Texas officials were sued on Tuesday in federal court over a new Texas law banning and restricting certain books deemed “sexually explicit” or “sexually relevant” in public schools. The law will take effect on September 1, 2023.
The plaintiffs in the case, a group of booksellers, publishers, and writers, assert that the law violates the First and Fourteenth Amendments and should not be enforced. They claim that the law is overly broad, vague, and not narrowly tailored to serve a compelling state interest. Furthermore, they argue that the law forces them to express the government’s views and operates as a prior restraint.
According to the complaint, “library material vendors” are required to rate every book sold to a school that is not part of the required curriculum or remains in “active use” and any books it wishes to sell to public schools in the future that are not part of the required curriculum as either “sexually explicit,” “sexually relevant,” or “no rating.” If the book is “sexually explicit,” the complaint says, it cannot be sold to public schools and must be recalled if it has already been sold and is in active use. If a book is “sexually relevant,” it can only be used by a student “outside the school library” with parental consent. Booksellers who do not submit their ratings to the Texas Education Agency are prohibited from selling any books to public schools.
The Texas Education Agency can overrule a bookseller’s rating without explanation or the right to appeal. It can also prohibit booksellers from selling any books to public schools if they do not adopt the new rating, says the complaint. The plaintiffs assert that the law “grants the government unchecked licensing authority to dictate which books are allowed in public schools and which booksellers can conduct business with public schools.”
The complaint cites Mutual Film Corporation v. Industrial Commission of Ohio, a 1915 Supreme Court case that held that states and local governments could grant or deny film licenses because films were not art subject to First Amendment protections. That case was overturned in the 1952 case Joseph Burstyn, Inc. v. Wilson when the Court found that films were in fact art subject to free speech protections.
In 1959, the complaint points out, the Supreme Court found that New York violated the Constitution when it denied a license for a film with “immoral” content. Also in 1959, the Supreme Court overturned a bookstore owner’s conviction for distributing “obscene” books because the ordinance violated the freedom of the press. Nine years later, the Supreme Court struck down a Dallas ordinance creating a film review board tasked with rating films as “not suitable for young persons” as unconstitutional.
The defendants in the case are Martha Wong, sued in her official capacity as the Chair of the Texas State Library and Archives Commission; Keven Ellis, sued in his official capacity as the Chair of the Texas State Board of Education; and Mike Morath, sued in his official capacity as the Commissioner of the Texas Education Agency.
Additional Reading
Book sellers and publishers sue Texas officials over new book ratings law, Jurist (July 26, 2023)
Publishers, booksellers sue Texas over public school book ban, Reuters (July 27, 2023)
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