Texas law turns booksellers into censors

The First Amendment prohibits the government from censoring protected speech. But can the government outsource censorship to private booksellers? 

Nope. The First Amendment prohibits that, too.

This year Texas passed the Restricting Explicit and Adult-Designated Educational Resources Act. The READER Act requires booksellers who sell books to school libraries to rate every book they sell as “sexually relevant,” “sexually explicit,” or “no rating.” It further bans all sales of “sexually explicit” materials to public schools.

So how do booksellers know how to rate each book in their libraries? Easy. Booksellers just have to follow these quick steps:

• Materials are rated “sexually relevant” if they contain any mention or depiction of sexual conduct.
• But sexually relevant material is “sexually explicit” if it is also patently offensive. 
• Material is patently offensive if it is “so offensive on its face as to affront current community standards of decency.” 
• Whether material affronts those “community standards of decency” depends on a “contextual analysis” consisting of multiple factors, including: “(1) the explicitness or graphic nature of a description or depiction of sexual conduct contained in the material; (2) whether the material consists predominantly of or contains multiple repetitions of depictions of sexual or excretory organs or activities; and (3) whether a reasonable person would find that the material intentionally panders to, titillates, or shocks the reader.” 
• Of course, a single factor is not conclusive. Each factor must be “weigh[ed] and balance[d],” taking into account “the full context in which the description, depiction, or portrayal of sexual conduct appears, to the extent possible, recognizing that contextual determinations are necessarily highly fact-specific and require the consideration of contextual characteristics that may exacerbate or mitigate the offensiveness of the material.” 
• Oh, and the ban does not apply to materials that are “directly related” to school curriculum. 

Got it?

Someone who reads a lot of books might call this system Kafkaesque. FIRE calls it unconstitutional.

No matter what one calls it, the threat is real. The READER Act forces booksellers to slap a rating on books using this vague, confusing set of factors, or risk blacklisting just because the state has a different view of what is “sexually relevant” or “sexually explicit.” Forcing a bookseller to decide if Romeo and Juliet or Greek classics are “sexually relevant,” and threatening economic harm if they label them incorrectly, is an attack on free expression.

Someone who reads a lot of books might call this system Kafkaesque. FIRE calls it unconstitutional.

That’s why FIRE, joined by the Cato Institute and the National Coalition Against Censorship, filed an amicus curiae —“friend-of-the court” — brief in the U.S. Court of Appeals for the Fifth Circuit to explain how the READER Act violates the First Amendment and Fourteenth Amendment to the United States Constitution. 

The Constitution demands that when states pass laws, they give Americans fair notice of what is required or prohibited, with clear standards that prevent public officials from twisting the law to their predilections. And when laws that burden speech fail to provide that necessary notice and clarity, those laws chill Americans’ right to speak freely.

The READER Act places obligations on booksellers using legalese that would befuddle even federal judges. Not only must booksellers rate every book they carry, but they must do so by applying multifactor balancing tests to determine whether a book would offend the community’s standards of decency. But what community? And what standards? These terms are frequently litigated by attorneys in courts. But booksellers must guess at the meanings themselves because the READER Act offers no guidance on either. And if they get it wrong? Booksellers will be prohibited from selling books to public schools. Some booksellers may play it safe and rate everything as sexual — a result that would dramatically curtail the works available to students.

To top it all off, the terms the READER Act uses — such as “patently offensive” — carry a specific legal meaning. But rather than use the commonly accepted legal definitions, the READER Act uses complicated, multifactor balancing tests to determine whether these terms apply. And the kicker? Texas law already empowers schools to remove truly obscene content.

FIRE to Fifth Circuit: Protect our public libraries 

News

FIRE filed a friend-of-the-court brief with the Fifth Circuit Court of Appeals in support of the plaintiffs in Little v. Llano County, a First Amendment suit challenging ideologically driven book removals from Llano Public Library.

Read More

The READER Act appears to be a cover for exactly what the First Amendment prohibits: the targeted censorship of particular views. Take how the READER Act’s sponsors and proponents identified as examples several books describing minority or LGBTQ characters engaging in sexual intercourse as “sexually explicit.” But those same proponents didn’t list “To Kill A Mockingbird,” with its false rape testimony, or the established Texas epic, “Lonesome Dove,” with its vivid discussions of sex.

“Patently offensive” does not mean what Texas thinks it means. And what Texas thinks it means is unconstitutional. Forcing booksellers to censor books based on vague, complicated factors under the threat of economic harm — all in an effort to ban particular, disfavored viewpoints — violates the First Amendment.

FIRE thanks Joshua Bennett from Carter Arnett PLLC for his assistance with FIRE’s brief.