Federal appeals court prevents Texas from enforcing book-rating law

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The 5th U.S. Circuit Court of Appeals blocked the Texas Education Agency from requiring book vendors to rate books sold to school libraries based on sexual references. 

Key Players

Rep. Jared Patterson (R-Frisco) was elected to the Texas House of Representatives in 2018 and has devoted his political career to authoring and supporting conservative legislation: increasing border security funding, Second Amendment gun rights,and “protect[ing] children from radical indoctrination,” as stated on his website. In 2021, Patterson played a role in the passage of the Texas Heartbeat Act, placing strict restrictions on abortion.

Judge Alan D. Albright, who was nominated by President Donald Trump, was sworn in to the U.S. District Court for the Western District of Texas in September 2018. 

Further Details

PEN America’s Index of School Book Bans found that book banning is most prevalent in the states of Texas, Florida, Missouri, Utah, and South Carolina. The Frisco Independent School District, in Patterson’s legislative district, is among the biggest perpetrators of literary censorship, removing hundreds of books from its library catalog over the past few years. 

On March 9, 2023, Patterson introduced House Bill 900, known as the Restricting Explicit and Adult-Designated Educational Resources (READER) Act, which proposed an amendment to the state Education Code. The bill would require local and national bookstore owners to determine “community standards of decency” and assign labels to books based on the presence of sexual content. The bookstore owners would be prohibited from selling books with “sexually explicit material” to public and open-enrollment charter schools. Additionally, school libraries would be required to review all “sexually relevant” library materials already in their possession and submit a report.

If the state disagreed with a vendor’s or a school’s assessment of a book’s content, it would be empowered to overrule the rating for any book. Any bookseller that failed to abide by these rules would be banned from selling books to public and open-enrollment charter schools in the future. The law was slated to go into effect on Sept. 1, 2023.

At an April 19 debate, some legislators in the Texas House of Representatives expressed concern that the bill’s broad language “could result in the banning of many classic works of literature, such as Twelfth Night, A Midsummer Night’s Dream, Romeo and Juliet, Of Mice and Men, Ulysses, Jane Eyre, The Canterbury Tales, I Know Why the Caged Bird Sings, and even the Bible,” according to a press release from the Association of American Publishers (AAP).

During the debate, Rep. Ron Reynolds (D-Missouri City) pointed out that book bans have a history of censoring books discriminatorily, targeting people of color and the LGBTQ+ community. Reynolds’ proposal of an amendment to the READER Act that would require  the Texas Education Agency to track which books are removed from public schools was shut down by Patterson, who said the bill was “not a race issue.”

“Texas Republicans seem eager to send our state down a slippery slope where extremists can come together and ban huge catalogs of literature every two years — especially if those books don’t mesh with their ideas of what ‘traditional society’ should look like,” said Texas Democratic Party chair Gilberto Hinojosa in a statement.

Despite opposition from some in their party, 12 Democrats voted to pass the READER Act, including Rep. Shawn Thierry (D-Houston) who said the law would protect children from inappropriate material that has “infiltrated” schools.

The bill was challenged by Texan citizens who sat on the floor of the state Capitol in protest, reading some of the censored books, including Calvin and Being Jazz, which discuss transgender youth.

On July 25, a coalition including two Texas bookstores, the American Booksellers Association (ABA), AAP, the Authors Guild, and the Comic Book Legal Defense Fund filed a lawsuit challenging the READER ACT. Defendants in the case include Martha Wong, chair of the Texas State Library and Archives Commission; Keven Ellis, chair of the Texas Board of Education; and Mike Mortah, Commissioner of Education.

The complaint asserts that the law violates both the First and Fourteenth Amendments due to its overbroad and vague language targeting Free Speech, and that it is not narrowly tailored to serve a compelling government interest. 

“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,” the lawsuit states.

Plaintiffs also argued that the law would threaten the business of booksellers, due to the money and time it would take to review all new and existing books in a vendor’s inventory. 

“It is central to the First Amendment that the government can neither restrain nor compel speech,” said Maria A. Pallante, President and CEO of the AAP, “but this law will force booksellers to label constitutionally protected works of literature and nonfiction with highly subjective and stigmatizing ratings, effectively forcing private actors to convey and act upon the government’s views even when they disagree.”

Judge grants motion for preliminary injunction, facing push-back from legislators and attorneys

On Aug. 31, Judge Albright announced he would grant a preliminary injunction to bar implementation of the READER Act sometime in the following two weeks and enjoined the state from enforcing any part of the law. Almost immediately, the Texas Attorney General’s office said it would move to reverse the injunction and appeal the judge’s decision.

In a joint statement, the plaintiffs said, “We are grateful for the Court’s swift action in deciding to enjoin this law, in the process preserving the long-established rights of local communities to set their own standards; protecting the constitutionally protected speech of authors, booksellers, publishers and readers; preventing the state government from unlawfully compelling speech on the part of private citizens; and shielding Texas businesses from the imposition of impossibly onerous conditions.”

On Sept. 1, attorneys for the state of Texas filed a written motion renewing their opposition to the preliminary injunction until the Fifth U.S. Circuit Court of Appeals can weigh in on Albright’s decision.

On Sept. 11, Albright heard from the attorneys who argued for part of the law to remain in place, even if other parts were enjoined. Specifically, the attorneys lobbied for a provision that requires state agencies to deliver new standards for school library collections, which Albright said he was “considering allowing.”

Outcome

Appellate court sides with booksellers 

In November, a three-judge panel of the 5th U.S. Circuit Court of Appeals sided with the state and blocked the lower court’s ruling.

However, on Jan. 17, 2024, the appellate court then affirmed the lower court’s preliminary injunction, preventing the enforcement of the law.

Addressing the reversal, U.S. Circuit Judge Don Willett, nominated by former President Donald Trump, wrote that it was “a different panel of this court” that had initially granted the state’s appeal to block the injunction in November from the panel that ruled in January. 

The court agreed with the booksellers’ argument that the statute violated the First Amendment and that it compelled them to support a particular viewpoint. 

“Plaintiffs have an interest in selling books without being coerced to speak the State’s preferred message,” Willet affirmed, also writing that he was “unpersuaded” by the state’s argument that the law did not violate the plaintiffs’ First Amendment rights. 

Additionally, the court agreed with the lower court about the economic impact of the law,  writing that plaintiffs would likely “sustain economic and constitutional injuries” if the READER Act were to remain in effect. 

“The ratings READER requires are neither factual nor uncontroversial,” the ruling states. 

Those who had brought the lawsuit said the decision allowed Texas parents to “make decisions for their own children without government interference or control. This is a good day for bookstores, readers, and free expression.”

“This decision is a win for Texas and a win for free speech,” Laura Prather, a lawyer for the plaintiffs, stated. “The book rating system in House Bill 900 is a clearly unconstitutional requirement that would irreparably harm booksellers across the state.” 

The Texas Tribune said it had sought comment from the Office of the Texas Attorney General, but received no response. 

Some parts of the law remain in effect 

The appellate court decision did not block the portion of the bill that requires the state library and archives commission to create new standards for library collections. Those standards will prohibit school libraries from obtaining or possessing sexually explicit materials. 

The appellate court also dismissed the plaintiffs’ claims against Ellis and Wong, arguing that they were not responsible for the book ratings that the court determined were unconstitutional. 

As of Feb. 20, 2024, there were no further developments.