Texas book ban law is likely unconstitutional, appeals court rules

A section of a Texas law requiring booksellers to review volumes for sexual content before selling them to schools is likely unconstitutional and can’t be enforced while a lawsuit against it proceeds, a federal appeals court ruled Wednesday.

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The Texas Restricting Explicit and Adult-Designated Educational Resources Act (READER) Act, passed last year, requires that vendors rate books for “sexually explicit” or “sexually relevant” material and provide these ratings annually to the Texas Education Agency, which oversees public schools. Any books in the “sexually explicit” category may not be sold to schools, and if any of the books are already in school libraries, they must be removed. Books that have “sexually relevant” content may not be checked out of school libraries without written parental consent. The TEA can force vendors to change ratings it deems incorrect. The first set of ratings was due this April.

“Some school libraries have books with sexually explicit and vulgar materials,” Republican Gov. Greg Abbott said when signing the bill last June. “I’m signing a law that gets that trash out of our schools.”

Civil liberties groups immediately objected to the legislation. Two Texas bookstores, the American Booksellers Association, the Association of American Publishers, the Authors Guild, and the Comic Book Legal Defense Fund sued over this portion of the law; the READER Act has other sections, mostly affecting government agencies, but they are not at issue in this suit. Last fall, U.S. District Judge Alan Albright ruled that the plaintiffs are likely to succeed on their claim that this section of the law is unconstitutional, and he issued a preliminary injunction that blocks enforcement of it while the suit is heard.

Texas officials appealed to the U.S. Court of Appeals for the Fifth Circuit, and Wednesday a three-judge panel of the court affirmed the injunction. The plaintiffs will probably succeed on their claim that the act violates the free speech guarantee of the First Amendment to the U.S. Constitution, Judge Don Willett wrote in the ruling.

“The State’s position is that READER does not implicate Plaintiffs’ First Amendment rights at all, but … we are unpersuaded,” he wrote. The plaintiffs “have also shown that they will suffer irreparable economic injury” if the law goes into effect, he continued.

The plaintiffs issued this joint statement in response to the ruling: “We are grateful for the Fifth Circuit Court of Appeals’ decisive action in striking down this unconstitutional law. With this historic decision the court has moved decisively to ensure the constitutionally protected speech of authors, booksellers, publishers, and readers, and prevent the state government from unlawfully compelling speech on the part of private citizens. The court’s decision also shields Texas businesses from the imposition of impossibly onerous conditions, protects the basic constitutional rights of the plaintiffs, and lets Texas parents make decisions for their own children without government interference or control. This is a good day for bookstores, readers, and free expression.”