Saying a written opinion and order would be delivered this week, federal judge Alan D. Albright gave attorneys for the state of Texas a final chance to make their case for limiting his preliminary injunction blocking HB 900, the state’s controversial book rating law, on September 11. But during the 20-minute online hearing, attorneys for the plaintiffs argued forcefully that the judge should stick with his initial August 31 oral order blocking the law in its entirety.
The last-minute hearing comes after lawyers for the state filed a written motion on September 1, asking the court to stay its August 31 preliminary injunction until an appeals court can weigh in and, failing that, to at least allow some provisions of the law to take effect— specifically, a provision that requires Texas state agencies to deliver new collection development standards for school libraries. And at the start of the hearing, Albright appeared open to that position. “I'm considering allowing those to continue,” the judge said of the provisions concerning collection standards, asking the state to identify for the court specific parts of the statute that should be allowed to take effect.
But despite filing a written motion earlier this month, assistant attorney general Christina Cella could not say exactly what sections of the law should be excluded from the injunction. “I don't have the specific section numbers off the top of my head,” she conceded. “It is mainly, and again, I don't want to keep harping on this, but we don't think any of it should be enjoined. But the first portions that pertain specifically to the state or the guidelines that TSLAC (Texas State Library and Archives) needs to develop and then the state board of education needs to approve or not approve.”
Arguing for the plaintiffs—two Texas bookstores, Austin’s BookPeople and Houston’s Blue Willow Bookshop, together with the American Booksellers Association, the Association of American Publishers, the Authors Guild, and the Comic Book Legal Defense Fund—attorney Laura Lee Prather insisted the entire law should be blocked, including the sections involving library collection standards.
“We sought the injunction of HB 900 in its entirety because the unconstitutional definitions that have been discussed at the prior hearings permeate the statute,” Prather told the court.
“The problem is, if you only partially enjoin, then you're going to end up with a situation where constitutionally infirm definitions and processes that allow for no judicial review and unconstitutional prior restraints will go into effect and that will create a tremendous environment of uncertainty for people moving forward,” Prather argued. “This is an unconstitutional law. It's unconstitutional, all four corners of it, and there is no right to enforce an unconstitutional law. If the court were to allow TSLAC and others to go forward and develop these regulations, based on unconstitutional definitions and unconstitutional procedures, that would be like wielding the sword of Damocles over booksellers and students alike.”
Prather concluded by noting that the purpose of a preliminary injunction is to maintain the status quo, and that there are already library collection standards in place. “It is not as though there will be no standards for the libraries to follow,” she told the court. “So we urge the court to enter an injunction of HB 900 in its entirety. I don't see how it can be parsed.”
In a final argument, Cella reiterated the state’s argument that the plaintiffs lacked standing to challenge the state’s power to create or amend library collection guidelines. “So the school district or school districts were mentioned, the students were mentioned, but there's no standing for the plaintiffs to advocate for the school districts or the students,” Cella told the court. “There's just not going to be any harm to the plaintiffs.”
Prather rejected that contention. “There is certainly standing for the booksellers and the plaintiffs in this case to bring this argument concerning the library standards,” she insisted. “As I mentioned, these library standards deal with the prohibition of possessing books that my clients have provided to libraries. It's also dealing with the acquisition and purchase of books that my clients would be selling to libraries.”
