Fifth Circuit upholds injunction in book rating lawsuit

Good news.

The Fifth Circuit Court of Appeals on Wednesday blocked a new Texas law that requires bookstores to rate books for sexual content and prohibits any deemed “sexually explicit” from the state’s public schools.

A panel of three judges sided with Texas bookstores and national publishing groups that had argued the bill violated their freedom of speech and would be harmful to their businesses.

The state says the rating system is based on existing ones for movies or video games, and that it doesn’t violate the Constitution because the ratings are “purely factual and uncontroversial,” or similar to a “nutrition label.”

“Balancing a myriad of factors that depend on community standards is anything but the mere disclosure of factual information. And it has already proven controversial,” the court wrote in its decision.

The court went on to say that the law constituted “compelled speech” and that the bookstores and publishers were “irreparable” financial harm, including the possibility of Houston bookseller Blue Willow Bookshop going out of business as a result.

The ruling was on a preliminary injunction, meaning the decision goes into effect temporarily until the full case can be argued, but the court suggested the bookstores likely had a winning argument.

See here and here for some background, and here for a copy of the opinion, written by Trump appointee Justice Don Willett; two of the three justices on the panel were appointed by Republicans. The Statesman provides some further detail:

Several book sellers — including BookPeople in Austin — and library associations sued several state agencies in July, arguing that HB 900 is overburdensome and costly to businesses. The temporary halt will allow a hearing in which a judge will decide the law’s constitutionality to proceed. By granting the hearing, the appeals court affirmed its belief that the book sellers’ case is likely to succeed.

A U.S. district judge in September granted the book sellers’ appeal to halt the implementation of the law, a ruling the Texas Education Agency almost immediately appealed.

Under the law, book sellers would have had to send their ratings to the Texas Education Agency by April 1 to comply, a task many argued wasn’t feasible.

The plaintiffs had also argued that the law violated their First Amendment free speech rights, since the state can disagree with and edit a vendor’s rating.

The court rejected several arguments the state made objecting to the free speech claims, including that the task of rating books is simply ministerial, instead of an expression of opinion.

“Here, the statute requires vendors to undertake a fact-intensive process of weighing and balancing factors to rate library material,” the court wrote in its decision. “This process is highly discretionary and is neither precise nor certain.”

The ratings have already proved controversial, the court wrote.

“The statute requires vendors to undertake contextual analyses, weighing and balancing many factors to determine a rating for each book,” the court wrote. “Balancing a myriad of factors that depend on community standards is anything but the mere disclosure of factual information.”


Under the law — authored by Rep. Jared Patterson, R-Frisco — vendors selling books to school districts would have to rate content that is sexually relevant or sexually explicit. HB 900 also states that schools are prohibited from buying books from vendors that don’t use the rating system and are not allowed to purchase sexually explicit books.

The decision was disappointing to Patterson, he said in a statement.

“Book vendors have an obligation to be aware of the content they are distributing, especially if that content is sexually explicit material into the hands of school children,” Patterson said.

The ruling doesn’t affect the state’s library standards, which ban sexually explicit books from school libraries, Patterson said. The State Board of Education adopted those new standards last month.

In addition to upholding the lower court’s decision, the appeals court dismissed from the case the State Board of Education and the Texas State Library and Archives Commission, two agencies the plaintiffs had included in the lawsuit.

Again, pretty good. The library standards part of the bill were not in the original temporary restraining order. The remaining defendant is TEA Commissioner Mike Morath, which makes sense since this is about the enforcement of standards for books being sold to and held by school libraries. I do expect the state to appeal this to SCOTUS, but with any luck they will have better things to do for now. The matter may come up again after the ruling on the merits down the line. Reuters, KXAN, and Publishing Perspectives have more.

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3 Responses to Fifth Circuit upholds injunction in book rating lawsuit

  1. David Fagan says:

    If it is burdensome to a business, don’t sell books to public schools.

  2. Frederick says:

    Fuck Yeah.

    David, you are a verbal contortionist

  3. C.L. says:

    Time to just start burning them so we no longer to be afraid of what’s in them.

    That’s how we stop the polluting of our child’s minds ! Ammirite or ammirite ?

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