Booksellers file lawsuit over explicit rating law

Starting Sept. 1, booksellers in Texas cannot sell any material deemed “sexually explicit” to a school library. Several Texas bookstores and national book vendors have filed suit against the new state law, which also seeks to remove sexually explicit material from school libraries.

The law requires book vendors to rate books with sexual content as either “sexually explicit,” meaning they contain offensive material, or “sexually relevant,” meaning they reference sexual topics but are not patently offensive. Booksellers must recall books from school libraries if they have a sexually explicit rating. Students may only check out books with a sexually relevant rating if they have parental permission.

The plaintiffs in the lawsuit argue that the Texas law violates the First Amendment by targeting protected speech and regulating it with “vague and overbroad” terms.

Across the country, numerous states and school boards have limited access to or removed sexually explicit books from school libraries. Some teachers, parents, and activist groups have filed lawsuits in response, citing concerns that the removals restrict protected speech.

Brad Jacob, associate dean for academic programs at Regent University School of Law, said these school policies do not violate free speech. A “book ban” occurs when the government makes it illegal to own, publish, or read a book, Jacob explained. But in these recent cases, school boards and government officials define what is age-appropriate for students and limit access to specific books with problematic material, often by requiring parental permission. Students still have access to the books outside of school, Jacob added.

According to PEN America, more than 1,600 unique titles were “banned” during the 2021-22 school year. However, the Heritage Foundation found that 74 percent of those were still listed as available in schools’ library catalogs.

The American Library Association listed books such as Gender Queer: A Memoir by Maia Kobabe and All Boys Aren’t Blue by George M. Johnson among some of the most commonly removed books.

The books are obscene and include pornographic details, said Tina Descovich, co-founder of Moms for Liberty. “People ask you, ‘Why is this inappropriate for children?’ Why do I have to explain why this is inappropriate for children? Open the book, look at it yourself,” she said. “We do not have the First Amendment right to show pornography to children.”

S. Ernie Walton, associate dean of administration and admissions at Regent University School of Law, called it a “broad stretch” to say the amendment prohibits libraries from restricting access to books. He argued that individual school boards and local officials should be allowed to determine what is appropriate for their libraries.

But school boards can’t remove content based on ideology, Walton said, citing the Supreme Court case Board of Education, Island Trees Union Free School District No. 26 v. Pico.

In the 1982 case, parents asked a New York school board to remove several books because they were “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” After the board removed them, student Steven Pico challenged the decision.

In a narrow 5-4 ruling, the court sided with Pico and said that a school board could not restrict the availability of books in its libraries simply because its members disagreed with their content.

Experts and courts have pointed back to this case during current lawsuits over books. In 2022, the American Civil Liberties Union filed a class action lawsuit on behalf of affected students against the Wentzville, Mo., School District’s removal of books. A federal court rejected the case. A court order cited Justice Sandra Day O’Connor’s dissent in Pico, concluding, “It is not the function of the courts to make the decisions that have been properly relegated to the elected members of school boards.”

Two similar lawsuits were filed in Florida and Arkansas this summer. On July 29, a federal judge put a hold on the Arkansas law until the case is tried or otherwise closed. In a 49-page order, U.S. District Judge Timothy Brooks concluded the law would “permit, if not encourage, library committees and local governmental bodies to make censorship decisions based on content or viewpoint, which would violate the First Amendment.”

Christopher Finan, executive director at the National Coalition Against Censorship, said the Pico case demonstrates that schools don’t have the right to remove any books from school libraries.

“The essence of how American law treats free speech [is] that it protects the right of everybody to speak and allows people to make up their minds for themselves about whether that speech has value or not,” he said. “That fight is the fight we now see going on in the schools.”

Finan recommended that parents ask their children’s teachers for alternative assignments if they are assigned books they find offensive.

Jacob at Regent University said parents should stay connected with their school boards to understand what is available to their children. He pointed out that most books are “middle ground” and widely accepted as appropriate. If parents have concerns with books, they can share their concerns “in a loving and Christlike way,” he said.

“There is a huge amount of literature out there that people are not going to agree on,” he said. “Recognize that not everyone in your community agrees with you, that we are in a diverse, pluralist culture.”