Industry & Advocacy News

Texas Court Sides with Authors Guild and Strikes Down Controversial “Reader Act,” Protecting Free Speech Rights of Booksellers

Book Banning Free Speech

September 29, 2023

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On September 18, 2023, the District Court for the Western District of Texas issued a written decision (PDF) confirming and clarifying its oral decision blocking the enforcement of HB 900, also known as “The Reader Act.” This law would have required any vendor wishing to sell books to the Texas school system to rate them as “sexually explicit” or “sexually relevant” on a publicly available website.

As the Authors Guild argued in a lawsuit challenging the case, failing to rate the books would bar any vendor from selling to a Texas school district. Even if the vendor did rate the books, the Texas Education Authority would have the power to disagree with the rating and compel the vendor to change the rating on its website. As the court said, this would make it so “vendors must decide between either accepting the state administrative agency substituted speech as their own or being effectively blacklisted.”

The court found that forcing vendors to issue these ratings would be unconstitutional, calling it “compelled speech.” The court also recognized that the ratings system could cause another type of harm to booksellers: “Indeed, there is also a risk of reputational harm that ratings put on the internet for all to see will be held against vendors by potential buyers in and outside the state.” Books rated as “sexual” in any way (let alone “sexually explicit”) would be much more likely to be challenged (and potentially banned) in other jurisdictions.

The court’s decision confirmed that the law violated the Free Speech Clause of the First Amendment and highlighted the following factors:

• The unconstitutional vagueness of the law, which makes it almost impossible for vendors to comply. The government itself was uncertain about the ramifications of the law: “Generally the government was confused and unaware of how the law would actually function in practice, even though the hearing was mere days before it would go into effect.”
• The question of whose “community standards” would be applied, especially in a state as large and varied as Texas: “The lack of any blueprint for the Plaintiffs to follow creates a blunt reality that different book distributors and sellers will arrive at different assessments with respect to hundreds if not thousands of books.”
• Booksellers would struggle to provide a single rating for a book “when such a wide range of grades and ages of potential readers [or] potential consumers for the materials exists. The general public school system includes students from kindergarten through 12^th grade. The Windham School District includes adults who may be participating in the public school system. It is common sense that what may be considered sexually explicit or relevant to an adult would substantially vary compared to something considered sexually relevant to a child.”

The court also acknowledged the practical burden the law placed on the booksellers, finding that the cost of compliance would be “sky high,” and that “’Reader Act’ requirements for vendors are so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.” The court referred to one situation (not involving this law) where a district spent more than 220 hours, $30,000, and 16 employees to try to comply with a single book removal request:

“The Court notes the extraordinary onerous burden of requiring third parties to provide a single rating for each book regardless of the age of the potential student in a particular library is simply an additional basis for this Court to determine the statute cannot withstand even the most gossamer of scrutinies.”

The court made sure to tailor its decision to the fact that the law compelled booksellers to rate the books, rather than have the state rate them:

“The Court does not dispute that the state has a strong interest in what children are able to learn and access in schools. And the Court surely agrees that children should be protected from obscene content in the school setting. That said, The Reader Act misses the mark on obscenity with a web of unconstitutionally vague requirements. And the state, in abdicating its responsibility to protect children, forces private individuals and corporations into compliance with an unconstitutional law that violates the First Amendment.”

While the preliminary injunction does not end the case—especially since an appeal is all but guaranteed—it is nonetheless a very positive development. We will continue to keep our members informed.

Read the motion for preliminary injunction here (PDF).

Read the complaint here (PDF).

Access the press release here.