The READER Act (HB 900) requires school book vendors who want to do business with Texas public schools to issue sexual-content ratings for all library materials they have ever sold (or will sell), flagging any materials deemed to be “sexually explicit” or “sexually relevant” based on the materials’ depictions of or references to sex. In response to the passage of the READER Act, several  book vendors sued the chair of Texas State Library and Archives Commission, the chair of Texas State Board of Education, and the Commissioner of Texas Education Agency in Book People, Inc. v. Wong, No. 23-50668, 2024 WL 175946 (5th Cir. Jan. 17, 2024) alleging the READER Act violated the First and Fourteenth Amendments. In July 2023, before READER went into effect, Plaintiffs sought a preliminary injunction under 42 U.S.C. § 1983, based upon claims that the READER Act unconstitutionally compelled private speech, was unconstitutionally vague and overbroad, was a prior restraint on speech, and was an unconstitutional delegation of government authority. The United States District Court denied the state defendants’ motion to dismiss and entered preliminary injunction. The State immediately appealed.

In its January 17^th 2024 decision, the Fifth Circuit Court agreed with the lower court and with the Plaintiffs as to Plaintiffs’ compelled speech claims, finding that the speech was the vendors’, that they did not wish to rate the books and that they were harmed by having to either comply with the compelled speech or suffer the consequences of not being able to sell books to school districts.

“[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 view on the appropriateness of various books.” But the law requires Plaintiffs to “either speak as the State demands” or suffer the consequences.

Because the court found for the Plaintiffs on the compelled speech claim, it did not decide whether the law violated the Fourteenth Amendment or whether it constituted a prior restraint on speech.  Accordingly, affirmed the lower court findings against Commissioner Morath, vacated the findings against Chairs Wong of the State Library and Archives Commission and against Kevin Ellis, former Chair of the State Board of Education with direction to the lower court to dismiss Wong and Ellis.  Finally, the court affirmed the district court’s grant of an injunction preventing the implementation of the READER Act rating provisions, but permitted the State Library and Archives Commission to proceed with the development of library standards.

Although the case dealt with state requirements, the requirements are derived by cherry-picking legal standards from criminal statutes and cases dealing with obscenity to arrive at a standard for “educational suitability” and “pervasive vulgarity.”  The case illustrates the importance of using caution when responding to library book challenges and when removing previously approved books from school libraries, as it may make districts vulnerable to challenges that the removal violates the First Amendment.  The standards used, which generally are “educational suitability” and “pervasive vulgarity” are not well defined in the law.  Equally important is the fact that the Pico case from which the standards are derived was not a majority opinion, so it is not binding precedent. Bd. Of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 102S. Ct. 2799, 73 L. Ed. 2d 435 (1982). While the Pico case provides guidance, it is vulnerable to a challenge, so it is equally important to follow existing policies and to follow the recommendations of district professionals when considering challenges to books already adopted and in use.  Should any questions arise regarding the First Amendment or in responding to library book challenges, contact Leon Alcala for additional guidance.  

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