In an appeal brief filed with the U.S. Court of Appeals for the Fifth Circuit, attorneys for a group of booksellers and publishing industry associations argue that a district court in Texas correctly enjoined HB 900—Texas’s controversial book rating law—and urged the court to let the injunction stand.
In a November 13 filing, attorneys 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) succinctly laid out the legal and practical arguments against the “onerous” and “unconstitutional” law, and insisted that district court judge Alan D. Albright was justified in issuing an August 31 preliminary injunction blocking the law.
“To be clear, Plaintiffs do not assert that the government is obligated to purchase anything from Plaintiffs. Nor do they allege a First Amendment right to allow ‘sexually explicit’ books in schools or prevent their removal. Instead, Plaintiffs seek to exercise their First Amendment right to distribute books without being required to comply with the onerous Rating Requirements of HB 900,” the brief states. At its core, the plaintiffs argue, the case is about “whether the government can compel private entities to, at their own expense, make highly subjective, complex determinations about the content of books in violation of their sincerely held beliefs or be barred from distributing constitutionally protected books to public schools.”
The filing comes after Texas state attorneys filed their appeal on October 30 seeking to overturn Albright’s injunction. In its brief, the state relies largely on three technical arguments: that the plaintiffs claims are “unripe” because new collection development standards mandated by the law have not yet been implemented; that the plaintiffs lack standing; And that the plaintiff claims are constitutionally barred by the doctrine of state sovereign immunity. As to the substantive constitutional questions—primarily, whether the law violates the free speech clause of the First Amendment by forcing booksellers to adopt state-approved ratings for every book sold to Texas public schools—the state insists that it has broad powers to regulate speech made available to children, but argues that the court doesn’t need to reach these questions because the legal deficiencies of the case require its dismissal.
In their appeal brief, the plaintiff booksellers and publishers seek to dismantle the state’s arguments, laying out the “untenable” economic burdens and unconstitutional constraints the law would place on book vendors, which, lawyers argue, would create “an existential crisis” for booksellers and distributors, if allowed to stand.
“The District Court correctly held it had jurisdiction because Plaintiffs meet the standing requirements to bring a First Amendment pre-enforcement challenge, the case is ripe for review, and the Ex Parte Young exception to sovereign immunity applies,” the filing states, rebutting the state's core contentions. “The District Court also correctly found that HB 900’s rating requirements feature at least three fundamental constitutional flaws—they compel unwanted speech, require booksellers to make subjective determinations about the content of books based on a 'web of unconstitutionally vague requirements,' and allow the government to prohibit a wide swath of constitutionally protected material from being disseminated—and preliminarily enjoined those provisions from being enforced. This Court should affirm the preliminary injunction and remand for a trial on the merits.”
Signed by Texas governor Greg Abbott on June 12, HB 900 requires book vendors—at their own considerable expense—to review and rate books, both new and previously sold, for sexual content under a vaguely articulated standard. Under the law, books rated “sexually explicit” (if the book includes material that would be deemed “patently offensive” by unspecified community standards) are banned entirely from Texas public schools. Books rated “sexually relevant” (books with any representation of sexual conduct) would require written parental permission for students to access them. Furthermore, the law gives the state the ultimate power to change the rating on any book, and to bar vendors that do not accept the state's ratings as their own from selling to Texas schools, essentially imposing a state standard.
Those demands present "a plethora of Hobson’s choices,” the publishers and booksellers explain in their appeal. “If Plaintiffs yield to the State’s demands, they will betray their conscience. If Plaintiffs fail to provide ratings or do not update their initial ratings with the State’s ratings, they will face ‘substantial financial harm’ by being prevented from selling any books to public schools.” Furthermore, since the required book ratings will be published online, the law could negatively impact potential book buyers not only in Texas but across the country.
The appeal brief before the Fifth Circuit is the latest move in the closely-watched litigation over HB 900, and comes after Albright—following two hearings in August—issued an unequivocal 59-page written opinion and order blocking the law. In his opinion, Albright said the burdens placed on vendors by HB 900 are “so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.” And he called the state’s attempt to outsource book ratings to private vendors a “textbook” example of compelled speech.
In a legal twist, however, a motions panel of the Fifth Circuit on September 25 issued an administrative stay on Albright’s injunction—a stay not based on the merits of the case—essentially putting Albright's injunction on ice while the appeals court considers that state's challenge. Thus, despite being found unconstitutional, HB 900 is currently in effect pending further action by the appeals court.
Meanwhile, in another twist this week, the author of HB 900, Texas state rep. Jared Patterson, filed an amicus brief with the court (which was accepted despite appearing to come after the court’s deadline for briefs) which, puzzlingly, appeared to refute some of the state’s key legal arguments.
"Contrary to the position of the state in this case, Amicus does not dispute the vendors’ standing to challenge the provisions of [HB 900] that directly regulate them. To the contrary, this Court has been clear that a party who is the object of a regulation has standing to challenge it—full stop," Patterson's brief argues. "Nor does Amicus argue that a challenge to the provisions that directly regulate vendors would not be ripe. This Court has been clear that facial claims are ripe the moment the regulation is passed."
Instead, Patterson's amicus brief appears less concerned with the provisions applying to book vendors, and more interested in having the court leave in place the HB 900's broad definitions for sexual content.
"The court held that the use of 'patently offensive' was unconstitutionally vague, but did not enjoin the rest of the definition. Excising the vague term 'patently offensive' from the definition, the statute is now limited to 'sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.' No one can reasonably dispute the clarity of those term," Patterson argues. "As such, regardless of whether the vendors have standing to challenge the portions of [HB 900] that regulate private vendors, they lack standing to challenge the core provisions of [the law]. There is no stand-alone right to have pornographic materials purchased by public schools."
According to a scheduling order, amicus briefs supporting the plaintiffs are due November 17, and the state's final reply brief is due on November 20. Oral argument is currently set for November 29.
