Barnes & Noble, the Freedom to Read Foundation, the Association of University Presses, the American Association of School Librarians, and Freedom to Learn Advocates have filed an amici curiae brief in support of a motion for a preliminary injunction against Texas's HB 900 "sexual rating" law, also known as the READER Act, which is scheduled to go into effect September 1. A group consisting of BookPeople, Austin, Tex.; the Blue Willow Bookshop, Houston, Tex.; the American Booksellers Association; the Association of American Publishers; the Authors Guild; and the Comic Book Legal Defense Fund filed suit last month, asking for preliminary and permanent injunctions against the law, which they call "the Book Ban."
Under the law, all companies selling to school libraries, librarians, and teachers in Texas have to assign ratings to books concerning their sexual content. (Titles for required curricula are exempted from the law.) A book deemed "sexually explicit" will be banned, and a book deemed "sexually relevant" will have restricted access. The "sexually relevant" rating covers, plaintiffs said, 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."
The law also has a retroactive feature: by next April, all booksellers and other book vendors must submit to the Texas Education Agency a list of every book they've ever sold to a teacher, librarian, or school that qualifies for a sexual rating and is in active use. The stores also are required to issue recalls for any sexually explicit books. If the Agency finds that a bookstore has been incorrectly rating books, it can be banned from doing business with charter schools or school districts. The Agency can also override booksellers' ratings.
The "friends of the court" brief concentrates on two aspects of the law's unconstitutionality. "First," the brief says, "the Book Ban is a content-based regulation of speech and cannot survive strict scrutiny. Any broad speech restriction aiming at protecting children that does not assess a literary work 'as a whole' and that is not circumscribed to works without redeeming social or literary, scientific or artistic value for minors is unconstitutional. Second, the burdensome and coercive requirements on publishers, booksellers and distributors to rate and label literary works as 'sexually relevant' or 'sexually explicit' constitute unconstitutional compelled speech."
See the full brief here and the original complaint here.
AUPresses executive director Peter Berkery commented: "We are dismayed by the layers of unconstitutionality in this book-banning law as well as the draconian nature of its implementation. We have received reports from our members that distributors are overwhelmed by the law's requirements and are asking for publishers' rating assistance so they can continue to serve school libraries in Texas.
"The coercive nature of this ban is simply breathtaking. Failure to comply has significant financial and reputational consequences."