In a major victory for freedom to read advocates, the Fifth Circuit of the U.S. Court of Appeals on January 17 upheld a lower court decision to block key provisions of HB 900, Texas’s controversial book rating law, finding that the law likely violated First Amendment protections against compelled speech.
In an unequivocal 36-page decision, a three-judge panel of the Fifth Circuit—viewed by many as the most conservative court in the nation—easily dispatched with the state’s key legal arguments (that the plaintiffs lacked standing, that the case was not ripe, and that the plaintiffs’ claims were barred by sovereign immunity) and made it only to the first of the plaintiffs’ multiple constitutional claims—that the mandatory book ratings at the heart of the law represent compelled speech.
“We start and end with the compelled-speech claim because we conclude that Plaintiffs are likely to succeed on the merits of that claim,” the court ruled. “Accordingly, we need not address whether they are also likely to succeed on their claims that [HB 900] is a prior restraint or unconstitutionally vague.”
Specifically, the court rejected the state’s argument that the mandatory book ratings are “government speech” and thus immune from First Amendment claims, and dismissed claims that the book ratings would merely be informational and uncontroversial, like nutrition labels, movie ratings, or warning labels on cigarettes. “We are not persuaded by the State’s characterization of the ratings as a ‘form of consistency review’ that is a ‘purely ministerial task’ instead of an expression of the vendors’ opinion on the subject matter being rated,” the court held, noting that the law “requires vendors to undertake a fact-intensive process of weighing and balancing factors to rate library material,” which it recognized as a “highly discretionary” undertaking.
“In sum, the district court was correct that the government-speech doctrine does not apply. The ratings are the vendor’s speech, not the government’s,” the court held. “The ratings [HB 900] requires are neither factual nor uncontroversial. The statute requires vendors to undertake contextual analyses, weighing and balancing many factors to determine a rating for each book. Balancing a myriad of factors that depend on community standards is anything but the mere disclosure of factual information. And it has already proven controversial.”
Furthermore, the court also accepted arguments made by the plaintiff booksellers that the law would cause them “irreparable” economic harm. “Even if the bookstores could pass along some costs to their customers, [plaintiff bookseller] Blue Willow has alleged here that the compliance costs alone ‘threatens the very existence of [its] business.’ Recovering costs won’t resurrect Blue Willow if compliance costs put it out of business,” the court observed.
With the decision, the court remanded the case to the district court with instructions to dismiss two defendants from the case—Martha Wong, chair of the Texas State Library and Archives Commission, and Kevin Ellis, chair of the Texas State Board of Education—but affirmed Judge Alan D. Albright’s August 31 decision to block Texas Education Agency commissioner Mike Morath from enforcing the the book rating provision of the law and, crucially, denied the state’s bid to stay Albright's preliminary injunction while the appeal proceeds.
Another section of the law that mandated the creation of statewide library collection standards was not part of the appeal and remains in effect.
Viewed by many as the most high profile of a wave of book banning laws at the state level, the law was signed by Texas governor Greg Abbott on June 12. The controversial law 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 lawsuit challenging HB 900 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. In August, Judge Alan D. Albright orally enjoined HB 900 and, in September, issued a forceful 59-page written opinion and order blocking the law.
The state immediately appealed Albright's decision and, in a legal twist, a separate 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 actually allowed the law to take effect pending further action by the appeals court, despite it being found unconstitutional. With this decision, that stay is now lifted.
In a joint statement, the plaintiffs praised the decision. “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 statement reads. “This is a good day for bookstores, readers, and free expression.”
Plaintiff Charley Rejsek, CEO of Book People, said she was delighted that the court recognized the peril the law put booksellers in. “They made it very clear why they agreed with us, pointing out how it would take significant resources away from our business,” she noted. “It could have potentially put bookstores out of business, and we're ecstatic the court identified that as an issue.” Fellow plaintiff Valerie Koehler, owner of Blue Willow Bookshop agreed, saying she felt “validated,” by the decision.
Texas state rep. Jared Patterson, the author of the law, urged the state to continue its appeal. "I call on the Office of Attorney General to appeal this decision to the United States Supreme Court and in the meantime look forward on how Texas can improve vendor accountability with other legislative solutions next session," Patterson said, in a statement.
