5th Circuit Court Hears Case Against “Incomprehensible” Book Ban

Law makes booksellers deem books “sexually explicit” with vague standards

A display of banned books at Reverie Books (Photo by Jana Birchum)

The largest independent bookstore in Texas, Austin's BookPeople, is continuing to challenge House Bill 900, the law recently enacted by state Republicans that seeks to ban books from school libraries.

The company joined Blue Willow Bookshop from Houston and several bookseller associations on Nov. 30 to argue before the 5th Circuit Court of Appeals that HB 900 violates the U.S. Constitution. Laura Lee Prather, the booksellers' attorney, told the judges that HB 900 would make booksellers comply with a maze of "incomprehensible and vague" requirements, force them to say things against their will, and forbid them to say things they haven't yet said – all in violation of the First and 14th Amendments, she argues. She also emphasized that HB 900 will keep kids from reading valuable books.

"It will be a race to the bottom," Prather said. "Classics won't reach students. Books about uncomfortable truths that young adults need to be made aware of, books about sexual abuse, about human trafficking, won't reach those bookshelves."

HB 900 was passed in the spring to ban what Republicans describe as pornography in school libraries. But instead of establishing censorship offices at the State Board of Education and the Texas Education Agency to enforce this Legislature-created problem, the law foists responsibility for identifying books with "sexually explicit material" onto booksellers. It forces them to rate every single book they have ever sold to a school that is not part of a school curriculum but that is available to students (i.e., library books) beginning no later than next April. For those with sexual content, the booksellers must include a detailed analysis.

“It will be a race to the bottom.” – Laura Lee Prather, attorney for BookPeople

Critics of HB 900 say it seems designed to stop booksellers from selling any books to schools at all. BookPeople's CEO, Charley Rejsek, has said it would require the hiring of untold numbers of people to review the books. Prather described the law as setting an impossible task, saying that its requirements would compel booksellers to become experts in the varying curricula of the 1,200 school districts in Texas.

"There is no way for [booksellers] to determine what is directly related to the curriculum and what is in active use," she said. "Even if they were able to do that and ascertain that – at tremendous economic cost to them – then they have to determine how to rate the books. And there is a maze of criteria that have to be applied."

HB 900 requires booksellers to submit analyses of books with sexual content to the Texas Education Agency for approval. If the agency disagrees with an analysis, it may rewrite it, and the bookseller must then post TEA's analysis as its own. Prather said that this part of the law amounts to "compelled speech" – that is, forcing people to say things they don't want to say – a violation of the First Amendment. She also argued that HB 900 is a "prior restraint," blocking the expression of speech that hasn't yet been uttered, another violation of the Constitution. She asked the conservative judges on the 5th Circuit not to wait for the Supreme Court to determine the legality of HB 900, but to issue an injunction to stop its implementation as soon as possible.

"In the absence of an injunction, the financial, reputational, and constitutional effects of the required ratings will be irreversible," she said. "Even if HB 900 is ultimately overturned, this bell cannot be unrung."

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