In an appeal brief filed with the U.S. Court of Appeals for the Fifth Circuit, Texas state attorneys argue that HB 900—the state’s controversial book rating law—is constitutional, and that district judge Alan D. Albright made “substantive errors” in issuing an August 31 preliminary injunction blocking the law.
In the October 30 filing, Texas attorneys told the Fifth Circuit that HB 900 simply aims to establish standards that will “protect children from sexually explicit material at school” and to help parents understand “what books the State is purchasing for public schools with public money.” As for the law’s most controversial provision—forcing booksellers and vendors to rate books for sexual content as a condition of doing business with Texas public schools—the brief attempts to brush aside the plaintiffs’ constitutional arguments and compares the ratings to food labels.
“Providing such information does not require a book vendor to pass judgment or express a view on the validity of the [state’s library materials] standard or a book’s propriety to be shown to children,” the brief states. “Rather, like a nutrition label’s food-allergen warning, the rating tells the buyer what they are receiving.”
Signed by Texas governor Greg Abbott on June 12, HB 900 requires book vendors—at their own considerable expense—to review and rate books, both new and previously sold, for sexual content under a vaguely articulated standard. Under the law, books rated “sexually explicit” (if the book includes material that would be 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 ultimate power to change the rating on any book, and to bar vendors that do not accept the state's ratings as their own from selling to Texas schools, essentially imposing a state standard.
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. And after two hearings held in August, Albright agreed, issuing an unequivocal 59-page written opinion and order blocking the law, calling it “a web of unconstitutionally vague requirements.”
In a legal twist, however, a motions panel of the Fifth Circuit on September 25 issued an administrative stay on Albright’s injunction—which is not based on the merits of the case—meaning that the law, despite being found unconstitutional, is now in effect pending further action by the appeals court.
Notably, in seeking to overturn Albright’s injunction, the state’s appeal arguments are virtually identical to the arguments Albright rejected at the district court level. First, the state argues that the plaintiffs’ claims are “unripe” because the new collection development standards mandated by the law have not yet been implemented. Second, the state argues that the plaintiffs lack standing because they have not established a concrete injury from the law. And third, the state argues that the plaintiffs’ claims against the state are barred by the doctrine of state sovereign immunity.
As to the substantive constitutional questions—primarily, whether the law violates the free speech clause of the First Amendment by forcing booksellers to adopt state-approved ratings for every book sold to Texas public schools—the state argues the that the court doesn’t even need to reach these questions because the legal deficiencies of the case require its dismissal. However, on the constitutional merits, the state insists that Albright also got the case wrong, because the state has broad powers to regulate speech made available to children.
“Plaintiffs are…not entitled to enjoin a state law aimed at protecting children based on a putative First Amendment right to distribute sexually explicit materials to school children without any warning of their contents—let alone to do so at public expense,” the brief argues. “In sum, even if the district court had jurisdiction (and it did not), it erred as a matter of law in granting the preliminary injunction because Plaintiffs have no probability of success in proving that [HB 900] implicates the First Amendment—let alone that [the law] violates any applicable constitutional standard of review.”
In his September 18 written opinion, Albright agreed that the "state has a strong interest in what children are able to learn and access in schools," but held that with HB 900, the state is "abdicating its responsibility to protect children" by forcing "private individuals and corporations into compliance with an unconstitutional law that violates the First Amendment."
The Texas appeal also appears to depend heavily on Albright blowing some fairly straightforward legal questions. As to whether the plaintiffs' claims are ripe, Albright acknowledged that the first book ratings are not due until April 1, 2024, but held that "there can be no question" that, to meet that deadline, the plaintiffs "must begin the costly review and rating process much sooner, most likely immediately." On the question of an injury sufficient to confer standing, Albright found "substantial evidence" that vendors cannot comply with the law's vague and overbroad provisions. And on the question of state sovereign immunity, he found that the Ex parte Young exception easily applies.
At one point in his written opinion, Albright observed that the burdens placed on vendors by HB 900 are “so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.” And he called the state’s attempt to outsource book ratings to private vendors (under impermissibly vague standards, and at a considerable, nonrecoupable cost) a “textbook” example of compelled speech. “The government has the power to do the contextual ratings for the books itself," he concluded, not by "compelling third parties to perform it or risk losing any opportunity to engage in commerce with the school districts.”
According to a scheduling order, the plaintiffs' brief is due on November 13, while amicus briefs supporting the state are due November 6, and amicus briefs supporting the plaintiffs are due November 17. The state's final reply brief is then due on November 20, with oral argument currently set for November 29.