Ahead of Oral Arguments: Briefs Filed in Texas’ ‘Book Rating’ Law

In News by Porter Anderson

The widely criticized ‘HB 900′ signed by Texas’ governor is challenged by briefs aimed at keeping its implementation blocked.

Inside the rotunda of the Texas state capitol building. Image – Getty iStockphoto: Gnagel

By Porter Anderson, Editor-in-Chief | @Porter_Anderson

See also: Our ongoing coverage of book bannings and other efforts at censorship

Brief: The Act ‘Will Cause Enormous Damage’
Building on a growing energy of opposition, Barnes & Noble and Penguin Random House have echoed a host of other companies and organizations in opposing the US state of Texas’ so-called “Reader Act” (HB 900). The retailer and publisher have filed an amicus brief in support of Book People v. Wong, the lawsuit that challenges the law’s constitutionality.

Those signing to signal their support include the Association of University Presses; the Educational Book and Media Association (EMBA); Freedom to Learn Advocates; Half Price Books, Records, Magazines; the Independent Book Publishers Association; and  Sourcebooks.

Publishing Perspectives readers may recall that this is a “book-ratings” law, which as described by Alexandra Alter and Elizabeth A. Harris at The New York Times on July 25, “would force booksellers to evaluate and rate each title they sell to schools, as well as books they sold in the past. If they fail to comply, stores would be barred from doing business with schools.” What’s more, bookstores—having rated books as sexually explicitsexually relevant, or no rating—would also have to expose those ratings for government review. “If the state disagrees with the rating,” write Alter and Harris, “it can overrule the bookseller and impose its own rating.”

While, as we reported at the end of August, a federal district court in Austin blocked the state from enforcing the law, Texas state attorneys filed an effort at the end of October to dismiss the Austin court’s injunction, and the case now lies in the 5th Circuit court of appeals. Oral arguments are scheduled for November 29.

Because our readership is primarily in the international book publishing arena, the particulars of the American surge in book-banning and other censorship efforts from the far right are somewhat difficult to follow, though there are such efforts seen in other parts of the world. This case in Texas has come to have some symbolism for the broader censorious dynamic in the US market, particularly because it stands in Texas, a heavily conservative state with a govern who supports the law.

As Andrew Albanese is faithfully reporting at Publishers Weekly on this story–one of so many involving efforts at suppression of literature in the United States–the PRH and Barnes & Noble brief  is one of six filed in objection to any implementation of this law on Friday (November 17), which was the deadline for filing briefs in support of the plaintiffs.

The Reader Act will cause enormous  damage not only to Barnes & Noble, and those who join us in this brief, but most especially to students in Texas. We urge the 5th Circuit to affirm the district court’s eloquent and well-reasoned decisionBarnes & Noble

As the Texas Library Association writes in recapping the progress of this case, “There is a great deal of confusion and uncertainty about how this new law will be implemented,” something reflected in the amicus briefs filed on Friday.

In reference to its joint filing with PRH, Barnes & Noble’s officers write, “At Barnes & Noble, we believe it is our responsibility to offer a selection of reading  materials as diverse as the society in which we live, and that it is in our power as readers to be informed, to reach  and to teach.

“The Reader Act, in compelling booksellers to adopt arbitrary and vague standards, would do just the opposite and deprive Texas students of vital literature that students nationwide have been reading for  generations.

“We believe librarians and teachers are the appropriate professionals to determine what students in  their communities read. We are proud to join with Penguin Random House and other publishers, booksellers, and authors, to support our constitutional freedom of speech and expression. The Reader Act will cause enormous  damage not only to Barnes & Noble, and those who join us in this brief, but most especially to students in Texas. We urge the 5th Circuit to affirm the district court’s eloquent and well-reasoned decision.”

Writing for Penguin Random House, Dan Novack, the company’s associate general counsel, says, “The Reader Act forces publishers to stigmatize their own books—and authors—by labeling them unfit for students. It usurps the role of  librarians, who apply their professional training in determining which books are right for their communities.

“Our  brief will directly convey to [the] 5th Circuit the damage Reader will cause to publishers like us. We call upon the 5th Circuit to affirm Judge Albright’s well-reasoned opinion.”

Another Brief

A 76-page appellate brief filed earlier, on November 13, included in its signatories:

In a series of excerpts from this brief, several points have been communicated by the AAP to members of the news media. Among them:

“This case is about whether the government can compel private entities to, at their own expense, make highly subjective, complex determinations about the content of books in violation of their sincerely held beliefs or be barred from distributing constitutionally protected books to public schools.”

“HB 900 causes a variety of imminent constitutional and economic injuries to private booksellers, including credible threats of compelled speech and violations of Plaintiffs’ right to distribute books, that must be addressed now. Such an untenable and unconstitutional mandate will create an existential crisis for independent booksellers who sell books to Texas schools.

“Plaintiffs are faced with a plethora of Hobson’s choices. First, they must choose to issue ratings or stop doing business with Texas public schools. Second, even if they compromise their beliefs and rate books (an impossible task as outlined in § II.B.), if the state disagrees with a single rating, plaintiffs must ‘(1) adopt the state’s alternative ratings—meaning listing the state’s rating as their own (which is posted online), even when they disagree—in order to sell any books to public schools or (2) follow their sincerely held beliefs by refusing to adopt state-mandated ratings with which they disagree and be permanently banned from selling books to Texas public schools.’

“Plaintiffs will be irreparably injured either way. If [the] plaintiffs yield to the state’s demands, they will betray their conscience. If [the] 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 any books to public schools and could also incur “reputational harm” because their ratings, which will be published online, will be held against them by potential book buyers across Texas and the country.

“Besides the profound vagueness of HB 900’s text and implementation by booksellers, how HB 900 will operate is equally, if not more, opaque. On August 18, at a hearing before district judge Albright, The state failed to answer fundamental questions about HB 900’s operation. There were approximately 40 instances in which the state either did not know how the law would function or did not have an answer as to the effects of certain provisions.”

More briefs reportedly have been filed, either separately or jointly, by PEN America; the American Civil Liberties Union of Texas; University of Texas law professor Lawrence Sager; Southern Methodist University law professor Dale Carpenter; the Texas Speech Communication Association; the Foundation for Individual Rights and Expression; the Cato Institute; the National Coalition Against Censorship; the Freedom to Read Foundation; and the American Association of School Librarians.

More from Publishing Perspectives on book bannings is here, more on censorship more widely is here, and more on the freedom of expression and the freedom to publish is here.

About the Author

Porter Anderson

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Porter Anderson has been named International Trade Press Journalist of the Year in London Book Fair's International Excellence Awards. He is Editor-in-Chief of Publishing Perspectives. He formerly was Associate Editor for The FutureBook at London's The Bookseller. Anderson was for more than a decade a senior producer and anchor with CNN.com, CNN International, and CNN USA. As an arts critic (Fellow, National Critics Institute), he was with The Village Voice, the Dallas Times Herald, and the Tampa Tribune, now the Tampa Bay Times. He co-founded The Hot Sheet, a newsletter for authors, which now is owned and operated by Jane Friedman.