Federal appeals court questions Texas’ new school library regulations

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Federal appellate judges Wednesday questioned a new Texas law requiring book sellers to rate the explicitness and relevance of sexual references in materials they sell to schools, though it was not clear if the court would allow the regulations to stand.

The 5th U.S. Circuit Court of Appeals judges’ inquiries centered on House Bill 900’s definitions of sexual content and community standards. They came during a hearing in a legal challenge brought by book vendors who argue the law is unconstitutionally broad and vague.

The law seeks to keep so-called sexually explicit books off library shelves in the state’s more than 1,200 school systems by calling for the creation of new library standards. It requires school library vendors to assign ratings to books and materials based on the presence of sex depictions or references. And it compels vendors to recall materials already in circulation that are now deemed sexually explicit.

A federal judge barred Texas from enforcing the law in late August. But a panel of 5th Circuit judges blocked that order and the full appellate court, one of the most conservative in the nation, is now considering the overall legal challenge. It is not clear when the appellate court will issue a ruling after Wednesday’s hearing.

“Texas’ new law simply protects parents’ rights to decide what materials their children will read in a public school library,” said Kateland R. Jackson, a lawyer for Texas. “It promotes the state’s interest in preventing those very same schoolchildren from being exposed to harmful, sexually explicit material at taxpayer expense.”

The law is being challenged by bookshops in Houston and Austin, the American Booksellers Association, the Association of American Publishers and the Authors Guild. They argue that HB 900 violates their constitutional rights for a myriad of reasons and that it is logistically impossible and cost prohibitive to comply with.

Laura Lee Prather, a lawyer for the plaintiffs, told judges Wednesday that the law would compel book sellers to “apply imprecise standards to promote the state’s preferred message.”

Vendors who participate will be cornered into conforming with the state’s view, plaintiffs argue.

“The book sellers here are not asserting the right to have books reach library shelves — they’re asserting the right to be free from compelled speech and the right to offer and distribute books without being forced to decipher incomprehensible and vague standards,” Prather said. “Unless the injunction is continued and the administrative stay is lifted, irreparable injury in the form of lost First Amendment rights will ensue. … Even if HB 900 is ultimately overturned, this bell cannot be unrung.”

The Texas Legislature passed HB 900 earlier this year during a wave of efforts to restrict library materials that some parents and critics say explore themes that parents — and not publicly funded books — are better suited to address. Book bans have gained steam across the state since the law was passed, The Texas Tribune and ProPublica found.

“I fought for and passed landmark legislation eliminating sexually explicit content from public school libraries,” bill author Rep. Jared Patterson, R-Frisco, wrote on social media ahead of the hearing. “Please join me in prayer for victory tomorrow for Texas families who oppose the radical sexualization of our children.”

Librarians, literacy advocates and other parents say the recent challenges often target books and materials that explore sexuality and race — topics that, while uncomfortable to some, are important for youth who may not see their lived experiences in other literature.

Texas’ new book law leans on criminal definitions of sexual conduct to outline what amounts to sexually explicit and relevant library content. As the law was being crafted earlier this year, critics said it was too general and vague. On Wednesday, judges joined in questioning the definitions.

“Both sexually explicit, sexually relevant — they talk about material that describes, depicts or portrays sexual conduct. How explicit must a reference be in order to qualify as sexual conduct?” a judge asked the state.

“Your honor, that is something that is likely going to be developed,” Jackson responded. “Again, this law has not had a chance to be developed or implemented yet.”

But vendors face “irreversible” financial, reputational and constitutional damage even as the case shuffles through the courts, Prather said.

The new law will require vendors — some of whom are based in other states — to “somehow opine about what the current community standards are in this state,” Prather said.

Referencing those remarks, a judge asked the state before the end of Wednesday’s hearing “which community’s standards are supposed to govern how a vendor categorizes books?”

“We’re talking about a bill with border-to-border applications, statewide impact. So how do you define the appropriate community?” the judge asked. “Might it be the case ever that what passes community standards muster in El Paso might fail it in Beaumont?”