After nearly three weeks of waiting, federal judge Alan D. Albright delivered a major victory for freedom to read advocates, issuing a substantive 59-page written opinion and order officially blocking Texas’s controversial book rating law, HB 900, from taking effect. The decision comes after Albright orally enjoined the law at an August 31 hearing and signaled his intent to block the law in its entirety.
Signed by Texas governor Greg Abbott on June 12, HB 900 would have required book vendors to review and rate books for sexual content under a vaguely articulated standard as a condition of doing business with Texas public schools. Under the law, books rated “sexually explicit” (if the book includes material deemed “patently offensive” by unspecified community standards) would be banned from Texas schools. Books rated “sexually relevant” (books with any representation of sexual conduct) would have required written parental permission for students to access them. Furthermore, the law would have given the state the ultimate power to change the rating on any book, and would have forced vendors to accept the state's designated rating as their own, or be barred from selling to Texas public schools.
In suing to block the law, 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) argued that the law is blatantly unconstitutional, and would impose an untenable burden on vendors and publishers. After two hearings held in August, Albright agreed in an opinion handed down September 18.
“The Court does not dispute that the state has a strong interest in what children are able to learn and access in schools. And the Court surely agrees that children should be protected from obscene content in the school setting,” Albright concluded. “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 defending the law, Texas attorneys had moved to dismiss the suit, arguing that the plaintiffs lacked standing to challenge the law, and that the state has the right to regulate vendors who wish to do business with Texas public schools—essentially asserting that rating books would simply be part of the cost of doing business in Texas. Albright demolished those arguments in his opinion, and harshly criticized the ill-conceived law in denying the motion to dismiss.
At one point, Albright observed that the burden placed on vendors by the law are “so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.” And he called out state attorneys for their inability to answer basic questions over the course of two hearings. “Generally, the government was confused and unaware of how the law would actually function in practice,” Albright observed, citing “approximately 40 instances during the August 18th hearing ('Hearing 1') where the government either did not know how the law would function or did not have an answer as to what the effects of certain provisions were.”
Like many critics of the law, Albright was highly critical of the state’s attempt to outsource book ratings to private vendors (under impermissibly vague standards, and at a considerable, non-recoupable cost) while retaining the unchecked power to change a book's rating and force vendors to adopt it as their own—effectively imposing a state standard. Albright called this a “textbook” example of compelled speech.
“Here, the government has failed to articulate any legitimate reason for requiring the vendors speak at all,” Albright concluded. “The government has the power to do the contextual ratings for the books itself. The government has the power to restrict the ability of its school district as to which books it may purchase. The exercise of these powers must, of course, comply with the requirements of the constitution, but these are powers that should be exercised by the state directly. Not by compelling third parties to perform it or risk losing any opportunity to engage in commerce with the school districts.”
Meanwhile, despite initially saying he would enjoin the law “in its entirety,” at press time it remains unclear whether the judge will allow a part of the law to take effect—specifically, a provision that requires state agencies to develop voluntary standards for “school library services” by January 1, 2024.
In a September 1 motion, the state argued that the provision should be allowed to take effect because it does not directly impact the plaintiffs. But at a September 11 conference (and in a filing last week), the plaintiffs insisted the judge should follow through and block the law in its entirety, arguing that allowing the state to develop new standards within the scope of this law would result in “unconstitutional definitions and unconstitutional procedures.” A status conference is set for this afternoon, September 19.
The ruling in Texas—delivered by a Trump-appointed judge—is the most high-profile victory yet in a slew of lawsuits pushing back on new state laws that take aim at the freedom to read under the guise of "parental rights."
On July 29, a federal judge in Arkansas blocked two key provisions of a recently passed Arkansas law, known as Act 372, that would have exposed librarians and booksellers to criminal liability for making allegedly inappropriate or “harmful” books accessible to minors in the state.
Suits are also pending in Missouri, challenging Senate Bill 775, a school library obscenity law that opponents say forces librarians to censor their collections under the "threat of arbitrary enforcement of imprisonment or fines." And in May, PEN America and Penguin Random House joined forces with a group of authors and parents to sue school administrators in Escambia County, Fla, over the removal of allegedly inappropriate books from school libraries.
State officials in Texas have already filed notice that they will appeal.
In a joint statement, the plaintiffs praised the decision. "We thank the court for its clear and decisive ruling and applaud its finding that this law violates the First Amendment, imposes impossibly onerous conditions on booksellers, and ignores the vastly different community standards across local communities," the statement reads. "Today is a great day for Texas booksellers, publishers, readers, and communities."