Industry & Advocacy News

Fifth Circuit Court Strikes Down Texas Book Ban Law as Unconstitutional

Book Banning Free Speech

January 19, 2024

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The Authors Guild is delighted to report that on January 17, 2024, the US Court of Appeals for the Fifth Circuit upheld a preliminary injunction barring the enforcement of Texas’ ill-named READER Act while the case is still pending. If allowed to take effect, the act would have mandated that any entity supplying books to Texas schools must mark them as “sexually explicit” or “sexually relevant,” as applicable. These ill-defined, vague terms have no basis in existing law, and offer no recourse for judicial review.

The Authors Guild, along with a powerful coalition of Texas bookstores, national booksellers, and publishers, brought this case to defend the right to free expression and protect the long-established rights of local communities to set and implement standards for school materials. The READER Act violates the First Amendment by compelling speech and imposing content-based restrictions.

The state attempted to defend the law on both procedural and substantive grounds, but the court squarely rejected its arguments. First, the State argued that booksellers aren’t “required” to participate in the ratings system and therefore the plaintiffs don’t have standing to sue. It also said that the case wasn’t yet “ripe” because “READER’s regulatory scheme is not yet established,” and plaintiffs won’t be harmed until they either refuse to comply or refuse to re-rate books as requested by the Texas Education Agency (TEA). The Fifth Circuit dismissed these arguments:

“We are not persuaded. Plaintiffs allege that they will be harmed if they comply with READER and harmed if they don’t. If Plaintiffs try to comply, they have alleged that it will cost them potentially millions of dollars to rate and review books. And if they don’t comply, the law at least facially prohibits them from selling any books to schools–which would cost [plaintiff] Blue Willow nearly 20 percent of its revenue. These are concrete, cognizable injuries sufficient to confer standing, and the fact that the vendors are not required to participate in the program does not change that.”

Turning to the merits, the Fifth Circuit found that plaintiffs are likely to succeed on their First Amendment claims:

“[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.’ Here, Plaintiffs ‘wish to stay silent and not express any public views on the appropriateness of various books.’ But the law requires Plaintiffs to ‘either speak as the State demands’ or suffer the consequences.”

The Court also rejected the State’s argument that the ratings system is “purely factual and uncontroversial,” like the nutrition labels on food items, and merely tells a consumer what they are receiving without passing judgment on the material’s appropriateness for children:

“We disagree. The ratings READER requires are neither factual nor uncontroversial. The statute requires vendors to undertake contextual analyses, weighing and balancing many factors to determine a rating for each book. 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.”

Today marks a significant victory for the freedom of expression. This landmark decision safeguards the freedom of speech for authors, booksellers, publishers, and readers, and prevents the state from unjustly dictating private speech.

Additionally, the ruling protects Texas businesses from burdensome regulations, upholds the fundamental rights of the plaintiffs, and reinstates the rights of Texas parents to decide what is suitable and valuable for their children to read in schools, free from governmental overreach.

While the case will continue (and this decision may itself be appealed), we take heart in the Court’s decision, and will continue to fight these battles all over the country.

The full ruling can be found here.