Last Friday, August 18, the U.S. District Court in Austin, Texas conducted the first hearing in Book People et al. v. Wong, in which the CBLDF joined bookstores and other free speech groups to challenge the constitutionality of the state’s new law requiring books to be rated for school use. Because we’re a co-plaintiff, I haven’t been saying as much here and on social media as I would otherwise. However, as the case goes forward we’ll be offering updates and commentary on the latest developments, starting today!
First, here’s a general overview of the law, the case, and the potential impact on the comics community – especially retailers, publishers, distributors, creators, and, of course, school librarians. As always with articles such as this, the following is an educational analysis, not legal advice; if you’re engaged in transactions involving Texas schools, you’ll want to speak with counsel about your specific circumstances.
What is HB900?
The statute at the center of this case is typically referred to as HB900, which was the bill’s number when considered and passed by the state’s House of Representatives. However, the text of the legislation as passed calls it the READER Act. The acronym is short for Restricting Explicit and Adult-Designated Educational Resources, and the statute’s text pretty much reflects the name on the tin – it’s not about expanding readership in schools but placing limits on which books can be read.
This statute requires
- State officials to establish new standards for school library collection development,
- Vendors to categorize books sold to schools in accordance with a new ratings system,
- Schools to remove or not purchase any book rated sexually explicit, and
- Librarians to get parental consent for students to check out or use material rated sexually relevant.
Vendors that do not follow the requirements of HB900 will be prohibited from selling to schools, and state authorities have the right to change a vendor’s rating upon review.
What’s happened so far with the lawsuit?
HB900 is scheduled to take effect on September 1, 2023 unless a court finds the statute unconstitutional or issues an injunction against it.
On July 25, 2023, a group of co-plaintiffs, including the CBLDF, filed a lawsuit in the U.S. District Court, Western District of Texas, to have the law declared unconstitutional. The case docket, including links to the complaint and exhibits, can be found here.
We also filed a motion for a preliminary injunction, which can be found here. If the court were to grant the injunction, it would prevent the law from being enforced until either the court enters its final ruling in the case or the injunction order gets reversed on appeal.
The court held its initial hearing on August 18 in the federal courthouse in Austin, TX, but nothing was decided besides scheduling. The judge indicated that he intends to issue a ruling on the preliminary injunction by the September 1 effective date.
The next hearing will take place on Monday, August 28, at 9:00 Central Time. The hearing is set to take place in Courtroom 1 on the first floor of the U.S. Courthouse, 501 W. Fifth St., Austin, TX. The court clerk has confirmed that the hearing will be open to the public, so if you live near Austin and are interested in the case, you might want to take advantage of the opportunity to see the legal arguments in person.
What does HB900 do?
At present, there is no ratings system for books purchased by schools. There are also no specific requirements for the Texas State Library and Archives Commission to follow when developing school library standards. HB900 changes this by amending the Texas Education Code in two ways:
- HB900 amends the provision regarding library standards, Section 33.021, by adding specific procedural and content-based requirements for what these official standards must contain.
- HB900 adds a new Chapter 35, Regulation of Certain Library Material, that establishes the new ratings system.
The Texas State Library and Archives Commission, with the approval of the State Board of Education, is responsible for developing statewide standards for school library collection development policies. Besides requiring review of these policies every five years, the amended version of Section 33.021 also adds several provisions that could affect schools’ purchasing practices with regard to graphic novels, manga, and other comics-related media.
In particular, HB900 requires school library collection development policies to prohibit the purchase of
- Material deemed harmful to minors,
- Material rated sexually explicit, and
- Material that is pervasively vulgar or educationally unsuitable.
While the above standards apply to Texas schools and school districts, the ratings system established by HB900 applies to “library material vendors.” The law defines a library material vendor as “any entity that sells library material to a public primary or secondary school” in Texas.
The scope of this definition is somewhat unclear. At the very least it includes distributors and retailers who engage directly in sales transactions with schools, and thus far that has been the focus of media attention. However, there’s also an argument to be made that it could extend to publishers who sell their books through distributors as well as independent creators who market their own material – it all depends on how regulators and courts interpret the reach of the term “sells.”
Whatever a vendor may be, HB900 prohibits vendors from selling library material to public primary and secondary schools without having “issued appropriate ratings for ratings regarding sexually explicit and sexually relevant material.” The difference between these ratings reflects specific types of sexual conduct and whether the materials qualify as “patently offensive,” arguably the key factor determining “sexually explicit” status.
What is the difference between the “sexually explicit” and “sexually relevant” ratings?
HB900 defines sexually explicit to refer to material that describes, depicts, or portrays sexual conduct set forth in Texas Penal Code § 43.25 that is patently offensive as defined in Texas Penal Code 43.21.
- Section 43.25 defines sexual conduct as “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.”
- Section 43.21 defines patently offensive as “so offensive on its face as to affront community standards of decency.”
The definition of sexually relevant likewise refers to Texas Penal Code § 43.25, but in this instance, the material is not patently offensive.
When making its assessments, the vendor is to consider the following three factors:
- the explicitness or graphic nature of a description or depiction of sexual conduct contained in the material;
- whether the material consists predominantly of or contains multiple repetitions of depictions of sexual or excretory organs or activities; and
- whether a reasonable person would find that the material intentionally panders to, titillates, or shocks the reader.
Do the ratings have to be printed on or inside the book?
HB900 does not appear to require printing ratings on book covers or within the book’s contents. Instead, it requires vendors to provide lists with book ratings to the Texas Education Agency, which must post these lists on its website.
- A vendor cannot sell material to Texas schools until it has rated books previously sold to and still used by a Texas school;
- Vendors have until April 1, 2024, to submit a list of books previously sold to and still used by a Texas school;
- Any previously sold material deemed sexually explicit must be recalled.
- Vendors must subsequently submit an updated list of books with ratings by September 1 of each year;
- Texas schools cannot purchase material rated sexually explicit.
- Material deemed sexually relevant cannot be accessed by students without written parental consent.
- If the Texas Education Agency disagrees with a vendor’s rating, the rating must be corrected.
- Schools are prohibited from purchasing any books from a vendor that does not correct its ratings in accordance with the Agency’s directive.
Which books will these ratings affect?
At first glance, the above criteria might not seem to apply to any comics-related material that would be marketed to schools. However, over the past few years there has been a concerted effort – especially in Texas – to expand such standards to include works with demonstrable literary, artistic, political, scientific, and educational value.
For example, here are select graphic novels from a list of over 400 books that a leading State Republican Executive Committeewoman states should be prohibited as sexually explicit, pervasively vulgar, or educationally unsuitable:
- Speak: The Graphic Novel,
- The Handmaid’s Tale Graphic Novel,
- My Friend Dahmer,
- Are You My Mother?,
- Fun Home,
- Wait, What? A Comic Book Guide to Relationships, Bodies, and Growing Up,
- Anne Frank’s Diary: The Graphic Adaptation,
- Brave New World: A Graphic Novel,
- Queer: A Graphic History,
- Gender Queer,
- Assassination Classroom,
- Juliet Takes a Breath Graphic Novel, and
This is just one person’s list and thus not binding, but it does give a sense as to the sort of books being targeted by HB900’s proponents.
Is HB900 constitutional?
Our court filings forth the core legal arguments as to why HB900 violates the U.S. Constitution. More detail will follow in separate briefs, but the following are the main points set forth in the preliminary injunction motion:
- HB900 compels speech in violation of the First Amendment because it requires Plaintiffs to express the government’s views.
- HB900 is unconstitutionally vague because its unclear and confusing terms fail to provide explicit standards and would cause disparate results.
- HB900 is an unconstitutional prior restraint because it prevents the distribution of constitutionally protected works without judicial review.
- HB900 is facially unconstitutional because it is a content-based regulation not narrowly tailored to a compelling government interest.
- HB900 is unconstitutionally overbroad because it restricts and chills a substantial amount of protected speech.
What happens next?
What happens next depends on how the court rules on the motion for a preliminary injunction, which is likely to happen before September 1st.
- If the preliminary injunction is granted, the enforcement of HB900 is prohibited pending appeal or the court’s final disposition of the case.
- If the preliminary injunction is not granted, HB900 takes effect on September 1, 2023, though that could be changed on appeal or in the court’s final disposition of the case.
Either way, look for additional updates on the CBLDF’s website and social media – and if any additional information would be helpful, please let me know!