At a 45-minute hearing on November 29, lawyers for a coalition of plaintiff booksellers and publishing industry groups told a panel of the Fifth Circuit Court of Appeals in New Orleans that a Texas district court was right to issue an order blocking the state’s controversial book rating law, HB 900, and urged the court to immediately lift an administrative stay that has allowed the law to take effect despite being found unconstitutional.
“Your honors, it's important to stress that unless the injunction is continued and the administrative stay is lifted, irreparable injury in the form of lost First Amendment rights will ensue,” plaintiff attorney Laura Lee Prather told the court. “In the absence of an injunction, the financial, reputational, and constitutional effects of the required ratings will be irreversible, even if HB 900 is ultimately overturned. This bell cannot be unrung.”
The highly anticipated hearing comes nearly three months after Judge Alan D. Albright orally enjoined HB 900, and more than two months since Albright issued an unequivocal 59-page written opinion and order blocking the law.
The state immediately appealed Albright's decision and, in a legal twist, 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—which has allowed the law to take effect pending further action by the appeals court.
Signed by Texas governor Greg Abbott on June 12, HB 900 requires book vendors to review and rate books sold to Texas schools—both new books and books previously sold—for sexual content. Under the law, books rated “sexually explicit” (books with material 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 unchecked power to change the vendor rating on any book, and to bar vendors that do not accept the state's ratings from selling to Texas schools.
The suit was first filed in July, by a coalition including 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.
The State
As expected from the state’s filings, Texas state attorney Kateland Jackson argued that Albright’s injunction should be vacated and the case remanded to him with instructions to dismiss it on technical grounds.
“Despite plaintiffs’ inflammatory rhetoric, [HB 900] is not a book ban,” Jackson opened. “But the court does not need to get into the merits of this case because the plaintiffs’ claims are barred for three related reasons: ripeness, standing, and sovereign immunity. The simplest way for this court to resolve plaintiffs’ claims is to determine that they are not yet ripe.”
For its part, however, the court did not have questions about the technical issues, and appeared more concerned with the definitions laid out in the law, and how the burden to enforce them falls on booksellers and vendors. “Why don't you leapfrog and get to the merits?” judge Don Willett suggested at one point, interrupting Jackson about halfway through her presentation.
On the merits, Jackson argued that the plaintiffs' constitutional arguments failed for multiple reasons, including that the First Amendment does not protect obscenity, especially in the context of schools. Furthermore, to the extent that there is a question of speech, Jackson argued, this case involves government speech. And on the issue of whether the required vendor ratings represent “compelled speech” for the booksellers, Jackson argued that there is “no reason to believe” that the public would understand the book ratings to be "the speech of plaintiffs” because the law does not require the ratings to appear on any products or on the vendors’ own websites and storefronts and because the vendors remain free to “disavow” the ratings they may be forced to accept.
In addition, vendors can simply choose not to sell to public schools, Jackson argued. “[HB 900] does not coerce plaintiffs to assign a rating with which they disagree, and even if it does, we have not gotten to that point now,” she said. “But even if this is speech that falls under the First Amendment, and even if it's compelled speech, there are exceptions for that. And those exceptions apply here.”
“Am I correct that if a vendor categorizes even one book incorrectly in the view of the [state] that vendor could be barred from selling books altogether to Texas schools?” Judge Willett then asked.
“There would be several steps that would have to occur before that would take place, your honor, but that could take place,” Jackson conceded. “It has not yet today. And plaintiffs are asking this court to affirm an injunction against the defendants for conduct the defendants are not currently doing. Again, this goes back to the primary issue before the court, which is jurisdictional. These claims are not ripe.”
The Booksellers
In her presentation, a well-prepared Prather began by rejecting the state’s contentions that the case was not ripe, citing the plain language of the legislation. “Under the statute…booksellers are prohibited from selling any book to Texas schools until they rate all books that have been previously sold to the school districts. So this isn't about some future reading lists,” she told the court. “This is about a prohibition at this moment in time against selling any books to Texas schools if they have not rated all previous books sold.”
Furthermore, on the questions of standing and ripeness, Prather noted that well-established precedent holds that when a plaintiff is the object of a regulation—as booksellers very clearly are with this law—legal challenges are ripe the moment the regulation is passed. “Really, the court need look no further on either of these issues,” Prather told the court, swiftly dispatching with the state's main argument, and pointing to an additional source of support: The state's own (and only) amicus, Texas State Rep. Jared Patterson, who authored the law, and who outright rejected the state’s technical arguments in his amicus brief.
Prather also disputed the state’s contention that the public would not associate booksellers with the ratings they would be required to carry out. “Make no mistake these ratings are associated with the booksellers under the plain language of the statute,” she noted, pointing out that the law requires the state education authority to post the vendor ratings online. “This case is about booksellers being compelled to speak against their will and being forced to apply imprecise standards to promote the state's preferred message,” Prather told the court.
“Putting this law aside, broadly speaking, states can limit student access to sexual content? Right?” judge Willett then asked.
“We are not disputing the state's ability to regulate curriculum or obscene speech or to constitutionally restrict sexually explicit material and school libraries,” Prather responded, going on to explain how legislators did not adopt the Supreme Court’s test for obscenity as outlined in the landmark Miller v. California case in HB 900, but instead, “cherry picked” definitions penal code provisions dealing with child pornography.
If the law just said vendors can't sell sexually explicit material to school districts, with no ratings requirement, "would that be constitutional?” Willett then asked.
“Your Honor, again, I think it depends on how ‘sexually explicit’ is defined,” Prather replied. “And, unfortunately, in this statute, it is unconstitutionally vague.” Prather then offered a detailed explanation of the “impossible” burdens placed on booksellers by the law—which include exorbitant, non-recoupable costs; the inability for booksellers to know which books are in active use or part of curriculums across the state; and vague definitions that involve undefined community standards applied statewide, and no differentiation by age despite the law covering kindergarten to high school—burdens the district court in enjoining the law held were “so numerous and onerous” as to call into question whether “any third party” could possibly comply.
“It's basically a race to the bottom,” Prather concluded. “Nobody wants to get blacklisted. No author wants to be tarred by a bad rating. And what's going to result is the public at large gets harmed in addition to the harm that's being bestowed upon these booksellers. Classics won't reach student. And books about uncomfortable truths that young adults need to be made aware of.”
Although the court has the case on an expedited schedule, it is unclear when a ruling on the merits may come. It is also unclear if if the court might choose to at least lift the administrative stay, which was not issued on the merits, now that the case has been fully briefed, and allow the lower court's injunction blocking the law to take effect pending a decision on the merits.
The case was heard by judges Jacques L. Wiener Jr. (a George H.W. Bush appointee), Don Willett (a Trump appointee), and Dana Douglas, (a Biden appointee).
The full hearing is available here.
