Book People, Inc. v. Wong

Citation

Book People, Inc. v. Wong, No. 1:23-CV-00858-ADA, 2023 WL 6060045 (W.D. Tex. Sept. 18, 2023)

Latest Action

Oral argument before the Fifth Circuit Court of Appeals will be held on Nov. 29, 2023.

On Sept. 20, 2023, the defendants appealed the ruling to the Fifth Circuit Court of Appeals and filed an Emergency Motion to Stay Preliminary Injunction Pending Appeal and for a Temporary Administrative Stay. On Sept. 25, the Fifth Circuit entered an administrative stay of the injunction. Plaintiffs filed a Response in Opposition to the Motion to Stay.

On Oct. 30, 2023, the defendants-appellants filed their brief. On Nov. 13, 2023, the plaintiffs-appellees filed their brief.

On Nov. 17, 2023, six briefs for amicus curiae in support of plaintiffs-appellees were filed:

• Brief of the American Civil Liberties Union of Texas and scholars of constitutional law
• Brief of the Association of University Presses, Barnes and Noble, the Educational Book and Media Association, Freedom to Learn Advocates, Half Price Books, Independent Book Publishers Association, Penguin Random House, and Sourcebooks
• Brief of the Foundation for Individual Rights and Expression, Cato Institute, and the National Coalition Against Censorship
• Brief of Freedom to Read Foundation and American Association of School Libraries
• PEN America
• Texas Speech Communication Association

Summary

Some members of Media Coalition members – American Booksellers Association, Association of American Publishers, Authors Guild, and Comic Book Legal Defense Fund – as well as two Texas independent booksellers filed a lawsuit in the U.S. District Court for the Western District of Texas, Austin Division, challenging a new Texas law that would require independent booksellers, national chain bookstores, large online book retailers, book publishers and other vendors to review and rate thousands of books and other library materials for sexual content if those books are sold to school libraries.

The plaintiffs have asked the court for preliminary and permanent injunctions to enjoin the implementation of the law, which has been signed by the Governor of Texas and is slated to go into effect on September 1, 2023.

History

The new law, HB 900 (titled the “Reader Act”) would require vendors, including local and national bookstore owners, to determine “current community standards of decency” and subsequently assign “sexually relevant” or “sexually explicit” labels to books and other library materials based on the presence of descriptions or depictions of “sexual conduct.”

It forces booksellers to express an opinion on constitutionally protected works of literature and nonfiction based on the government’s vague, ambiguous, and stigmatizing standards, not their own standards. If the state disagrees, it can overrule the rating for any book that it believes was “incorrectly rated.”

If a bookseller fails to provide the state’s chosen rating, public schools will be banned from purchasing any books from it in the future. In effect, the compelled ratings under state standards and state power to overrule them make booksellers the mouthpiece for state censorship.

The law applies to library materials vendors offer to schools. It also applies retroactively to library materials that vendors previously sold to schools that are still in active use. It excludes material directly related to the required curriculum.

Plaintiffs in the case include five Media Coalition members: American Booksellers Association, Association of American Publishers, Authors Guild, Comic Book Legal Defense Fund, and Freedom to Read Foundation. The other plaintiffs are two Texas bookstores: Austin’s BookPeople and West Houston’s Blue Willow Bookshop.

Complaint

As enacted, the law provides labels and consequences that are overbroad, confusing, and impermissibly restrictive under constitutional standards. As stated in the brief, “the definition of ‘sexually explicit material’ and ‘sexually relevant material’ are inherently vague because they are created out of whole cloth by the legislature, are confusing, and have no basis in existing law.”

The ratings required by the law are as follows:

Vendors would be required to give a rating of “sexually relevant” to works that include any descriptions or portrayals of “sexual conduct.” If a book has been rated “sexually relevant,” a student would not be able to reserve, check out, or otherwise use outside the school library that book without prior written consent from a parent or guardian. Schools must assess biennially to retain library material rated “sexually relevant.”

As enacted, the “sexually relevant” rating covers all non-explicit-references, in any context, to sexual relations, and therefore could apply broadly to health-related works, religious texts, historical works, encyclopedias, dictionaries, and many other works.

Bookstore owners and other vendors would be required to give a rating of “sexually explicit” to material describing or portraying “sexual conduct” that is determined to be “patently offensive.” (Texas state law defines “patently offensive” as materials that are an affront to “current community standards of decency.”) Vendors would be prohibited from selling books that they have rated “sexually explicit” to schools. Vendors would also have to recall previously sold copies of “sexually explicit” material still in active use.  Schools would have to adopt standards that prohibit the possession, acquisition, and purchase of materials rated “sexually explicit.”

The law requires booksellers to assess “contemporary community standards of decency” and engage in a highly subjective “contextual analysis” balancing test. It does not allow for adjustments for differences in ages or differing community standards — whether from state to state or between any of the more than 1,200 incorporated municipalities across the state of Texas — and does not provide for consideration of the work as a whole.

As noted in the complaint, during debate about the new law, some Texas legislators warned that the overbroad language “could result in the banning of many classic works of literature, such as ‘Twelfth Night,’ ‘A Midsummer Night’s Dream,’ ‘Romeo and Juliet,’ ‘Of Mice and Men,’ ‘Maus,’ ‘Ulysses,’ ‘Jane Eyre,’ ‘The Canterbury Tales,’ ‘I Know Why the Caged Bird Sings,’ and even the Bible.” One lawmaker, a former schoolteacher, said the ban would likely prohibit school libraries from offering the quintessential Texas novel “Lonesome Dove.”

The new law threatens the viability of national chain bookstores, large online book retailers, and book publishers operating in the state of Texas, and might even put some independent bookstores out of business.

For example, the requirement to rate books being sold now, and to search past records for the entire universe of library materials ever sold to any Texas public school and also rate those books, would require massive investments of time and money, possibly exceeding the resources of some bookstores.

In addition, the mandate to recall some books sold in the past would place additional economic pressure on large and small vendors across the state. It also risks publishers forgoing the investment in important new works and authors ceasing to write new books.

U.S. District Court

On Aug. 30, 2023, the U.S. District Court Judge Alan Albright enjoined the Texas law, with the injunction taking effect immediately. Judge Albright made the announcement prior to issuing a written order and opinion because the law was set to take effect on Sept. 1, 2023.

On Sept. 18, 2023, Judge Alan D. Albright issued a 59-page Order preliminarily enjoining the law, holding that the law likely violated the First Amendment because it compels speech, is unconstitutionally vague, and is an impermissible prior restraint.

HB 900 compels speech

Judge Albright found that HB 900 impermissibly seeks to compel booksellers to create speech that they do not wish to make and with which they do not agree. The Court held that the law requires plaintiffs to review school library books and issue ratings based on criteria with which they disagree. Second, if the Texas Education Agency (TEA) determines that the Plaintiffs’ ratings are “incorrect,” the TEA can unilaterally alter the ratings and “force Plaintiffs to allow the TEA to publish the rating as if the revised rating were Plaintiffs’ own.” Judge Albright then concluded that if plaintiffs fail to provide ratings or do not update their initial ratings with the State’s ratings, they will face “substantial financial harm” by being prevented from selling books to public schools and could also incur “reputational harm” because their ratings, which will be published online, can be held against them by potential buyers across the country.

HB 900 is unconstitutionally vague

The Court found that the definitions of “sexually relevant” and “sexually explicit” were unconstitutionally vague because, among other reasons, they excluded the “critical backstop” of the third prong of the Miller test for obscenity — whether the material “taken as a whole, lacks serious literary, artistic, political or scientific value.” The law also fails to explain how to make a “contextual determination” as to what is “sexually explicit” or “sexually relevant,” which makes it a highly personal and subjective test and, therefore, unconstitutionally vague. Finally, the Court held the exception for material “directly related to the curriculum” was unconstitutionally vague because there is no statewide curriculum in Texas across its 1,025 school districts and, even within these school districts, curricula vary, which makes it “impossible for vendors to ascertain what content falls within this exception, or how to determine its scope on a statewide basis.”

HB 900 is an unconstitutional prior restraint

The Court also determined that HB 900 is an unconstitutional prior restraint because it “acts as a prohibition of distributing literature” by allowing the government to prohibit all future sales of books rated “sexually explicit” to public schools and contains an “utter lack of procedural safeguards,” such as an opportunity to appeal TEA’s determinations or have them judicially reviewed.