Judge Sets Second Hearing on Motion to Block Texas Book Rating Law

From Publishers Weekly:

On August 18, Federal Judge Alan D. Albright heard the first round of oral arguments in Austin, Tex., on a motion to block HB 900, Texas’s controversial new book rating law. But with Texas attorneys filing a motion to dismiss the case just days earlier, on August 16, Albright said he would need more time before ruling on either motion. The judge has set a second hearing for August 28, adding that he would rule before the law is set to take effect on September 1.

The plaintiffs in the case fighting HB 900 include two Texas bookstores—Austin’s BookPeople and Houston’s Blue Willow Bookshop—together with the American Booksellers Association, the Association of American Publishers, the Authors Guild, and the Comic Book Legal Defense Fund. Dubbed the READER Act by supporters (an acronym for “Restricting Explicit and Adult-Designated Educational Resource”), the bill was signed by Texas governor Greg Abbott on June 12. Among its provisions, the law requires book vendors to review books—including both new books and books it has previously sold—and to rate them for sexual content under a vaguely articulated standard. Books rated “sexually explicit” (if the book includes material deemed “patently offensive” by unspecified community standards) would be banned from Texas schools. Books rated “sexually relevant,” (if the books portrays any kind of sexual conduct) would be available only with written parental consent.

As articulated in their July 25 complaint, the plaintiffs argued that the law is an unconstitutional restraint on the freedom to read and that the law imposes an untenable burden on the book vendors tasked with rating millions of books. As evidence of this, the plaintiffs said that a survey of six school districts in Texas revealed more than six million books and items in circulation that would require rating. Texas has more than 1,250 independent school districts; Spring Branch Independent School District in Houston determined that the process for the district to review a single book required 220 staff hours and cost a total of $30,000.

Texas attorneys opened the August 18 arguments by reiterating their argument that the plaintiffs lack standing to challenge the law, asserting that there was no “economic injury” to the plaintiffs, who “feared too many things.” The harm was purely “speculative,” said the attorneys. Furthermore, the state argued that any prospective injury should be attributable to the individual school districts deciding which books to purchase, not the state. And finally, the state argued that the law does not compel or restrict speech as the plaintiffs argue. “If this bill didn’t exist,” the state argued, “you cannot sue the school district to force them to buy books from the vendor.”

In his questions, Albright pointed out that the law as currently written does appear vague and unclear. He focused on the plaintiffs’ inability to “get relief” from the school districts should books be rated incorrectly. In addition, he noted that the law must address the future implications of a law, in this case, the potential for financial injury.

Albright also offered several implied criticisms of the law in the course of seeking clarification, asking whether or not John Steinbeck’s Of Mice and Men would be deemed obscene because it contains a rape, and subsequently E. Annie Proulx’s Brokeback Mountain and the Bible, both of which have explicit sexual references. He also asked after the fate of books depicting paintings by Caravaggio (the judge’s “favorite painter,” he said) and Michelangelo. Albright acknowledged that there were certainly works that could easily be deemed “sexually relevant,” but the part of the law that allowed books to be objected to if they were “patently offensive” and violated community standards, he implied, was problematic.

“Community standards vary wildly across Texas,” Albright said, echoing a point often made by opponents of the law. “What would be deemed acceptable in Austin might likely be objected to somewhere else.”

In response, the state countered that there were “clear guidelines” as to what was considered sexual content. But Albright pointed out that the law’s broadly articulated standard is essentially cut-and-pasted from the state’s obscenity law, noting, for example, that anything depicting a female breast below the top of the areolae was considered sexual: “You just excluded Caravaggio and Michelangelo,” the judge told attorneys.

Link to the rest at Publishers Weekly

PG cautions that a judge’s comments and questions during a hearing do not always reflect how she/he will rule. However, the OP does lead one to conclude the court is skeptical of the state’s defense of the law.

3 thoughts on “Judge Sets Second Hearing on Motion to Block Texas Book Rating Law”

  1. Here’s the fundamental problem with all attempts to legally restrict the subject matter of creative efforts. Cast your mind back to the days of Project Gemini for a moment:

    It is possible to read the Court’s opinion in Roth v. United States and Alberts v. California, in a variety of ways. In saying this, I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

    Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (citation and footnotes omitted). Fifty-nine years later, the legal standard is still no more specific than “I know it when I see it.” Botticelli would be appalled (made you look!). Which is exactly what Judge Albright (who is far more famous for civil procedure issues in patent cases) was implying.

  2. “…process for the district to review a single book required 220 staff hours and cost a total of $30,000.”

    Where do I get signed up for that job? $30K and 220 hours to process a SINGLE book?

    Estimating ten actual hours of reading (conservatively, a lot of the truly nasty ones are simply picture books), and around 15-30 minutes of filling out the template for the “review findings,” that would give me an income of around $270K to $300K a year, and at least 1,900 hours to goof off.

    (Yes, I would have to outrageously lie on my billings. But if the customer is THAT stupid…)

    • Yeah, that bit stuck out at me too. I suspect that the school district in question deliberately quoted the worst-case scenario where there’s a lot of dispute over the book in question as being the norm.

      I’m not convinced that this law, especially as written, is a good idea, but way too much of the opposition to this law boils down to “books are qualitatively different than other forms of media” and “book publishers and librarians are Not To Be Questioned.”

Comments are closed.