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Federal Appeals Court Hears Arguments on READER Act

Close up of Texas state flag with a white star on a blue field next to wide white and red stripes

On November 29, the U.S. Court of Appeals for the Fifth Circuit heard oral arguments in Book People v. Wong, a case with significant implications for freedom of expression and education in Texas. Plaintiffs, including the Authors Guild, had secured a preliminary injunction against the controversial READER Act, which mandates that any entity supplying books to Texas schools must classify them as “sexually explicit” or “sexually relevant.” The State appealed, requesting a temporary stay of the injunction, which was granted. At issue in the November hearing was whether the injunction was properly granted. 

The State attorneys put forth several key arguments. They contended that the plaintiffs’ case was premature and suggested that the act of rating books was, in some way, voluntary rather than compulsory. Additionally, the State asserted that the plaintiffs had failed to demonstrate any constitutional harm because (in addition to any harm being speculative), the state has broad powers to regulate speech made available to children, and the First Amendment does not protect obscene speech, especially in an educational context. While the State attorneys acknowledged that constitutional harm could occur in the future, they consistently advocated for affording the State “the chance to develop laws before they’re stricken,” an argument that the court questioned throughout the hearing.  

The plaintiffs’ counsel provided a detailed response to the court’s questions, asserting that their case was not premature. 

“Under the statute … booksellers are prohibited from selling any book to Texas schools until they rate all books that have been previously sold to the school districts. So, this isn’t about some future reading lists. … This is about a prohibition at this moment in time against selling any books to Texas schools if they have not rated all previous books sold.” 

The plaintiffs’ council clarified that they do not contest the state’s authority to regulate curriculum, address obscene content, or constitutionally restrict sexually explicit material in school libraries. However, they criticized the legislature for selectively using definitions from the criminal code, particularly those related to child pornography. Furthermore, they pointed out the absence of necessary safeguards, such as those outlined in the obscenity test established by the Supreme Court in Miller v. California.  

The court posed the question, “Would it be constitutional if the law simply prohibited vendors from selling sexually explicit material to school districts without requiring ratings?” Plaintiffs’ counsel responded by stating that its constitutionality hinges on the definition of “sexually explicit,” which, regrettably, is excessively vague in this statute. The plaintiffs’ council went on to elaborate on the significant burdens the law imposed on booksellers, including the requirement to assess an author’s intent and conduct intricate contextual analyses of the books in question. Characterizing the law as overly broad, they argued that it treats all public schools and students uniformly, creating a potential “race to the bottom” scenario where booksellers may over-include books on these lists to maintain their relationships with the Texas Education Agency. This, in turn, could lead to the exclusion of books addressing important topics for young adults, such as abuse, drugs, and human trafficking. 

The court asked about other states and similar bills around the country: “Have any other states done this, or is the Texas bill a complete unicorn?” Plaintiffs’ counsel confirmed that this bill is indeed “a unicorn,” but that the bill’s sponsor hopes that it will be a model for other states: 

“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 [the law] is ultimately overturned, this bell cannot be unrung.”

While the court’s questions seem to show an understanding of the constitutional issues, it is impossible to predict a court’s decision. We hope the court will uphold the injunction of the READER Act. We will continue to monitor developments in this case and will update our members accordingly.  

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