BookPeople Leads Lawsuit Against State on Book Ban

Plaintiffs contend HB 900 infringes on free speech

Photo by Jana Birchum

Yesterday, a group of booksellers led by Austin’s BookPeople and Houston’s Blue Willow Bookshop filed a lawsuit in federal court over HB 900, a law that bans “sexually explicit” books from school libraries and requires a rating system for “sexually relevant” books.

The defendants in the suit include the Texas State Library and Archives Commission, Texas Board of Education, and Commissioner of Education Mike Morath, who would be implementing the law. The plaintiffs, which include American Booksellers Association, Association of American Publishers, Authors Guild, Inc., and Comic Book Legal Defense Fund, argue that the law places “impossible demands” on booksellers to determine what “sexually relevant” even means, and infringes upon their First Amendment rights by forcing them to adopt the state’s standards instead of their own, essentially compelling them to “speak in ways in which they disagree, or face sanctions.”

On BookPeople’s HB 900 FAQ page, CEO Charley Rejsek writes, “Setting aside for the moment the fact that this law is clearly unconstitutional, 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 that could be requested by a school for purchase, neither do we have the training nor funding needed to do so.” Rejsek told the Statesman that the workload created by the law is “bad for small business”: Small independent bookstores simply don't have the resources to review every book a school orders, which she fears would affect the business they could do with local schools.

Furthermore, the definitions of “sexually relevant” and “sexually explicit” are so vague as to be impossible for booksellers to determine. The plaintiffs point out that the definition of “sexual conduct” in the penal code seemingly encompasses any sexual-related topic, which they fundamentally oppose, as the subjective standards restrict students’ access to knowledge. The book ban does exempt material “related to the curriculum,” but there is no statewide standard for curriculum, so “it would be unclear what is ‘related to’ it,” the plaintiffs write.

“Setting aside for the moment the fact that this law is clearly unconstitutional, 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 that could be requested by a school for purchase, neither do we have the training nor funding needed to do so.” – BookPeople CEO Charley Rejsek

The law defines “sexually explicit material” as anything “sexually relevant” presented “in a way that is patently offensive,” as defined by the penal code, which requires plaintiffs to determine whether a book is “so offensive on its face as to affront current community standards of decency.” Plaintiffs ask, which community’s standards? Is it “based on Austin, Texas, or Onalaska, Texas – or any of the more than 1,200 incorporated municipalities across Texas”? The law would also require booksellers to recall all “sexually explicit” or “relevant” books they have already sold to schools, placing additional administrative burden on them.

Furthermore, if the ratings put forth by the booksellers are unsatisfactory to the TEA, they will issue their own, which the bookseller must post publicly. If a bookseller refuses to accept the state’s rating as its own, it will be prohibited from selling any books to public schools, and face public censure by the state. That’s where the First Amendment argument comes in – the state would essentially be asking the bookseller to “revise their independent assessments to conform with the state’s views.”

Even before HB 900, some of the books removed from Texas schools due to far-right school boards and parent pressure – the most in the nation last year – have been widely respected literature that deal with race and gender. For example, Anne Frank’s The Diary of a Young Girl, Toni Morrison’s The Bluest Eye, and even the Bible were banned in Texas school districts in 2022, according to PEN America.

Ultimately, writes Rejsek, “booksellers should not be put in the position of broadly determining what best serves all Texan communities. Each community is individual and has different needs. Setting local guidelines is not the government’s job either. It is the local librarian’s and teacher’s job, in conjunction with the community they serve.”

Got something to say on the subject? Send a letter to the editor.

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KEYWORDS FOR THIS POST

BookPeople, HB 900

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