraries in the state.

Who decides what is considered "sexually explicit"? Book vendors will have the first say, but if the state disagrees, it will override the vendor's decision. If the vendor does not agree to the rating change, it could face consequences, and might even lose the ability to sell to schools in the future.

Texas's Ban: H.B. 900

On June 13, 2023, Governor Greg Abbott signed into law Texas House Bill 900, more commonly known as the Restricting Explicit and Adult-Designated Educational Resources (READER) Act. Under the Act, which takes effect on September 1, 2023, any vendor that wants to sell books to a public school or school district must review the book for any references to, or depictions of, sexual conduct.

If the book contains such language, the vendor must rate it as either "sexually explicit" or "sexually relevant." Any book that includes depictions of sexual conduct in a "patently offensive" way and is not relevant to the curriculum is considered to be "sexually explicit." (The new law also says that it will use Texas's criminal laws to define what "patently offensive" means; per the criminal code on obscenity, this phrase means, "so offensive on its face as to affront current community standards of decency.")

Books labeled "sexually explicit" cannot be purchased by the school, and any existing books with this classification must be removed from its library. Books labeled as "sexually relevant" can be stocked in school libraries, but can only be checked out by a student with parental permission.

After a vendor completes the independent review process, it must report the titles of the books and their ratings to the Texas Education Agency. The Agency reviews the rating, and is given full power to overrule any rating and require that the vendor change it. Any vendor that does not agree to the Agency's changes are placed on a blacklist, and public school are banned from purchasing any books from booksellers on the list.

Booksellers' Plan: Book People v. Wong

Book bans have never gone over well in America, and this case is no different. In Book People, Inc. v. Wong, a group of plaintiffs (consisting of two different independent bookstores in Texas and several national non-profits) filed a complaint against various Texas education commissioners (including the namesake, Martha Wong, chair of the Texas State Library and Archives Commission). They sought a court injunction that would stop the Act from taking effect. According to the plaintiffs, the Act is a violation of the First and Fourteenth Amendments of the United States Constitution.

First, the plaintiffs argued that Act violates the First Amendment because is an unlawful compelling of state speech. This is partly because the Act requires that the plaintiffs rate books using specific terms solely based upon Texas's own definitions. In addition, the Act demands that the vendors conform to Texas's rating system, and face punishment if they refuse. But more generally, the plaintiffs claim that the Act interferes with the freedom of speech. They quote a famous 1989 Supreme Court case, which reads: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Second, the Act is vague and overbroad, and includes inadequate definitions to determine what is and is not "sexually explicit." Because it's written in such a vague way, the plaintiffs argue that it violates the "void-for-vagueness doctrine" stemming from the Due Process rights protected by the Fourteenth Amendment. Further, the language used to define the terms undoubtedly includes lawful and constitutional protected material.

For instance, consider the definition of "patently offensive" from earlier: "so offensive on its face as to affront current community standards of decency." But whose community standards? Which community? Incest and rape are often considered offensive or indecent, particularly in conservative or religious parts of Texas. But the Bible includes various instances of incest and rape (sometimes even both). Does this mean Texas — a state that is 77% Christian — is trying to ban the Bible?

The Outcome? Still Unwritten

As the lawsuit was only filed on July 25, 2023, it is still in the early stages. Book bans in America rarely succeed, but are usually hotly debated. The only safe bet on the outcome is that it will come after a long, drawn-out First Amendment fight.

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