Days after setting an expedited schedule to hear Texas's appeal of federal judge Alan D. Albright's decision to enjoin HB 900, Texas's controversial book rating law, the U.S. Court of Appeals for the Fifth Circuit this week set a new schedule delaying oral argument by three weeks.
According to a new scheduling order, the court will now hear oral arguments on November 29, rather than November 8. The state's appeal brief is now due on October 30; Amicus briefs supporting the state are due November 6; the plaintiffs' brief is due November 13; amicus briefs supporting the plaintiffs are due November 17; and the state's final reply brief is due on November 20.
As PW reported, the delay comes after the court granted the plaintiffs' motion for a continuance, citing a conflict by lead attorney Laura Prather.
In addition, the appeals court again ordered that an administrative stay blocking Albright's injunction from taking effect (which was issued without consideration of the merits of the case) remain in place. That move has allowed the law to take effect despite being found unconstitutional by the district court, leaving Texas booksellers, as well as schools and libraries in the state, in a precarious place.
An article co-published this week by the Texas Tribune and ProPublica suggested that the law is already having a negative impact on what's available in Texas school libraries.
"As a new Texas law further restricting what books students can check out of school libraries takes effect, local bans are gaining steam in districts across the state—in some cases going in startling directions," the report notes, pointing out that in the Houston suburb of Katy, "school officials recently bought $93,000 worth of new library books and promptly put them in storage so an internal committee could review them. The district then banned 14 titles (bringing its total since 2021 to 30), including popular books by Dr. Seuss and Judy Blume, as well as No, David! an award-winning children’s book featuring a mischievous cartoon character who at one point jumps out of a bathtub, exposing a cartoon backside."
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) had sought quick action to stop the law from taking effect on September 1 as scheduled, arguing that the blatantly unconstitutional law would impose an untenable burden on vendors and publishers. And after two hearings, Albright agreed, orally enjoining the law at an August 31 hearing, then issuing a substantive 59-page written opinion and order in which he called HB 900 “a web of unconstitutionally vague requirements” and said its burdens are “so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.”
The Fifth Circuit's administrative stay effectively moots the emergency relief the plaintiffs had sought and won from the district court, however. And while the court could conceivably act quickly after hearing oral arguments, the prospect of the law remaining in effect well into 2024 (and perhaps longer) now looms large. For example, at press time the court has yet to rule on an appeal of an injunction in another prominent Texas book banning case, Little v. Llano County, despite hearing oral arguments more than four months ago.