The Texas READER Act has been tied up in the court system since its passage by the Texas legislature in 2023. The READER Act bans “sexually explicit” books from public school libraries in the state and contains two components. The first is a manual created by the Texas State Library and Archives Commission that outlines acceptable materials for those libraries, which would then be approved by the State Board of Education, a body comprised of political appointees. The second component of the law is a requirement that any book vendor selling materials to school libraries — be it a library book vendor like Ingram, a publisher like Scholastic, or an independent bookstore in one’s community — rate the content of the books they sell.
That second piece would also require those vendors to recall any previous sales of books deemed unlawful, and all vendors would need to submit their ratings to the Texas Education Agency. Those ratings wouldn’t necessarily remain as submitted, though–the state could decide whether to list those vendors as compliant with the law and whether to agree with the vendor ratings or override them with its own. In other words, the state would control what vendors school libraries could purchase materials from, based on the ratings those vendors applied to materials being sold and whether or not they agreed with those ratings.
The bill led to Book People v. Morath, a lawsuit brought by the American Booksellers Association, Texas bookstores BookPeople and Blue Willow Bookshop, the Association of American Publishers, the Authors Guild, and the Comic Book Legal Defense Fund.
Judge Albright of the US District Court for the Western District of Texas ruled this week that the second provision of the READER Act is unconstitutional. Booksellers lose their constitutionally protected speech rights when forced to apply content ratings to materials.
From the decision:
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If Texas’s aim was solely to create conditions for the State to purchase books for its public school libraries, it failed to accomplish that with READER. READER operates in a way that fully compels Plaintiffs’ speech—violating both prongs of the prohibition discussed in 303 Creative. First, READER compels Plaintiffs’ speech when they would choose to remain silent, because Plaintiffs must assign ratings even if they would not want to. Second, READER compels Plaintiffs to adopt the government’s speech because the TEA is allowed to re-rate books and publish its own rating as being attributed to Plaintiffs. Plaintiffs have no choice but to accept the government’s speech as their own.
In September 2023, Judge Albright issued a preliminary injunction in favor of the plaintiffs in the case. This week’s decision permanently grants the injunction.
Texas can appeal the decision, which would take it to the Fifth Circuit.
While this case is a significant win, particularly for vendors who make books available for purchase to schools and are not in the business of interpreting law around school library materials, there are portions of the decision that are concerning. Among them are the Judge’s comments that the state does have a right to safeguard public school students from sexually explicit material acquired with taxpayer money. As such, this ruling wouldn’t enjoin the portion of the READER Act that lays out the definitions of “sexually explicit materials.” Those definitions have already been used in additional state legislation.
From the judgment:
The biggest problem of READER stems from the State of Texas trying to compel speech and violate vendors’ First Amendment rights. Its confusing web of vague definitions and standards are one component of that, but enjoining the specific sections pertaining only to definitions is not necessary to restore vendors’ freedom.
All books already have ratings. These age guidelines help in determining the audience for whom the material is best suited. Adding additional ratings is an exercise in subjectivity, as well as a means by which censorship can thrive. We’ve seen where and how states nationwide have been working to chip away at the three-pronged Miller Test standard for defining obscenity. They’ve done this by incorporating vague language into legislation intended to limit the materials available in school libraries further. That language includes phrases such as “sexually explicit” and “inappropriate”–terms that put the power of meaning straight into the hands of politicians, rather than professional library workers and educators.
These bills simultaneously create fear and over-compliance by those professionals. See, for example, the decision last week by the New Braunfels Independent School District in Texas to completely deny access to all secondary libraries to students. At the same time, they work to comply with Texas’s book-banning bill, SB 13.
Book People v. Morath is the latest in a string of court rulings over the last month that have skirted the First Amendment rights citizens do or do not have regarding access to library materials. In early October, a Florida District Court judge ruled that neither library patrons nor authors have First Amendment rights when it comes to library collections (that ruling hinged heavily on a decision in the Fifth Circuit from May, stating that library books are government speech and thus, not subject to the Free Speech clause). This case contradicted a decision made just weeks before, in which a judge founda Florida law used to remove books from public schools to be “overbroad and unconstitutional.”
Additionally, a ruling in late September from US District Judge Douglas Cole of the Southern District of Ohio outlined that public school educators don’t have First Amendment Rights when it comes to the books stocked in their classrooms, either.
This week also brought a significant court win for student First Amendment rights in the case E.K. v. Department of Defense Education Activity. US District Judge Patricia Tolliver Giles ruled that the 600 books banned in military schools by the Department of Defense were a violation of Constitutional rights and that they must be returned to the schools of those involved in the lawsuit.
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