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A federal judge put the kibosh on a Texas law that would have forced book vendors to determine whether materials being sold to Texas schools that contain any mention of sex are either so dirty that they can’t be seen by anyone under 18, or merely so dirty they could only be seen with parental permission. US District Judge Alan Albright, a Trump appointee, issued a preliminary injunction blocking the law just days before it was supposed to go into effect, and Albright’s order is a corker, lighting into the law and the dumb arguments Texas attorneys offered in trying to defend it.
This would be the same dirty-books law that we made fun of back in April 2023, when its author, Texas state Rep. Jared Peterson (R), said that there should be no “sexually explicit” materials in any Texas schools, absolutely none. In response to a question from a smartass Democrat, Peterson said that not even the semiofficial Texas State Novel, Larry McMurtry’s 1985 epic Lonesome Dove, could be spared if it had sex stuff in it. Peterson hadn’t read the book, which may already be grounds for expulsion, but insisted,
“I don’t care if it’s ‘Lonesome Dove’ or any other novel — if it has sexually explicit material, I would view that as an incredible win for the students of the state to not have that material in the library.”
No sir! No pokes, no talk of men’s “carrots,” none of it!
The stupid bill, HB 900, aka the “Restricting Explicit and Adult-Designated Educational Resources (READER) Act,” was passed and signed into law anyway, and now booksellers have gotten it blocked, largely because it would have forced them to rate every single book they sell or ever have sold to Texas schools.
And wow, what a lot of work the law demanded of book companies if they wanted to stay in the Texas market, as Law Dork Chris Geidner explains. The law
purported to set up a system for categorizing books as “sexually explicit” or “sexually relevant,” with the former barred and the latter subject to restrictions, or unrated and available on unrestricted terms. The system, however, requires booksellers to do the initial rating by reviewing and rating every book that they sell to a school. A state agency is then free to change the rating of any book — with no apparent standards or way for the booksellers to appeal that decision — and then post the booksellers’ list (as potentially altered by the state) publicly. Failure to adhere to this system means you can’t sell books to schools in Texas.
Judge Albright wondered if the Texas Lege had any idea of the amount of busywork — which could be arbitrarily rejected by the Texas Education Agency — the law would have imposed on booksellers:
“To put the scale of the number of books that would need to be rated in perspective, a librarian in San Antonio for Northside ISD testified that six school districts alone had library collections totaling over six million items,“ Albright wrote.
For starters, the booksellers would have to determine whether books with “sexual content” are “patently offensive” as defined by Texas law: “so offensive on its face as to affront current community standards of decency.” What community? The law doesn’t say. A standard Texas community, you know. Aren’t they all about the same? The law offers no guidelines, it just waves vaguely at Texas law and tells booksellers to make a decision, as if any two companies would necessarily agree when evaluating a given book.
Thus, school districts across the state of Texas would be able to purchase a book of the exact same content from one provider but not another. Or, if they bought a book from one provider, they might be allowed to make it available to students without parental approval, but if they bought it from a different vendor, parental consent would be required.
Even after a bookseller made its initial rating, the Texas Education Agency could change the rating, and the sellers would have to accept it, too. Any books rated “sexually explicit” could no longer be sold, and the booksellers would also have to buy back from schools any copies of the banned books previously sold. If a bookseller didn’t accept the TEA’s classification of a book as “sexually explicit,” it would be barred from ever selling books to the state again, for all time.
Albright wrote,
“The effects of these few short provisions have put Plaintiffs in an impossible position. First, the costs of compliance with issuing ratings are sky high. In addition, Plaintiffs do not believe their members or employees have the time or the training to properly make these assessments, which could lead to banning classic works of literature.”
Albright also tore into Texas’s lawyers’ defense of the law, noting that, “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.”
In short, it’s a crap law that’s excessively vague and unenforceable, so while the case is being litigated, it won’t be allowed to go into effect — a finding that was even upheld Wednesday by a three-judge panel of the Fifth Circuit Court of Appeals, which seemingly has never met a rightwing law it didn’t like. Finding that the law is probably unconstitutional, the judges agreed with Albright that it can’t be enforced while the case moves forward, and now teenagers can be just as surprised as I was by how few of the main characters in Lonesome Dove live to see the last page (oh, spoiler for a 38-year-old novel).
PREVIOUSLY!
[Law Dork / Order in Book People v Wong / HB 900]
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