After weeks of anticipation, the U.S. Court of Appeals for the Fifth Circuit will hear oral argument on November 29 in the state’s appeal of judge Alan D. Albright’s August 31 decision to enjoin key provisions of HB 900, Texas’s controversial book rating law. In a final reply brief filed late last week, Texas state attorneys insist the appeals court must reverse the injunction and send the case back to Albright with instructions that he dismiss the plaintiffs’ case.
In their brief, state attorneys reiterated what they see as three “fatal flaws” in the case. First, the state argues that the case presented by 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) is not ripe because there is no actual injury—in other words, because the first ratings are not required until April 2024, plaintiffs can’t point to lost business.
Furthermore, in an argument not likely to be popular in the supposedly business-friendly state of Texas, the state argues that the cost of doing the ratings can simply be passed on to taxpayers. “Plaintiffs have not shown that anticipated compliance costs are nonrecoverable,” the state’s reply brief argues. “Ordinary economics give rise to a presumption—which Plaintiffs have done nothing to rebut—that such costs are likely to be passed on to Plaintiffs’ customers.”
Second, the state argues that that the plaintiffs’ claims are barred by state sovereign immunity, a legal doctrine which generally protects states from being sued in federal court. But there is an exception—known as Ex parte Young—that allows state officials to be sued in their official capacity, which the District Court easily found applies here. The state, however, contends that because there is currently no threat of action against any of the plaintiffs, the Ex parte Young exception fails.
And finally, if the appeals court does not dismiss the case on technical grounds, the state argues that the law is not unconstitutionally vague, nor does it compel the plaintiffs’ speech. Rather, in its reply brief, the state again compares the book ratings to generic warning labels, and insists that it has broad powers—and, in fact, a responsibility—to regulate the books provided to minors in Texas schools, awkwardly comparing the government's purchase of library books to the purchase of weapons.
“Precisely because government can place conditions on government programs, the United States can condition defense purchases on promises that the weapons will perform for their function, and Texas can condition purchase of library books on promises that the books comply with standards governing which materials belong in a school library,” the government brief argues.
And even if the court finds that the ratings are "compelled speech," as Albright did in his September written decision, the state brief argues that “an exception to the general prohibition on compelled speech exists for ‘essential operations’ of the government,” suggesting that, in another awkward comparison, compelling booksellers to adopt state-sanctioned ratings of books for sexual content is "no less essential than ‘requir[ing] sex offenders to register their residence’ to ‘protect the public.'"
Signed by Texas governor Greg Abbott on June 12, HB 900 requires book vendors to review and rate books, both new and previously sold, for sexual content. Books rated “sexually explicit” (books that include material deemed “patently offensive” by unspecified community standards) are banned entirely from Texas public schools under the law. 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.
In their November 13 filing with the appeals court, attorneys for the plaintiffs laid out the legal and practical arguments against what they called an “onerous” and “unconstitutional” law, insisting that district court judge Alan D. Albright was justified in issuing his August 31 preliminary injunction blocking it. Fundamentally, 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 appeal before the Fifth Circuit—widely considered to be the most conservative court in the country—is the latest move in the closely-watched litigation over HB 900, and comes after Albright—following two hearings in August—issued and unequivocal 59-page written opinion and order blocking the law. In his opinion, Albright wrote that 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.
“The Court does not dispute that the state has a strong interest in what children are able to learn and access in schools,” Albright concluded in his September 19 written opinion. “That said, [the law] misses the mark on obscenity with a web of unconstitutionally vague requirements. 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.”
In a legal twist, however, a motions panel of the Fifth Circuit issued an administrative stay on Albright’s injunction on September 25—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.
In their appeal brief, the plaintiffs have asked the appeals court to lift the administrative stay while it decides the case. The state has asked for the administrative stay on Albright’s injunction to remain in place. And even though the appeals court is hearing the case on expedited schedule, a decision could still take considerable time. It's worth noting that the court has yet to rule on an appeal of an injunction in another prominent Texas book banning case, Little v. Llano County, despite hearing oral arguments nearly six months ago.
