The U.S. Court of Appeals for the Fifth Circuit will let Texas's controversial new book rating law, HB 900, take effect while an "expedited" appeals process plays out—despite a district court finding the law to be “a web of unconstitutionally vague requirements.”
In a two-line decision issued on October 5, the Fifth Circuit said it would not hear the state's emergency motion for a stay separately and will instead carry the motion to be heard with the state's challenge of judge Alan D. Albright's preliminary injunction on the merits. The court also ordered the appeal to be "expedited to the next available oral argument panel."
But the appeals court also declined to lift an administrative stay placed on Albright's order—which was issued by the appeals court without consideration of the merits of the case—a move that effectively gives the state its stay and allows the law to take effect indefinitely pending a resolution of the appeal or further action by the court.
At press time, a new schedule for the case had not been made public. It remains unclear when the appeals court will hear oral argument, or how long it might take the court to rule on the appeal once it does. It's worth noting that the Fifth Circuit has yet to rule on an appeal of an injunction in another prominent Texas book banning case, Little v. Llano County, despite hearing oral argument four months ago.
Signed by Texas governor Greg Abbott on June 12, HB 900 requires book vendors, at their own expense, to review and rate books for sexual content under a vaguely articulated standard as a condition of doing business with Texas public schools. The law includes both the thousands of books previously sold to schools and any new books. Furthermore, the law gives the state the unchecked power to change the rating on any book, which vendors would then have to accept as their own or be barred from doing business with Texas public schools.
Administrative stays are commonly used to maintain the status quo until an appellate court can more fully consider arguments for emergency relief. And while it makes some sense that the court in this case would want to jump right to the state's appeal of Albright's order—after all, the state's arguments for a stay of the injunction are basically the same as its arguments for reversing it—allowing the administrative stay to remain in place effectively moots the emergency relief the plaintiffs had sought and won from the district court on merit, and puts booksellers in the state in a precarious position.
“Staying the preliminary injunction would radically upend the status quo,” the plaintiffs (two Texas booksellers together with the American Booksellers Association, the Association of American Publishers, the Authors Guild, and the Comic Book Legal Defense Fund), argued in an October 2 brief.
“Plaintiffs would be immediately prohibited from selling books to public schools because they would be unable to review and rate every book ever sold to a public school, as required," the brief argues. "To lift the prohibition, Plaintiffs would need to undertake the painstaking process of reviewing and rating hundreds of thousands of books, which would significantly disturb Plaintiffs’ businesses and cause economic injury, the reallocation of significant resources, and the potential closure of independent booksellers throughout Texas. A stay would also require public schools to change the way they store and purchase books and impact public school students’ access to books. Under the status quo as it exists now (and has existed for 170 years)—without Rating Provisions—none of these impingements are present.”
The appeal drama comes after judge Albright issued a substantive 59-page written opinion and order on September 18, officially blocking HB 900 from taking effect. The judge’s written decision came after he had orally enjoined the law at an August 31 hearing, following two previous hearings on the matter, and had denied the state's request for a stay.
In his written opinion, Albright observed that the burden placed on book vendors by the law are “so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.”