(CN) — Texas asked a Fifth Circuit panel on Wednesday to nix an injunction against a new state law provision that requires booksellers to do sexual content ratings for all books they have sold to public school districts.
House Bill 900, the Restricting Explicit and Adult‑Designated Educational Resources (READER) Act, is meant to shield school children from harmful sexually explicit material, and protect parents’ rights to decide what their kids will read.
The GOP-backed legislation is akin to measures passed by Republicans in Virginia, Florida, Indiana, Oklahoma, South Carolina, Utah and Iowa targeting sexual materials in campus libraries and classrooms.
But it has a unique approach of forcing booksellers who want to keep doing business with Texas public schools and open-enrollment charter schools to rate each title they have sold, or will sell, to them as “sexually explicit,” “sexually relevant” or “no rating.”
A coalition of booksellers, authors and publishers — led by Book People Inc., operator of the state’s largest independent bookstore in Austin — sued to block HB 900 in July, claiming its ratings regime would violate their First Amendment free speech rights.
U.S. District Judge Alan Albright, a Donald Trump appointee, sided with the challengers and blocked the rating rules with a preliminary injunction in September.
“READER misses the mark on obscenity with a web of unconstitutionally vague requirements,” he wrote in his ruling. “And the state, in abdicating its responsibility to protect children, forces private individuals and corporations into compliance with an unconstitutional law that violates the First Amendment.”
Texas appealed to the Fifth Circuit and convinced a three-judge panel of the court to issue an administrative stay of Albright’s injunction on Sept. 25, letting the law go fully into effect temporarily.
Another trio of Fifth Circuit judges heard arguments Wednesday to do away with the injunction.
Texas Assistant Solicitor General Kateland Jackson argued plaintiffs lack standing because their claims of economic harm — plaintiff Blue Willow Bookshop, a family-owned business in Houston, for instance, estimated the labor costs to review books it had already sold to schools would be at least $4 million — and First Amendment harm are merely speculative.
Jackson said vendors can opt out of rating books, and the ratings requirement does not even apply to those that do not sell sexually explicit titles to school districts.
But Laura Prather, attorney for the bill’s opponents, noted HB 900 gives the Texas Education Agency the last word on how to properly rate books and said it can easily blacklist vendors, even if they did not believe their books had any sexual content.
“If the state disagrees with the bookseller on a single rating of a single book, they are prohibited from selling any books to Texas schools,” said Prather, a Haynes Boone partner.
The booksellers say Texas is compelling them to speak its own message not only by forcing them to apply a vague 16-step rating process, but also mandating that they adopt the state’s preferred ratings as their own.
Jackson, however, said they don’t have to worry the ratings will be attributed to them.
“There is no reason to believe that the public would understand that these ratings are the speech of the plaintiffs,” she said. “READER does not require them to appear anywhere on the plaintiffs’ own websites, any storefronts, there is no rating or marking that will actually appear on any product sold by any vendor under this law.”
Prather disputed that claim. “Make no mistake these ratings are associated with the booksellers,” she said, adding that during proceedings in the lower court a state attorney said the ratings lists are attributed to vendors, otherwise school districts would have no way of knowing who they can purchase from.
U.S. Circuit Court Judges Don Willett and Dana Douglas, Trump and Barack Obama appointees, respectively, questioned the statute’s definitions of sexually explicit and sexual relevant materials.
“You don’t dispute, do you, that broadly speaking, putting this law aside, broadly speaking states can limit student access to sexual content, right?" Willett asked Prather.
She said she agreed states can regulate curriculum and obscene speech. Yet she took issue with how the bill’s authors derived its definition of sexually explicit material.
Prather complained that lawmakers had cherry-picked the definition from the Texas Penal Code’s regulations of child pornography, which is a “visual medium.”
“So we’re not talking about applicability to literary works,” Prather explained. “It makes it much more difficult when you are looking at it in a completely different medium.”
And, Prather continued, the statute lacks the “guardrails” established by the Supreme Court’s 1973 decision in Miller v. California. In that case, the high court held that when determining whether material is obscene, states must consider if it has artistic, political, literary or scientific value.
Prather warned that if HB 900 is not blocked it will force districts to take high school mainstays such as “To Kill a Mockingbird” out of campuses. The 1960 novel by Harper Lee involves a white lawyer defending a Black man against a false accusation he raped a white woman and includes a rape scene.
“Classics won’t reach students,” Prather said. “Books about uncomfortable truths that young adults need to be aware of, books about sexual abuse, books about human trafficking.”
She urged the panel to uphold Albright’s injunction against the ratings mandate and lift the administrative stay of his order.
Though the Texas State Library and Archives Commission and State Board of Education are still developing standards to guide the book ratings, vendors have until April 1, 2024 to submit their ratings to the Texas Education Agency.
If they don’t meet that deadline, they can no longer sell to the state’s more than 1,000 public school districts, some of which, according to the plaintiffs, have over 6 million books in their collections.
Under the bill, students can only check out books rated sexually relevant for reading outside the school with written parental consent and bookdealers must recall all deemed sexually explicit, which are forever barred from being sold to public schools.
Senior U.S. Circuit Judge Jacques Weiner, a George H.W. Bush appointee, rounded out the panel. The judges did not say when they would rule on the appeal.
The largest red state in the country, Texas has had plenty of dustups about school reading materials.
Following outcries about memoirs by nonbinary and lesbian authors in high school libraries, Governor Greg Abbott in November 2021 ordered state officials to open a criminal probe into public school employees giving books he considers “pornographic” to students.
After the superintendent of Granbury Independent School District was secretly recorded directing librarians to get rid of LGBTQ-related books, the U.S. Department of Education opened an investigation that is ongoing.
In August, Granbury's school board censured one of its members who is pushing for removal of more works after she snuck into a high school library and was caught by an assistant principal looking at books in the dark with her cellphone flashlight.
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