Texas Passes a Censorship Law That Forces Booksellers to Enforce It Against Their Will

In this era of school library book bans, Texas has passed a new law that has booksellers up in arms. Pro-book people in general are not fans of censorship and bans, but this law goes a step further. It requires booksellers to participate in the process that bans books. To booksellers for whom freedom of speech is one of the most fundamental of principles, being forced to participate in the censorship of ideas is morally repugnant.

The law, which went into effect September 1 last, is euphemistically titled Restricting Explicit and Adult-Designated Educational Resources (READER) Act. That's a neat acronym for an act that's actually meant to prevent reading. It contains the standard language banning “sexually explicit material” and “patently offensive material,” the usual vague standards that can be interpreted to mean whatever you want. Never mind the fact that all of these children's parents engaged in this sort of “patently offensive” behavior. It's a good thing for these kids that they did.

What sets this legislation apart from most book bans comes in the next part. This section is headed Ratings Required. By next April 1, it requires “each library material vendor shall develop and submit to the agency a list of library material rated as sexually explicit material or sexually relevant material sold by the vendor to a school district or open-enrollment charter school before that date and still in active use by the district or school.” The booksellers not only must rate all new books they may sell, but books they have sold to schools in the past still in “active use.” The state then publishes their lists on the Texas Education Agency website. It further requires an updated list each September 1.

How is the vendor (aka bookseller) supposed to determine what constitutes “sexually explicit” material? Texas has provided you with some help here. “For purposes of determining whether a library material is sexually explicit as required by Section 35.002, a library material vendor must perform a contextual analysis of the material to determine whether the material describes, depicts, or portrays sexual conduct in a way that is patently offensive.”

There's more. The state provides “three principal factors” to consider:

“(1) the explicitness or graphic nature of a description or depiction of sexual conduct contained in the material;

“(2) whether the material consists predominantly of or contains multiple repetitions of depictions of sexual or excretory organs or activities; and

“(3) whether a reasonable person would find that the material intentionally panders to, titillates, or shocks the reader.”

The law goes on to provide more detail on weighing the three factors. A state agency gets to review the bookseller's ratings, and if they don't like it, can compel the seller to change their ratings.

Of course, this puts a heavy burden on the bookseller. They will need to read every book a school library wishes to buy or previously bought, and then apply the law's complex tests against them. They may choose to play it safe and simply not sell to school libraries any more to reduce their exposure. Is a human biology textbook offensive? How about an illustrated one? What about Catcher in the Rye or Candide? Or, how about a transcript of the Clinton impeachment trial or the Billy Bush tape? The Bible? That's kind of explicit. Maybe we should go back to traditional sex education – from the street, from ignorant peers, from real pornography, or playing doctor.

A group of booksellers and book selling organizations “banded” together to fight the new law. They filed a motion in federal court in Austin to enjoin enforcement, both a preliminary and permanent injunction against enforcement of the law. The parties bringing the suit are booksellers Book People of Austin and Blue Willow Bookshop of Houston, along with the American Booksellers Association, Association of American Publishers, Authors Guild, and the Comic Book Legal Defense Fund.

They have asserted six claims against the state, all of which involve the freedom of speech protections of the First Amendment. They object that they are being compelled to speak against their will by forcing them to declare (publicly) books are obscene even if that is not their opinion. They object to the vagueness of the standards, there being no clear-cut way of determining what is “sexually explicit” or “sexually relevant.” They object that it amounts to unconstitutional prior restraint, silencing people before they speak, rather than prosecuting them for a violation only after one has actually occurred. They argue that it violates the constitutional presumption against limitation of free speech based on its content. They assert that it is overbroad, that is, is more restrictive than necessary for achieving its purpose. They also object that it is an unconstitutional delegation of government authority to private individuals.

Of course, we can expect booksellers, librarians, and others in the book field to be at the forefront of battles against censorship. They are as much supporters of knowledge as politicians are of ignorance. However, this one is upsetting on an even higher level for the reasons stated in their first objection. They are forced to say what they don't believe, and forced to participate in the enforcement of rules odious to one of their most cherished moral beliefs, the right to free speech. This is how anti-slavery Northerners must have felt in the 1850s when Fugitive Slave laws were enacted. They were forced to enforce southern slave laws. They were forced to participate in the capture and return of escaped slaves, now free, to bondage and abuse, once again and for the rest of their lives relegated to being property, not humans. Forcibly turning booksellers into censors and book banners is deeply offensive and immoral, though sadly, not too offensive for the majority of Texas legislators or its Governor.

There is a recent update that is positive news for those who believe in free speech. The Judge in the Federal District Court hearing the case has said he will issue injunctions, preliminary and permanent, against enforcing this attack on First Amendment rights. Scheduled to go in effect on September 1, enforcement of this law is now on hold. Texas has, of course, announced that it will appeal. In days gone by, it was easy to predict the outcome of the appeal. With today's courts it is harder to know. Will they defend your right to free speech or will they cast another freedom aside? But, at least for now, booksellers don't have to be censors, they don't have to publicly claim a book is obscene if they don't believe it, and school library book selection is back in the hands of school librarians who care about children, not a bunch of craven, power-hungry politicians who care about no one but themselves.