A federal judge in Texas this week determined provisions of a new state law that would have required book vendors to review and rate books sold to public schools based on sexual content are unconstitutional.
U.S. District Judge Alan D. Albright on Tuesday issued a 24-page opinion permanently banning Texas from enforcing certain parts of HB 900, referred to as the READER Act, which stands for Restricting Explicit and Adult-Designated Educational Resources. He wrote that while the state has an interest in protecting children “from obscene content in the school setting,” the challenged law “misses the mark on accomplishing its goal and is unconstitutional.”
The sections of the law Judge Albright enjoined would have required vendors to review any books sold to public schools for sexual content by using a 16-step process and then to assign a rating to each book accordingly.
Haynes Boone partner Laura Lee Prather, who represented the group of book vendors challenging the law, praised the ruling in a statement issued to The Lawbook
“This victory protects the freedom to read and the right of private citizens to decide what ideas and stories they want to explore,” she said. “The court’s ruling not only protects the First Amendment rights of booksellers in Texas but also sets an important precedent for other states considering similar laws. It’s a strong reminder that the First Amendment prohibits government-imposed ratings and continues to protect open access to books and ideas.”
Austin’s Book People, Houston-based Blue Willow Bookshop, the American Booksellers Association, the Association of American Publishers, the Authors Guild and Comic Book Legal Defense Fund filed suit seeking to enjoin the law in July 2023.
The plaintiffs named as defendants the Texas State Library and Archives Commission, Texas State Board of Education and Texas Education Agency.
On Aug. 31, 2023, Judge Albright granted a preliminary injunction to the plaintiffs in the case from the bench days after hearing several hours of arguments from both sides on the bill, which bans books in public schools deemed “sexually explicit” and restricts student access to books deemed “sexually relevant.”
The bill requires library material vendors to issue appropriate ratings on material sold to a public school. Vendors must submit to the Texas Education Agency an initial list of sexually explicit material and sexually relevant material in active use by a district or charter school and update that list annually.
In Tuesday’s ruling, Judge Albright concluded that the Act “unconstitutionally compels speech, is void for vagueness, and is an unconstitutional prior restraint.”
“The biggest problem of READER stems from the state of Texas trying to compel speech and violate vendors’ First Amendment rights,” Judge Albright wrote, noting at other points in the opinion that Texas’ “interest in safeguarding children against sexually explicit material” is a “good and noble one.”
Specifically, READER required vendors that want to do business with public schools to agree that if the Texas Education Agency disagreed with any rankings of the books, the TEA had the power to change the ranking and present it as if it was the vendor’s own ranking.
“READER gives the TEA this power to substitute its own speech for a vendor’s without imposing any restrictions on the TEA’s use of that power. … Vendors have no mechanism to appeal the TEA’s determination,” the order reads. “They must simply accept the substituted speech, or lose their ability to sell library materials to public schools.”
Judge Albright wrote that Texas aimed to “achieve a noble and important goal” by enacting the law, but “it cannot do so by compelling plaintiffs’ speech in both ways the Supreme Court has clearly forbidden.”
Judge Albright also noted that the law “requires vendors to undertake deeply contextual analyses balancing a myriad of community standards.”
“It also is deeply controversial to label a piece of literature ‘sexually explicit’ without regard to any literary or artistic value,” he wrote.
The plaintiffs are also represented by Catherine Robb, Michael Lambert and Reid Pillifant of Haynes Boone.
The state is represented by Ryan G. Kercher, Mark A. Csoros, Munera Al-Fuhaid and Zachary Berg of the attorney general’s office.
The case number is 1:23-cv-00858.