It looks like it might have…gone well? I am cautiously hopeful.
Federal appellate judges Wednesday questioned a new Texas law requiring book sellers to rate the explicitness and relevance of sexual references in materials they sell to schools, though it was not clear if the court would allow the regulations to stand.
The 5th U.S. Circuit Court of Appeals judges’ inquiries centered on House Bill 900’s definitions of sexual content and community standards. They came during a hearing in a legal challenge brought by book vendors who argue the law is unconstitutionally broad and vague.
The law seeks to keep so-called sexually explicit books off library shelves in the state’s more than 1,200 school systems by calling for the creation of new library standards. It requires school library vendors to assign ratings to books and materials based on the presence of sex depictions or references. And it compels vendors to recall materials already in circulation that are now deemed sexually explicit.
A federal judge barred Texas from enforcing the law in late August. But a panel of 5th Circuit judges blocked that order and the full appellate court, one of the most conservative in the nation, is now considering the overall legal challenge. It is not clear when the appellate court will issue a ruling after Wednesday’s hearing.
Laura Lee Prather, a lawyer for the plaintiffs, told judges Wednesday that the law would compel book sellers to “apply imprecise standards to promote the state’s preferred message.”
Vendors who participate will be cornered into conforming with the state’s view, plaintiffs argue.
“The book sellers here are not asserting the right to have books reach library shelves — they’re asserting the right to be free from compelled speech and the right to offer and distribute books without being forced to decipher incomprehensible and vague standards,” Prather said. “Unless the injunction is continued and the administrative stay is lifted, irreparable injury in the form of lost First Amendment rights will ensue. … Even if HB 900 is ultimately overturned, this bell cannot be unrung.”
“Both sexually explicit, sexually relevant — they talk about material that describes, depicts or portrays sexual conduct. How explicit must a reference be in order to qualify as sexual conduct?” a judge asked the state.
“Your honor, that is something that is likely going to be developed,” [state attorney Kateland] Jackson responded. “Again, this law has not had a chance to be developed or implemented yet.”
But vendors face “irreversible” financial, reputational and constitutional damage even as the case shuffles through the courts, Prather said.
The new law will require vendors — some of whom are based in other states — to “somehow opine about what the current community standards are in this state,” Prather said.
Referencing those remarks, a judge asked the state before the end of Wednesday’s hearing “which community’s standards are supposed to govern how a vendor categorizes books?”
“We’re talking about a bill with border-to-border applications, statewide impact. So how do you define the appropriate community?” the judge asked. “Might it be the case ever that what passes community standards muster in El Paso might fail it in Beaumont?”
See here and here for some background. This law is so broad and vague – “we’ll figure it out once we start enforcing it” sure doesn’t sound encouraging to me – that it’s hard for me to see how anyone with even a basic understanding of the First Amendment could find it anything but an abomination. Of course, we are talking about the Fifth Circuit, so adjust your assumptions accordingly. I still feel like maybe the good guys have the edge, though. Gotta be careful about getting my hopes up. Also as a reminder we really need to go hard after the d-bag author of HB900, Jared Patterson, and his henchperson in the Senate, Angela Paxton. People have got to start losing elections over stuff like this, or it will never stop.