In a written motion filed late on September 1, attorneys for the state of Texas renewed their bid to stay a preliminary injunction blocking the enforcement of HB 900, the state’s controversial new book rating law, until the Fifth Circuit court of appeals can weigh in on the order. While acknowledging that their initial motion to stay the injunction was denied from the bench (in an oral motion made at an August 31 status conference when judge Alan D. Albright announced his decision to temporarily block the law) state attorneys say their subsequent written motion was filed “out of an abundance of caution” as the parties await the judge’s written opinion and order granting the injunction.
In the filing, Texas attorneys renew their arguments that the state is protected by state sovereign immunity and that the plaintiffs lack standing to bring the suit. But in a key point, state attorneys also argue that there are parts of the law that do not involve the plaintiffs’ claims—such as the creation of new state library collection standards—that should be allowed to take effect.
“At a minimum, any order enjoining [HB 900] in its entirety should specifically be stayed pending appeal, because any injunction that enjoins [HB 900's] provisions covering the promulgation of new library-collection standards for Texas school districts improperly extends far beyond the relief required to redress alleged injuries of the library-material vendor Plaintiffs in this case,” the filing states, noting that state agencies, including TSLAC (Texas State Library and Archives Commission) and the SBOE (State Board of Education) are required by the law to deliver new standards by January 1, 2024. “Meeting that future deadline is an arduous task that requires significant present action,” the filing argues. “Although Plaintiffs are not formally affected by any requirements of [HB 900] until April 1, 2024, none of the front-end, internal policy-making requirements of the state can take place with an order enjoining [HB 900] in place.”
The move comes after federal judge Alan D. Albright ruled from the bench August 31, denying the state’s bid to dismiss the high-profile suit, and granting the plaintiffs’ motion to block the law “in its entirety” from taking effect as scheduled on September 1. A written opinion and order is expected soon, possibly as early as this week.
Signed by Texas governor Greg Abbott on June 12, HB 900 requires book vendors to review and rate books for sexual content under a vaguely articulated standard as a condition of doing business with Texas public schools. Under the law, books rated “sexually explicit” (if the book includes material deemed “patently offensive” by unspecified community standards) would be banned from Texas schools while books rated sexually relevant (books with any representation of sexual conduct) would require students to have written parental permission to access them.
In their lawsuit seeking to block the law, 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—have focused on the parts of the state law that would require vendors to rate books, arguing that the law represents an unconstitutional restraint on the freedom to read, and an untenable burden on booksellers.
