Booksellers say they fear impending restrictions on books sold to schools in Texas

The vendors say the restrictions could "put them out of business."

August 3, 2023, 6:25 AM

Booksellers in Texas say they're preparing for an unprecedented workload under a new law that requires these vendors to analyze and rate books that they consider to be "sexually explicit" in their judgment.

The law would force stores to issue a recall on past books sold to schools that have newly been rated as "sexually explicit" and refuse to sell these books to schools moving forward.

Several booksellers and publishers in the state claim the law is anti-business and have filed suit against Martha Wong of the Texas State Library and Archives Commission, Keven Ellis of the Texas Board of Education and Commissioner of Education Mike Morath.

The plaintiffs argue that the book restrictions violate the First and 14th Amendments to the U.S. Constitution and force business owners to express and impose the government's views "or face government punishment," according to the complaint.

"We're a very small bookstore," Blue Willow Bookshop owner Valerie Koehler, who is part of the lawsuit, told ABC News. "The cost would be formidable. It could possibly put us out of business."

Charley Rejsek, the CEO of the 53-year-old Austin bookstore BookPeople, told ABC News that she couldn’t fathom how her business would move forward under the demands. Rejsek's business is also involved in the lawsuit.

"We just don't see a path forward because we don't have the records in order to be able to comply, not to mention the workload of reading and reading 1000s, literally 1000s of books in a short period of time, with no financial support," said Rejsek.

The law in question, HB 900, requires booksellers to issue ratings regarding sexually explicit material or sexually relevant material found in books that have been sold or will be sold to a district or school.

Vendors "must perform a contextual analysis of the material to determine whether the material describes, depicts, or portrays sexual conduct in a way that is patently offensive," the legislation says. The booksellers would be tasked with deciding which books are rated as "sexually explicit."

The law requires that booksellers refuse to sell material rated "sexually explicit" to schools or libraries and issue a recall for all copies of such material that is in active use by the district.

Stores that fail to comply will be put on what state Rep. Jared Patterson, a sponsor of the legislation, calls "the death penalty."

PHOTO: Booksellers at BookPeople created a Banned Book section in light of nationwide efforts to restrict certain books in schools and libraries.
Booksellers at BookPeople created a Banned Book section in light of nationwide efforts to restrict certain books in schools and libraries.

"If they're found to not rate them appropriately they go on a banned list and they basically get the death penalty. School districts can no longer buy from these book vendors so the entire responsibility lies on the book vendors -- not the school district -- but the book vendor to accurately rate their materials that they're selling to our schools and making sure that you know it's appropriate and if not then can't sell books in Texas," Patterson said in an interview with the Texas Public Policy Foundation.

Koehler said her store only has two full-time employees and 14 part-time staff members. The process of retroactively tracking and rating books, as well as restricting what can be sold to local schools, could severely impact the small business, she said.

Some vendors in the state say they don't have these records in order to comply.

"We can't even begin to tell you how many books we've sold to schools in the past, Koehler said. "We don't know where those books have ended up. We don't know where books are gonna go when we sell them. We just take orders."

Some book vendors say they're not comfortable deciding what should and should not be in schools across the state.

"The reality is, I don't think there's any books vendor that could speak for all communities across Texas. All communities are different and they have different needs, and they need to be served differently," said Rejsek.

Critics of the law have expressed concern about its broad language around "sexually explicit" ratings. They said it might ban or restrict classic works of literature, such as "A Midsummer Night's Dream," "Romeo and Juliet," "Of Mice and Men," "Anne Frank's Diary: The Graphic Adaptation," "The Canterbury Tales," "I Know Why the Caged Bird Sings," and even the Bible, according to the lawsuit filed against the state.

Gov. Greg Abbott, who signed the bill into law, said it would "grant parents more rights in the education of their children."

"Some school libraries have books with sexually explicit and vulgar materials," Abbott said in a statement on the signing. "I'm signing a law that gets that trash out of our schools."

He said: "Parents deserve to know what books are in school libraries. I'm signing a law that gets inappropriate or vulgar materials out of our schools."

The Texas State Library and Archives Commission, which is targeted in the lawsuit through its chair Martha Wong, declined to comment.

The Texas Board of Education and Commissioner Morath have yet to respond to ABC News' requests for comment.

"It is an overbroad and vague content based law that targets protected speech and is not narrowly tailored to serve a compelling state interest," the lawsuit states. "The Book Ban compels Plaintiffs to express the government's views, even if they do not agree, and operates as a prior restraint, two of the most egregious constitutional infringements."

Booksellers say the ban's passage has already led to school districts halting the purchase of school library books, according to the filing.

PHOTO: BookPeople, an Austin book store, is part of a lawsuit against state education officials over new book selling policies for booksellers in Texas.
BookPeople, an Austin book store, is part of a lawsuit against state education officials over new book selling policies for booksellers in Texas.

"The full implementation of the Book Ban will cause a recall of many books in K-12 public schools, bans of even more, and the establishment of an unconstitutional—and unprecedented—state-wide book licensing regime that compels private companies and individuals to adopt the State's messages or face government punishment," the lawsuit states.

Booksellers are joined by other organizations in the lawsuit, including the Comic Book Legal Defense Fund (CBLDF), the American Booksellers Association, the Association of American Publishers and more.

Jeff Trexler, the Interim Director of the CBLDF, said the group represents booksellers, publishers, and other creators, who he says will "be thinking twice about what to put in a book just because of the potential for someone in Texas ... to make these determinations as to what belongs and what doesn't belong in a book."

Comic books have a long history of addressing social issues concerning race, gender and more, according to Trexler -- meaning they've been at the center of debate and scrutiny for decades. Trexler points to the "great comic book scare" of the mid-1900s, in which the industry was swept up in a moral panic.

Comic books were burned in public gatherings for their messages of social justice, according to the CBLDF. For creators and publishers of all kinds, the Texas restrictions feel like an incoming period of censorship.

"They've seen what happened before," said Trexler. "Creators are worried that publishers won't publish their books. They're worried that stores won't carry their books. They're worried that their books are going to be censored from the internet. They see this as a template for -- you're taking comics and graphic novels away, and having another period of exile."