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Legal strategy behind Texas’ 6-week abortion ban could be applied to library books next

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In 2021, Texas lawmakers passed SB8, a bill that threatened abortion providers by incentivizing civil lawsuits against them, effectively banning abortions after six weeks of pregnancy. The strategy was unique and controversial – and it served as a blueprint for other legislatures proposing similar measures before the Supreme Court’s 2022 decision overturning Roe v. Wade.

Fast-forward to the present: Last week, Lt. Gov. Dan Patrick said one of his priorities for this legislative session would be to ban what he called “obscene” books in Texas schools. And it appears the strategy used in SB8 may be the template for more book bans in a state that experts say has already banned more than any other in recent months.

Asher Price, a reporter for Axios Austin, spoke with the Standard about how ordinances to ban certain books are now being considered by several cities in Texas.

This transcript has been edited lightly for clarity:

Texas Standard: Let’s begin with the person who’s called the architect of Texas’ abortion ban – Senate Bill 8 is more specifically what they’re talking about from the previous session – attorney Jonathan Mitchell. Could you say a little bit more about his role in the creation of that law? 

Asher Price: Sure. I think he was, in a way, the sort of oracle who came up with this novel mechanism that’s crucial to that law, which holds that basically anybody who aids or abets in a prohibited abortion is vulnerable to a lawsuit from any other private citizen. And a citizen who wins the lawsuit is entitled to $10,000 in the cost of attorney fees.

And you report that now Mitchell is turning his attention to book bans. Is he talking about using a similar strategy against librarians? 

Exactly. That’s what caught my attention. Jonathan Mitchell, this Austin attorney, has been drafting ordinances for the city and county level that would allow people to go after librarians for putting on bookshelves “immoral content.” And the ordinances that he’s been drafting, which I obtained a copy of, say that a citizen could sue a librarian or any employee of a city or county who violates the terms of the ordinance.

We’re talking about the creation of a new sort of legal cause of action that I imagine would have librarians looking over their shoulders and fearing that they’re going to put up a book that could get them personally in a lot of hot water. 

Yeah, that’s exactly right. And the ordinance itself, you know, sets the stage for a lot of potential hot water. The draft ordinance says a librarian can’t show any book in a young adult section that includes descriptions of nudity, descriptions of masturbation, or books that describe suicide or self-harm. It also goes on to say that no LGBTQ flag or emblem can be displayed or maintained in a library and that even no employee of the library or of a city can take action that it recognizes or acknowledges June as Pride Month. So it goes in a lot of different directions, and it lays a lot of groundwork for limiting what librarians can do and what can be displayed in libraries.

What strikes me is that one of the important distinctions between what SB8 did and the approach that you’re describing is that one was at least arguably constitutionally protected by a Supreme Court decision that was overturned. The other directly implicates, it seems to me, the First Amendment of the U.S. Constitution, does it not? 

Well, I’m not a constitutional expert, but I would say that, yeah, I think that there are a lot of sort of free speech and constitutional questions that are wrapped up in this. So far, this ordinance hasn’t been adopted, to my knowledge, by any city. So it hasn’t even gotten to the point of getting tested in that way.

You know, there are lawsuits that are going on. There’s one in Llano County, for example, for now, there’s a federal lawsuit regarding the kind of conservative takeover of the libraries in Llano County and a librarian was fired there. And that lawsuit involves free speech questions. But speaking to activists who promoted this draft ordinance, there are folks in Lubbock, in Amarillo and Waco, in communities around Houston that are interested in trying to get their city councils to adopt it. And so, should that happen, yeah, I think exactly these things will get tested in federal court.

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