February 5, 2026
Memo in Opposition to AB 961 from the American Booksellers Association
Honorable Members of the Wisconsin Assembly Children and Families Committee,
On behalf of the American Booksellers Association, the not-for-profit trade association of independent bookstores, including 90 in Wisconsin, I am writing in strong opposition to AB 961, a bill requiring warning labels on “explicit content.” The bill as written is likely unconstitutional and will be impossible to comply with without serious revision and clarification. As it stands, the bill could put small independent bookstores out of business.
AB 961 from a Bookseller’s Perspective
For our purposes, AB 961 mandates that a bookstore carrying “explicit content” must affix a warning label to the cover or first page of the books in question. The definition of “explicit content” encompasses more than “obscene material” as defined in Wisconsin code 944.21(c). Notably, it leaves out clear and constitutionally adherent guidelines for applying contemporary community standards, considering a work as a whole when designating literary or artistic value, and requiring an appeal to prurient interest. Without these guidelines, it is likely that the bill violates Article 1, Section 3 of the Wisconsin Constitution and the First Amendment of the United States Constitution. It also lacks basic clarity about who bears the burden of affixing labels, increasing the likelihood that it will be pushed onto booksellers rather than publishers.
The threat of state enforcement is bad enough without the civil cause of action, but with a civil cause of action in place, the bill’s vagueness and subjectivity can be weaponized against businesses, or simply lead to invasive and expensive audits out of individuals misunderstanding obscenity law. “If you’ve done nothing wrong, you have nothing to fear” is not acceptable when audits and lawsuits can disrupt a business’s daily operations based on a private individual’s actions.
Financial Harms
Impossibility and Cost of Compliance
Beyond its Constitutional harms, the bill presents serious and potentially existential threats to independent bookstores in Wisconsin. These threats are material and financial. It is not at all clear how a bookstore owner would make the following judgments:
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Whether a book is “intended” for adults
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How to determine literary or artistic value for every book in their stock, whether to consider the work as a whole, and how great a degree of value is required to disqualify a book from being “explicit”
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What makes a depiction of sexual conduct patently offensive and whose standards to use for that judgment
Imagine a bookstore owner, even an owner of a small storefront with 1,000 books in stock, trying to confidently make these highly subjective determinations for every book on their shelves. Combing every page of every book for something that a single individual might find offensive, and determining the literary or artistic merit of the work on top of that, would be impossible. It is especially unclear how to make these judgments when considering “serious” merit as it applies to mainstream romance novels, fantasy novels, and so forth.
Deterring Sales
Setting that aside, a bookstore affixing labels as required would deter sales even to those for whom content is appropriate and intended. A warning label marking a book as containing “explicit content” is not just a deterrent for minors and their guardians. It is a deterrent for adults who do not want the reputation of reading “offensive” books, particularly in public. Would an adult reading Toni Morrison, Sarah J. Maas, or Kurt Vonnegut on the bus be required to wear a proverbial Scarlet Letter for doing so? In the vague and subjective standards of the bill as written, it is truly impossible to determine.
Inability to Recoup Losses
In addition to lost sales, bookseller-affixed warning labels would prevent booksellers from recouping losses from unsold merchandise. Bookselling is peculiar in that retailers can return unsold books to publishers and recoup the cost, up to and including the cost, typically as credit with the publisher. This is an essential economic fact of bookselling, so much so that many stores can only carry books if they are returnable to the supplier. If a publisher has not affixed a warning label and a bookstore is required to, the book may be unreturnable to the publisher. This will amount to a surcharge, absorbed by retailers, based on the contents of books. The State’s determination that something “may be offensive” should not make it unsalable for fear of liability or financial ruin.
Constitutional Harms
For bookstores, this is a matter of compelled speech. If a store is required to affix a label to a book not only deeming it explicit, but potentially “harmful” and “offensive.” The State apparently would have a right to overrule these decisions made by bookstores and compel them to accept the State’s designation — and not only accept it, but present it as their own judgment, even if it is not a judgment they agree with or want to make. This is compelled speech, forcing the words of the State into the mouths of small business owners.
Wisconsin’s independent bookstores are Main Street businesses in the truest sense. They create jobs, keep money in the local economy, provide free programming for their communities, and offer a space outside of work and the home where people can gather, encounter each other, and exchange ideas. They are spaces of democracy and mom-and-pop prosperity. Yet their profit margins are razor thin. They cannot afford to pay this price for selling legal, mainstream content to consenting adults.
Sincerely,
Philomena Polefrone, PhD
Associate Director of Advocacy and Public Policy
American Booksellers Association