Acting swiftly following an oral ruling, lawyers for state government defendants on Friday asked U.S. District Judge Alan Albright to stay his preliminary injunction against a new law requiring book vendors to rate books sold to public schools for sexual content.
On Thursday, Albright made a bench ruling granting the injunction requested by a group of booksellers who sued to stop enforcement of the law, slated to go into effect Sept. 1. Albright also denied the state’s motion to dismiss and said his written ruling will soon follow.
The stay request was filed “in an abundance of caution” because the written order has not yet issued and pending appeal to the Fifth U.S. Court of Appeals, Assistant Attorney General Christina Cella said in the motion. Stopping the law would cause “irreparable harm to school children,” the motion states.
Days earlier, Albright heard several hours of arguments regarding House Bill 900, 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.
The booksellers said the law must be enjoined to avoid the compulsion of unwanted government speech, the institution of a statewide book licensing regime, and the recall, removal, and banning of many constitutionally protected books in public schools.
Plaintiffs include 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.
Named as defendants are the education agency, the State Board of Education and the Texas State Library and Archives Commission.
During the hearing Albright appeared skeptical of the need for an injunction since the ratings are not due until next April. The booksellers would incur great expense in reviewing millions of books already in school libraries and classrooms, said Laura Lee Prather, chair of the media law practice group at Haynes Boone.
The vendors would be listed by name on the TEA website, along with the ratings, which the education agency could change, Prather said.
Albright questioned Prather about why the state shouldn’t decide what books are available in schools and said at one point: “You’re not going to convince me sexually explicit books should be in a school library.”
Prather gave the judge a copy of Lonesome Dove by Larry McMurtry to illustrate the difficulty of evaluating content in the classic Texas novel lauded for its literary value. She read a short passage where a main character describes sexual relations as a “poke.”
“It’s my favorite book,” said Albright.
Christina Cella, a senior attorney with the Office of Attorney General, questioned the booksellers’ standing to challenge the law, saying that they have no property right to distribute books to schools. She said the state officials are protected by sovereign immunity.
The case number is 1:23-CV-00858.