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Fifth Circuit Court Calls Texas READER Act Unconstitutional; Stays Law

Kelly Jensen


Kelly is a former librarian and a long-time blogger at STACKED. She's the editor/author of (DON'T) CALL ME CRAZY: 33 VOICES START THE CONVERSATION ABOUT MENTAL HEALTH and the editor/author of HERE WE ARE: FEMINISM FOR THE REAL WORLD. Her next book, BODY TALK, will publish in Fall 2020. Follow her on Instagram @heykellyjensen.

In what is undoubtedly one of the biggest wins over the course of this ongoing three year battle over book bans, the Fifth Circuit Court of Appeals has upheld the stay issued by lower courts over the Texas READER Act (HB 900). The Act would ban “sexually explicit” books from schools in the state and require all book vendors in the state to rate the content of materials they sell and submit a list to the Texas Education Agency (TEA). TEA would have the authority to determine whether or not materials could be purchased from those vendors. The law would go into effect September 1, with ratings due to the state by April 1, 2024.

In July 2023, several book vendors, including Austin’s BookPeople bookstore and Houston’s Blue Willow Bookshop, filed a lawsuit against the act. The lawsuit noted that the READER Act’s vagueness made it impossible to follow and more, its overreaching nature violated both the First and Fourteenth Amendment.

The initial hearings led to the law being enjoined, meaning that it could not go into effect while the suit was being tried. The state appealed the decision immediately, claiming a “government speech” clause that was also recently used in an attempt to end a book banning lawsuit in Escambia County, Florida. The court found that the ratings portion of the law would not constitute government speech but vendor speech, as ratings would be determined by book sellers and not the state itself (even if TEA has authority over the vendors schools may or may not patronize).

One of the key takeaways of the decision yesterday is the Court’s belief that the READER Act is a violation of the First Amendment.

[T]he Supreme Court has said that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”Because READER threatens Plaintiffs’ right to be free from compelled speech, Plaintiffs have shown an irreparable injury.

It also emphasizes that what the State claims the purpose of the ratings system is is not actually what it is:

According to the State, Zauderer applies here because the librarymaterial ratings are “purely factual and uncontroversial” like a nutrition label; they simply tell the buyer what they are receiving rather than pass judgment or express a view 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.

We conclude that neither exception applies. Plaintiffs are thus likely to succeed on their compelled speech claim

The plaintiffs in the case celebrated this decision.

“We are grateful for the Fifth Circuit Court of Appeals’ decisive action in striking down this unconstitutional law. With this historic decision the court has moved decisively to ensure the constitutionally protected speech of authors, booksellers, publishers, and readers, and prevent the state government from unlawfully compelling speech on the part of private citizens,” said Valerie Koehler, owner of Houston’s Blue Willow Bookshop, Charley Rejsek, the CEO of Austin, Texas-based bookstore, BookPeople, Allison K Hill, CEO of the American Booksellers Association; Maria A. Pallante, President and CEO of the Association of American Publishers; Mary Rasenberger, CEO of the Authors Guild; and Jeff Trexler, Interim Director of Comic Book Legal Defense Fund in a statement. “The court’s decision also shields Texas businesses from the imposition of impossibly onerous conditions, protects the basic constitutional rights of the plaintiffs, and lets Texas parents make decisions for their own children without government interference or control. This is a good day for bookstores, readers, and free expression.”

Intellectual freedom advocates both in and beyond Texas celebrated, too.

“Booksellers are essential in advancing the freedom to read for all. Blocking the implementation of HB 900 will help ensure authors can reach Texas audiences and bookstores can distribute to public schools without government intrusion in their business,” said Kasey Meehan, program director, Freedom to Read at PEN America. “We look forward to the day that it is struck down for good. Until then, we are relieved that the injunction helps protect the fundamental right to read for students in Texas.”

The Texas Freedom to Read Project added, “[We’re] thrilled that the 5th U.S. Circuit Court of Appeals, in blocking HB 900, has recognized and affirmed booksellers, librarians, teachers, and parents’ concerns that the law violates the First Amendment. We thank @bookpeople and @bluewillowbooks for their courage and tenacity in standing up against this unconstitutional law. This is a win for Texas students and a vindication of the freedom to read.”

Yesterday’s decision at the Fifth U.S. Circuit Court of Appeals is a major move, as this will help in not only this legal battle but it will also put into motion the possibility of major wins in other ongoing anti-book ban lawsuits across the country. This Circuit Court is one of the most–if not the most–conservative in the country, with six judges appointed by Trump during his presidency. The judge issuing the statement in this case, Don Willett, is one of them.

Lawsuits are going to set the standard about book bans in the coming year. Decisions like this one are the start of what will be a long, but important, codification about the First and Fourteenth Amendment Rights held not just by parents, but students, educators, librarians, and the general public. Likewise, this particular decision by the Fifth Circuit will likely be crucial in how other ongoing lawsuits–like the one in Iowa–will proceed.

The decision is one worth reading in whole.