With oral arguments set for November 29, some 17 organizations and individuals have teamed up to file six separate amicus briefs urging the U.S. Court of Appeals for the Fifth Circuit to uphold a lower court decision striking key provisions of HB 900, Texas’s controversial book rating law.
Among the briefs and arguments filed on November 17:
The Freedom to Read Foundation and the American Association of School Librarians: "Appellants argue that HB 900 is simply an innocuous mechanism to protect school children from 'sexually explicit materials.' But as the district court recognized, HB 900 goes much further, implicating potentially 'any sexual-related topic.' The statute offers no 'bright line[s]' to guide vendors in labeling books—a judgment call for which they likely have no training," the brief states. "HB 900 will undoubtedly result in denuded school library collections, stripped of materials that bear no resemblance to obscene or even 'sexually explicit' materials. Because HB 900 unconstitutionally burdens the First Amendment rights of both book vendors and school students, the Court should affirm the district court’s injunction against the statute."
The Association of University Presses; Barnes & Noble; the Educational Book and Media Association; Freedom to Learn Advocates; Half Price Books, Records, Magazines; the Independent Book Publishers Association; Penguin Random House; and Sourcebooks: "First, the mandatory ratings are classic 'compelled speech' in violation of the First Amendment. As the District Court held, [HB 900] impermissibly compels Amici to 'create speech that [we do] not wish to make, and in addition, in which [we do] not agree with,' in violation of the First Amendment. Second, the Act’s provisions restricting the Plaintiffs’ dissemination of 'sexually relevant' and 'sexually explicit' books–many of which have already been chosen by Texas school librarians as educationally suitable for their schools–violates the First Amendment under several established doctrines," the brief states. "Likewise, lacking a single case precedent, Appellants claim that books should be treated as commercial speech, not core protected speech, merely because they are sold—in contradiction of centuries of caselaw. In sum, the District Court’s sound ruling should be affirmed."
The Foundation for Individual Rights and Expression, the Cato Institute, and the National Coalition Against Censorship: "[HB 900's] failure to provide booksellers and public employees clear standards and fair notice of its reach suggests a more speech- chilling purpose: censoring content and views that Texas finds unworthy," the brief states. "[HB 900] embodies the arbitrary and standardless exercise of legislative power that the Constitution forbids, especially when it chills protected expression. But even if [HB 900] were capable of any coherent construction, the statute is a content-based prohibition that compels speech and fails strict scrutiny. On all counts, [HB 900] fails the Constitution, and the Court should affirm the preliminary injunction to protect free expression."
PEN America: "In requiring vendors to review every publication offered to public schools and apply censorial and stigmatizing labels based on their understanding of extraordinarily vague and overbroad criteria, HB 900 suppresses writers’ speech and imposes a pernicious scheme of delegated censorship that violates fundamental free speech values. HB 900, if implemented, will impede writers’ ability to reach their intended audiences and potentially chill their expression in an effort to escape vendors stigmatizing their work with labels such as 'sexually explicit' and 'sexually relevant,'" the brief argues. "The bill evinces a facile understanding of literature and a failure to acknowledge its value as a recognized First Amendment interest. Courts have held time and again that the government has no place restricting and evaluating art. HB 900 does just that."
The ACLU of Texas, University of Texas law professor Lawrence Sager, and Southern Methodist University law professor Dale Carpenter: "The district court was right to enjoin the law’s operation: it is void for vagueness; it compels unwanted speech; and it serves as an unconstitutional prior restraint," the brief states. "On its face, the law thrusts the Booksellers into an impossible predicament. If they try to comply with the law, they will endure further violations of their fundamental rights while incurring financially ruinous expenses endeavoring to judge thousands of books against vague standards. If they refuse to comply, they will be forbidden from selling books to Texas schools going forward, costing them vital customers and revenues they have enjoyed and relied upon for decades. Either way, the Act inflicts concrete injuries on Booksellers that are ripe for this Court’s consideration."
The Texas Speech Communication Association: "The Texas Speech Communication Association believes that enjoining enforcement of the READER Act is in the public interest because classroom activities will otherwise be chilled by teachers’ and administrators’ uncertainty as to Act’s application. This chilling effect has the potential to exacerbate problems with teacher attrition and retention in public schools. The Act also interferes with students’ ability to learn and receive information. In light of these concerns, together with those expressed in the Appellees’ brief, the district court’s preliminary injunction should be affirmed."
The State's Argument
The amicus briefs come after Texas state attorneys filed their appeal brief on October 30 seeking to overturn judge Alan D. Albright's August 31 preliminary injunction blocking the law. In its brief, the state relies largely on technical arguments to overturn the injunction, insisting that while the state has broad powers to regulate speech made available to children, the appeals court doesn’t need to address the First Amendment questions surrounding the case, arguing that the plaintiffs' "lack of standing" and "unripe" case necessitates the case's dismissal.
In their November 13 appeal filing, attorneys for 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) insist that district court judge Alan D. Albright got it right in his unequivocal 59-page written opinion and order blocking the law, calling it a "a web of unconstitutionally vague requirements."
Meanwhile, just a single amicus brief was filed in support of the state, filed by Texas state rep. Jared Patterson, the author of the law. And in a twist, Patterson's brief actually refutes two of the state’s key legal arguments.
"Contrary to the position of the state in this case, Amicus does not dispute the vendors’ standing to challenge the provisions of [HB 900] that directly regulate them. To the contrary, this Court has been clear that a party who is the object of a regulation has standing to challenge it—full stop," Patterson's brief argues. "Nor does Amicus argue that a challenge to the provisions that directly regulate vendors would not be ripe. This Court has been clear that facial claims are ripe the moment the regulation is passed."
Instead, Patterson's amicus brief appears focuses on having the court leave in place the HB 900's broad definitions for sexual content.
"The court held that the use of 'patently offensive' was unconstitutionally vague, but did not enjoin the rest of the definition. Excising the vague term 'patently offensive' from the definition, the statute is now limited to 'sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.' No one can reasonably dispute the clarity of those term," Patterson argues. "As such, regardless of whether the vendors have standing to challenge the portions of [HB 900] that regulate private vendors, they lack standing to challenge the core provisions of [the law]. There is no stand-alone right to have pornographic materials purchased by public schools."
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.
According to a scheduling order, the state's final reply brief is due on November 20, with oral argument is currently set for November 29.