Texas Book Ban Places Responsibility – and Liability – on Book Sellers

​Texas is going big on school library content curation. A new law aims to keep “sexually explicit” books off of school library shelves, which brings to mind the old saw about killing a fly with an elephant gun.

HB 900 – also known as the Restricting Explicit and Adult-Designated Educational Resources (READER) Act – requires vendors who sell books to public schools to rate those books based on their degree of sexual content. Any book judged “patently offensive” will be deemed “sexually explicit” and removed from shelves entirely, while books deemed “sexually relevant” – publications with general depictions of sex that are nonetheless related to the curriculum – will require parental consent.

Dystopian concerns aside about outlawing a number of classics, the biggest issue with this law is its implementation. The only guidelines for judging whether a book is “patently offensive” involve a highly subjective “contextual analysis” to be performed by the vendors. 

The term “vendor” means “any entity that sells library material to a public primary or secondary school in this state.” In practice, that’s everyone from Amazon to the smallest independent bookstore, often with two people on staff – and one of them might be a cat. Essentially, this law places the responsibility for protecting Texas’ children on private companies and small outfits.

Even the largest independent bookseller – BookPeople in Austin – has about 100 busy employees and little bandwidth to screen the potentially thousands of books it might sell to schools any given year. What’s more, the law applies retroactively, meaning vendors will have to issue recalls on “sexually explicit” materials that may still be in circulation. If vendors fail to comply with the new law’s requirements, they’ll be barred from selling to public schools. If they are able to comply, costs will go likely go up – both for the schools and, by extension, for the taxpayers.

As BookPeople CEO Charley Rejsek put it: “We’re losing all school business forever. That’s how it’s going to hurt us.”

Protect The 1st has reported about increasing efforts to censor school reading materials. Texas is at the forefront of this controversy. According to a study from the American Library Association, the Lone Star State saw the most attempts to ban books in 2022.

As we’ve also written, what is most needed in the context of book curation for school-aged minors is common sense. As a nation, we should seek to strike a balance between protecting the innocence of young people and throwing out material of great literary value just because it may include a few arguably inappropriate (for some) passages. Parents and teachers should be at the helm in these decisions – not private companies.

What HB 900 purports to do is legislate common sense. Logistically, that’s hard achieve. As one bookseller analogized, this situation would be like a movie studio releasing a film and then requiring individual theaters to rate it. Who’s to say how interpretations might differ from Regal to AMC to Alamo Drafthouse?  

Again, curation is absolutely necessary for children’s books, but it should be the responsibility of schools to know what they are buying. And it should be the responsibility of the legislature to pass laws that are not untenably vague.

Asked whether Larry McMurtry’s Pulitzer Prize-wining Lonesome Dove – the great Texas novel – would be removed under the new standards, READER Act sponsor Rep. Jared Patterson said: “I don’t care if it’s ‘Lonesome Dove’ or any other novel — if it has sexually explicit material, I would view that as an incredible win for the students of the state to not have that material in the library.”

Such a decision would be up to an individual bookseller. In this litigious age, with the threat of losing access to a lucrative market, the likelihood is that whenever there is any judgment call, the bookseller will have to always go “thumbs down.” These will always be business decisions, not literary and cultural judgements.

Unsurprisingly, the READER Act is currently embroiled in litigation. Judge Alan D. Albright enjoined the law’s implementation on Sept. 18, citing its “unconstitutionally vague requirements.” The Fifth Circuit Court of Appeals subsequently blocked that move, allowing the law to take effect as it considers the case. Oral argument is currently scheduled for Nov. 29.
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We’ll continue to monitor how this law unfolds.