Tag: censorship

Court Demolishes Texas Book “Rating” Law

In the 1980s, the Parents Music Resource Center (PMRC), led by Tipper Gore and several other wives of Washington insiders,[1] sought to compel record labels to place stickers on albums warning consumers that the songs within contained “explicit lyrics.” Songwriters, including Frank Zappa, John Denver, and Dee Snider testified in Senate hearings to oppose the label initiative on First Amendment grounds, but in the end, the RIAA agreed to voluntary use of the labels. Predictably, the result was a lot of ridicule of the now defunct PMRC, and the warning labels mostly served to make the albums more attractive to listeners.

Today’s self-appointed defenders of children against “dangerous” cultural material are more aggressive and mean-spirited than the PMRC and, it appears, more incompetent. Both the tenor and the incompetence were recently highlighted in a 59-page opinion handed down by the District Court for the Western District of Texas, eviscerating a law, unironically called READER,[2] that would have required book vendors to engage in a complexly incoherent rating scheme.

The complaint, filed by Book People, Blue Willow Book Shop, American Booksellers Association, Association of American Publishers, Authors Guild, and Comic Book Legal Defense Fund, alleged that, if enforced, the Texas law would violate the First and Fourteenth Amendments. Plaintiffs won a summary judgment on all questions of law, and the state is enjoined from enforcing READER as of the September 18 decision. In sum, Judge Allan D. Albright, a Trump appointee, stated, “READER’s requirements for vendors are so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.”

That is a sober and sobering assessment of the provisions, which appear to have been designed not to reasonably assess books for age appropriateness in school settings, but to ban the sale of certain books by erecting a thicket of compliance too dense and jagged to navigate. Either that, or the law was pure theater and never meant to be enforced because it is so unwieldy. Judge Albright’s opinion is rich with pull-quotes criticizing a law that would have burdened vendors with extraordinary expense (in the millions of dollars) to analyze their catalogs according to undefined terms and methodologies…

The lack of any blueprint for the Plaintiffs to follow creates a blunt reality that under this scheme it is guaranteed that different book distributors and sellers will arrive at different assessments with respect to hundreds if not thousands of books.

Plus, the inevitably broad range of interpretations and applications of READER would be further exacerbated by the authority of the Texas Education Agency (TEA) to overrule a vendor’s rating without any clear guidance or process for appeal…

There is precious little if any language in the statute to ensure that any decision made by the TEA with respect to the rating of any book will be any more ‘accurate’ (whatever that means) allowing for the enormous possibility if not probability that it will be entirely arbitrary and capricious (at best). In other words, vendors must decide between either accepting the state administrative agency substituted speech as their own or being effectively blacklisted.

Specifically, if READER were to be enforced, book vendors would have been required to rate both their current catalogs and “books in active use” according to new state standards for “sexually explicit” and “sexually relevant” material. Given the current climate flush with politicians who routinely conflate sexual identity with sexual conduct, it takes little imagination to guess at the Texas legislature’s intent with a vague category called “sexually relevant.”

For instance, how might a vendor be expected to rate my friend J. J. Austrian’s book about two earthworms getting married when there is no sex in the story at all? Although Worm Loves Worm may be read as allegorical support for same-sex marriage, does that subjective reading make the book “sexually relevant” in some administrator’s mind? J. J. said during our podcast interview that most kids don’t even pick up on a “gay marriage” metaphor—earthworms are hermaphrodites after all—which suggests that adults who have banned the book are likely poor readers of both the story and the intended audience. Now, imagine being a vendor and trying to rate hundreds or thousands of titles in context to the “community standards” of all the disparate communities across the State of Texas. “It is an open question whether this community standard is based on Austin, Texas, or Onalaska, Texas—or any of the more than 1,200 incorporated municipalities across Texas,” the opinion states.

There are too many moving parts in this judgment to discuss in one post, but I think the bottom line is that laws like READER aren’t about protecting children, or even about notifying parents about content, as the PMRC intended. While any state has a right and authority to erect a system for vetting materials purchased by its schools, sloppy, overbroad, Catch-22 laws like READER, especially in the current climate, are arguably about little more than hating gay and trans people.

I would challenge anyone to find young children’s literature that contains “sexually explicit” material, as defined by law[3] or common sense, let alone find the mythical Anais Nin picture book in a school library. On the other hand, if “sexually explicit” or “sexually relevant” are terms that Texas lawmakers intended to encompass stories in which a character has two dads, or stories about young people struggling with gender identity, those terms are as illiterate as they are constitutionally unworkable.

For as long as I’ve been politically conscious, “conservative” Americans have claimed to oppose the nanny state and to value individual effort. So, maybe parents who don’t want their children reading certain books can stop asking the state to do their parenting for them, read the damn books themselves, and make the individual decisions they deem necessary. Because there is a world of difference between a personal choice to restrict access to a book for one’s own child and demanding that a book disappear from the shelves for all children. Fortunately, the latter can rarely be achieved without violating the Constitution.

[1] Also Susan Baker, Pam Howar, and Sally Nevius.

[2] Restricting Explicit and Adult-Designated Educational Resources Act

[3] “The Miller test [for sexually explicit material] requires the following elements: ‘(a) whether the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’”

Photo by: shutter2u

Podcast: On Being Among the Banned with Author J. J. Austrian

Pride month is more than celebratory in a time when book bans are on the rise in the United States, and 26% of the titles banned “have LGBTQ+ characters or themes,” according to PEN America. With politicians like Ron DeSantis determined to make “anti-wokeness” part of the Republican brand, this neologism for hate-speech has taken the form of book and media censorship in school and public libraries around the country. One of these banned books, entitled Worm Loves Worm, was written by a close friend named J. J. Austrian, who joins me for this episode of the podcast. Illustrated by Mike Curato and published by Harper Collins in 2016, Worm Loves Worm is a story for young children about two earthworms getting married and trying to figure out which is the bride and which is the groom while navigating the not-so-helpful advice and opinions of the other bugs and critters in attendance.

Show Contents

  • 01:22 – How does it feel to be among the banned?
  • 03:42 –  The creation of Worm Loves Worm.
  • 08:12 – What children get from Worm Loves Worm.
  • 09:36 – It’s not about sex. Indoctrination to what?
  • 12:23 – Attacks on the transgender community.
  • 15:03 – Did you expect the backlash when the book first came out?
  • 18:34 -Is it hard not to look at the negative comments?
  • 20:19 – The “shotgun wedding.”
  • 21:50 – Increase in attacks since it was first published.
  • 24:10 – More worried about middle grade and young adult readers.
  • 28:10 – Ever criticized for writing about a subject that’s not your subject? (outside your lane)
  • 34:45 – Do you have Woke Mind Virus?
  • 37:15 – A conversation about satire.
  • 44:33 – How banning can affect the author.
  • 47:44 – The victim’s narrative.
  • 50:15 – Hope for the future?
  • 52:44 – The Printing Press and the Internet
  • 57:05 – Love is love.

Censorship in the ALI Restatement of Copyright Project?

Justice O’Connor, in Harper & Row v. Nation Enterprises (1985), called copyright “the engine of free expression.” This was not a novel idea. The Justice was merely summarizing a well-established relationship between an author’s copyrights and the freedom to express herself as she wishes. Freedom in artistic expression requires that the author have a degree of personal economic liberty, which obviates the need to appeal solely to state-run cultural institutions or to wealthy patrons, either of which may seek to censor or otherwise control creative expression. The American system, which grants any author a copyright and lets the market decide whether the work is desirable, has, in general, yielded a diverse bounty of creative works in which we see the speech right and copyright working in tandem.

Yet, despite the volume of empirical evidence that O’Connor’s summary is axiomatic, copyright skeptics, including the individuals who launched, and are leading, the ALI Restatement of Copyright Law, have grounded their skepticism partly on the belief that copyright is fundamentally at odds with the speech right. I have written enough posts taking issue with that assertion and will not repeat those arguments here. Instead, the purpose of this post is to call attention to hypocrisy. Because while the Reporters comprise those who so often claim to rescue speech from copyright, they are silencing dissent, even pretending it does not exist, among their own colleagues who’ve been working on the Copyright Restatement project.

On May 21, Register of Copyrights Shira Perlmutter wrote a letter to the ALI, announcing her resignation as an Adviser to the Restatement project, stating that in her new role as Register (since September 2020), it is no longer appropriate for her to be active in the project. But more importantly, Perlmutter reiterates key areas of concern that the Copyright Office has expressed with the Restatement since before her tenure as Register of Copyrights began. These are: 1) a lack of deference to the statutory text; 2) a lack of deference to the Copyright Office as the expert agency; and 3) a lack of transparency about the drafting and decision-making process. In short, the USCO questions the propriety, methodology, and process of the ALI’s first statutory Restatement project in its history. On the subject of the statutory text, Register Perlmutter states:

In the latest Tentative Draft, as in prior drafts, the “black letter” statement of the law at the beginning of each section sometimes quotes the applicable statutory provisions, but at other times rephrases them. In statutory interpretation, there is no substitute for the words of the statute itself. Rephrasing, however well-intentioned, inevitably introduces imprecision and interpretive choices. This is particularly true where the Restatement presents these statements as the law itself, not as interpretations of the law.

In essence, the Register of Copyrights is suggesting that the ALI is usurping and mislabeling the true “black letter” law—the Copyright Act. As I have described previously, the concept of “black letter” in Restatements developed as a method for restating common law. The ALI’s founders recognized the folly, indeed impropriety, of restating statutory text under the rubric of  “black letter” drafted by Reporters.[1]

A variation on this precise concern—the Restatement’s “failure to treat the text of the Copyright Act as blackletter rules”—was submitted as a proposed amendment to the Restatement, co-authored by Professors Shyamkrishna Balganesh, Jane Ginsburg, Peter S. Menell, and David Nimmer. (See full amendment text here.) For those not immersed in copyright law, these are some of the heaviest hitters in the game; they are scholars open to debate, but who should not be ignored. Nevertheless, the ALI intends to disregard their amendment, stating in an email to its authors that it will not even be considered because, “The ALI does not add to the drafts what various advisers or members think about different sections or the draft as a whole.”

In plain terms, key Advisers to the project—and the four named above are not the only ones—have repeatedly tried to emphasize the premise that embarking on a Restatement of a comprehensive federal statute requires a different approach than every other Restatement in ALI’s nearly one-hundred-year history. That approach should begin with the language in the statute and the legislative significance of every negotiated word in it. Not only has the ALI elected to ignore this advice, but it has apparently censored Advisers’ views on these fundamental questions, thereby confirming Register Perlmutter’s concerns about transparency.

ALI and the Reporters are not merely overriding dissent, they seem to want to pretend it doesn’t exist. For example, Professor Samuelson, who initiated the Restatement project, tweeted on 12/4/2019, “Five well respected scholars are the reporters and everything they say is closely reviewed by other experts, including judges.” This comment is consistent with what the scholars named above describe as ALI creating the appearance that a collective of high-octane experts is negotiating in good faith, while eliding the fact that many of those experts are dissenters.

In fact, I am told by the authors of the proposed amendment that one of the primary reasons for seeking its adoption is to stave off the perception that the mere presence of a diverse body of scholars, experts, and industry representatives (who serve as Advisers) means that the Restatement is being produced through a collaborative effort. On the contrary, their criticisms and others are apparently not being revealed to the full membership of the ALI, let alone to the public.

So, for those keeping score at home, follow the logic:  the folks who started the Copyright Restatement project are among those academics who assert that copyright must be weakened in deference to the speech right. Yet, in a process that is already dubious at inception and obfuscated for the general public by its arcane nature, the ALI and the Reporters seek to avoid acknowledging even the existence of opposition from many of the same colleagues whose credentials give the project the color of validity. Whether that meets the legal standard for compelled speech is for someone else to say, but it must feel that way to some of the Advisers.

[1] Am. Law Institute Report on Business Associations, 1924: “…it is obvious that the Restatement, if it deals with the subject [of statutory law] at all, must set forth the statutory provisions as Principles of Law or Comment.”