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In a victory for school libraries and the vendors who sell them books, a Texas law that would have turned booksellers into censors has once again been held unconstitutional by a federal court. 

On Wednesday, the U.S. Court of Appeals for the Fifth Circuit upheld a lower district court ruling blocking enforcement of Texas’ , which would have required vendors who sell books to school libraries to give each book a rating based on “sexually relevant” or “sexually explicit” content, which ��ݮ��ƵAPP���� criticized in a blog post back in December. The Fifth Circuit rejected the state’s claim that forcing private booksellers to echo the state’s views on literature is “government speech,” and held that the law compelled the booksellers to speak. And that was enough to hold READER violates the Constitution, handing an important victory to the plaintiffs, which include a coalition of Texas booksellers, the Association of American Publishers, the Authors Guild, the American Booksellers Association, and the Comic Book Legal Defense Fund.

In its appeal of the district court’s preliminary injunction, Texas claimed that the law would not violate the plaintiffs’ First Amendment rights, but in his opinion for the Fifth Circuit, Judge Don Willett disagreed, concluding the plaintiffs have a First Amendment interest in selling books:

Plaintiffs have an interest in selling books without being coerced to speak the State’s preferred message — the ratings. The State’s position is that READER does not implicate Plaintiffs’ First Amendment rights at all, but . . . we are unpersuaded.

Judge Willett concluded that the book rating system constituted compelled speech and was therefore in violation of the First Amendment. Quoting the 1976 Supreme Court decision in Wooley v. Maynard, Judge Willett wrote, “[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” 

Judge Willett added that the plaintiffs in this case “wish to stay silent and not express any public view on the appropriateness of various books.” However, because of regulations in READER, they must “either speak as the State demands” or “suffer the consequences.”

The state cannot compel booksellers to adopt a mandatory rating system based on vague, complicated factors under the threat of financial consequences — all in an effort to ban particular, disfavored viewpoints.

READER suffers from even more problems. As ��ݮ��ƵAPP���� wrote last year, the regulations in READER are not only “Kafkaesque,” they are flatly unconstitutional, and we said as much in an amicus brief to the Fifth Circuit, filed with the Cato Institute and the National Coalition Against Censorship:

READER’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.

[ . . . ]

READER embodies the arbitrary and standardless exercise of legislative power that the Constitution forbids, especially when it chills protected expression.

For example, READER imposes a confusing multi-step balancing test to determine which books are sexually explicit, and if a rating by a bookseller failed to align with subjective whims of powerful state officials at the Texas Education Agency, then that vendor could have faced financial penalties or be banned entirely from selling books to public school libraries.

The state cannot compel booksellers to adopt a mandatory rating system based on vague, complicated factors under the threat of financial consequences — all in an effort to ban particular, disfavored viewpoints.

Texas law turns booksellers into censors

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'READER Act' forces booksellers to blacklist books based on vague standards. ��ݮ��ƵAPP���� is asking the Fifth Circuit to put a stop to it.

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FIRE is pleased to see the Fifth Circuit affirm the preliminary injunction issued on Sept. 18 by the U.S. District Court for the Western District of Texas, Austin Division, in favor of the plaintiffs, which include a coalition of Texas booksellers, the Association of American Publishers, the Authors Guild, the American Booksellers Association, and the Comic Book Legal Defense Fund. 

The plaintiffs praised the ruling in a , calling the decision a “historic” victory that will let “Texas parents make decisions for their own children without government interference or control. This is a good day for bookstores, readers, and free expression.”

FIRE agrees, and we congratulate the plaintiffs and their attorneys, Laura Prather and her colleagues at Haynes Boone, in their hard-fought victory. ��ݮ��ƵAPP���� also thanks Joshua Bennett from Carter Arnett PLLC for his assistance with our amicus brief.