Booksellers win injunction against ratings for school libraries

The Texas Legislature passed House Bill 900, which was to go into effect on Sept. 1, 2023. HB 900, known as the Restricting Explicit and Adult-Designated Educational Resources (READER) Act, attempts to regulate access to school library books that are deemed "sexually explicit" or "sexually relevant." The law would specifically require the following:

• The Texas State Library and Archives must create standards for "sexually explicit" and "sexually relevant" materials.
• Booksellers must categorize any books they sell or have ever sold to schools according to those standards and issue a recall for any "sexually explicit" materials that they sold to schools.
• Schools cannot purchase any "sexually explicit" materials and must remove existing "sexually explicit" materials from their libraries.
• Librarians must obtain parental consent for students to read or check out any books rated "sexually relevant."
• The Texas Education Agency will oversee the ratings, which includes the power to overrule a vendor's rating.
• Booksellers who do not comply with the rating system (or the overruled ratings) may not sell any books at all to the schools.

A group of booksellers, publishers and authors sued the Texas State Library and Archives Commission, the State Board of Education and the Texas Education Agency, alleging that the law would violate their constitutional rights under the First and 14th Amendments. They requested an injunction that would prevent the law from being enforced until the lawsuit could be decided.

The law prohibits vendors from selling library materials to any school district or open-enrollment charter school unless the booksellers issue ratings for any library material previously sold to public schools. There is also a prohibition on sales of material rated "sexually explicit" to public schools. The rating of "sexually explicit" is not one made by the state. Rather, it is an assessment that the state requires each bookseller to separately make.

After a bookseller issues ratings, TEA must post a list of the ratings submitted by vendors on its website. After submission of the lists, TEA can review the ratings and notify the vendor if any library material the vendor sells is not rated or, in the opinion of TEA, is incorrectly rated.

Additionally, after submitting ratings, vendors are required to issue a recall for all copies of material rated "sexually explicit" that were previously sold to public schools and are currently "in active use by the district or school." However, there is no mechanism for tracing every prior book sold. The booksellers introduced evidence indicating that they do not have records for every book they have ever sold to a public school, and furthermore that they would not know which books are "in active use."

The booksellers argued that it is impossible to comply with these requirements and presented evidence to show that the cost to rate each book would be between $200 and $1,000 per book. Additionally, the cost to read and rate books already sold to schools would cost between $4 million and $500 million. To put the scale of the number of books that would need to be rated in perspective, a librarian testified that six school districts alone had library collections totaling over 6 million items.

The booksellers argued that HB 900 violates their First Amendment right to free speech because it compels them to establish standards that they do not want to establish and present them to the public as though they represent their views.

As a general matter, the government is not permitted to compel a person or a corporation to speak its own preferred messages. Nor may the government compel a person to speak the message the government desires if the speaker chooses to remain silent. Nor may the government compel an individual to adopt or include additional speech with his own if the speaker would rather not include it.

The booksellers argued that HB 900 compels speech in at least two ways. First, it requires them to express an opinion of whether a book is "sexually explicit" or "sexually relevant" (or neither) based on standards adopted by the state. Second, the law requires the booksellers to revise their independent assessments of the categorization of the content to conform with the government's ratings in the event that TEA disagrees with the rating they assign. Both the initial ratings and the revised ratings would be presented as though they are assigned by the bookseller.

The booksellers also argued that the law is unconstitutionally vague. HB 900 requires each instance of a "description, depiction, or portrayal of sexual conduct" to be considered when a vendor makes a determination of what rating to assign and states that contextual determinations are necessarily highly fact-specific.

Whether or not a specific act is sexually explicit can depend on community sensibilities. The public school system includes students from kindergarten through 12th grade. The Windham School District includes adults who may be participating in the public school system. What may be considered sexually explicit or relevant to an adult could substantially vary compared to something considered sexually relevant to a child. There are a substantial number of books that might receive one rating if they are going to be in a library for high school seniors and another if they're in an elementary school library.

A district court found that requiring a single rating for all books included throughout the public school system, which includes a variety of ages and backgrounds, leads to arbitrary and discriminatory applications of the law.

After considering the arguments presented by the booksellers, the court determined that the booksellers would be irreparably harmed if the law were permitted to go into effect and granted their request to prevent the law from taking effect until the lawsuit could be decided.

It is expected that the state will appeal this ruling. Further litigation could change the outcome reached in this decision.