Files Amicus Brief in Texas HB 900 Case
Today, the Association of University Presses (AUPresses) joined with other like-minded groups to file an amicus curiae brief with the US District Court for the Western District of Texas, asking the court to enjoin the implementation of a new Texas law, formerly known as HB 900, that requires the rating of books and other materials according to sexual content if they are to be sold to school libraries.
Acting with the American Association of School Librarians, Barnes and Noble Booksellers Inc., Freedom to Learn Advocates, and the Freedom to Read Foundation, AUPresses supports the plaintiffs requesting preliminary injunction of this misguided law before it is scheduled to take effect on September 1. Those plaintiffs are Austin’s BookPeople, West Houston’s Blue Willow Bookshop, the Association of American Publishers, the American Booksellers Association, the Authors Guild, and the Comic Book Legal Defense Fund.
The amicus brief agrees that this book-banning law is blatantly unconstitutional for all the reasons set forth by the plaintiffs’ motion and elaborates on two aspects:
- First, the ban is a content-based regulation of speech and cannot survive strict scrutiny. Any broad speech restriction aimed at protecting children that is not limited to works without redeeming social, literary, scientific, or artistic value for minors is unconstitutional.
- Second, the burdensome and coercive requirements on publishers, booksellers, and distributors to label literary works according to vague and highly subjective government standards amount to unconstitutional compelled speech.
“We are dismayed by the layers of unconstitutionality in this book-banning law as well as the draconian nature of its implementation,” said AUPresses Executive Director Peter Berkery. “We have received reports from our members that distributors are overwhelmed by the law’s requirements and are asking for publishers’ rating assistance so they can continue to serve school libraries in Texas.”
“The coercive nature of this ban is simply breathtaking,” Berkery continued. “Failure to comply has significant financial and reputational consequences.”
As a community of publishers dedicated to intellectual freedom, diversity and inclusion, and the advance of human knowledge, AUPresses also recognizes that this Texas law rides a rising tide of book challenges and bans, state legislative attacks on the freedom to read, and the unjust—and in some cases life-threatening—vilification of librarians across the US. It represents yet another unconstitutional incursion by politically motivated state legislators into school governance, overriding the rights of parents, schools, librarians, and teachers to evaluate materials and make decisions that best meet the needs of their own individual communities.
Update, August 31, 2023: Federal district judge Alan D. Albright said during a status conference today that he will grant a motion for a preliminary injunction to block Texas’s controversial book ban law, which was due to take effect on September 1. He expects to issue a written order within two weeks.
Update, September 18, 2023: The court’s full decision is now available.
Update, November 17, 2023: Today the Association joined in a second amicus curiae brief in the case disputing this controversial Texas law. AUPresses—along with Barnes & Noble Inc.; the Educational Book and Media Association; Freedom to Learn Advocates; Half Price Books, Records, Magazines, Inc.; Independent Book Publishers Association; Penguin Random House LLC; and Sourcebooks LLC—asked the U.S. Court of Appeals for the Fifth Circuit to lift the administrative stay it granted on September 25 and to affirm the preliminary injunction properly issued in this case by district court in August.
Supporting an appeal filed November 13 by the original plaintiffs, led by the storied independent bookstore BookPeople and including the Association of American Publishers, the brief reiterates that, by requiring library materials vendors to rate books against their wishes, the law compels speech in violation of the First Amendment and forces a poorly designed and constitutionally untenable regulatory regime on booksellers and publishers. “The Texas law would put publishers, booksellers, and librarians in an impossible bind,” said AUPresses executive director Peter Berkery. “As the brief succinctly states, the costs of non-compliance are extraordinary. But so are the costs of compliance.”
Berkery continued, “This law is an outrageous attack on the Association’s core values—a direct assault on publishers’ speech and, indeed, readers’ intellectual freedom. Such unconstitutional attacks must not be allowed to stand or spread.” Read the full brief.
Update, January 17, 2024: The US Court of Appeals for the Fifth Circuit found in favor of the plaintiffs in their case against a new Texas law (formerly known as HB900 or by the acronym READER) that would have required the rating of books before they could be sold to Texas school libraries. The court affirmed the district court’s August decision and preliminary injunction in this case and denied the state’s September motion for an administrative stay.
The appellate court agreed with the plaintiffs (BookPeople, Blue Willow Bookshop, the Association of American Publishers, the American Booksellers Association, the Authors Guild, and the Comic Book Legal Defense Fund) that the law would cause constitutional as well as irreversible economic injuries to the plaintiffs. The court characterized the required book ratings as “neither factual nor uncontroversial” and found that they constitute compelled speech, in violation of the First Amendment.
“We are pleased with the court’s decisive action,” said Executive Director Peter Berkery. “We’re proud to have contributed our community’s insights to the process, upholding the commitment to intellectual freedom we share with booksellers, publishers, authors, and readers in Texas and beyond.“
The full decision is available on plaintiff Association of American Publishers’ site.
Update, April 16, 2024: The US Court of Appeals for the Fifth Circuit will not reconsider its January panel decision blocking the Texas book-rating law. By a 9-8 vote, the court said the case did not require a full panel review, letting stand a trial court’s injunction against the law which found it unconstitutional because it would compel speech.
The full decision is available from Bloomberg Law.
About the Association of University Presses
AUPresses is an organization of 161 international nonprofit scholarly publishers. Since 1937, the Association of University Presses advances the essential role of a global community of publishers whose mission is to ensure academic excellence and cultivate knowledge. The Association holds intellectual freedom, integrity, stewardship, and equity and inclusion as core values. AUPresses members are active across many scholarly disciplines, including the humanities, arts, and sciences, publish significant regional and literary work, and are innovators in the world of digital publishing.