5th Circuit Court hears arguments over Texas law requiring sexual content ratings for school books

Oral arguments were presented on Wednesday in a lawsuit involving a new Texas law that bans book vendors from selling sexually explicit material to public schools in the state.

Book People v. Wong was first initiated in July after a group of bookstores and publishers filed a lawsuit against House Bill 900, better known as the READER Act, passed in the 88th regular session of the Texas Legislature.

The law prohibits library vendors from selling libraries material that is rated as “sexually explicit” to schools, and will require them to recall material previously sold to school districts that fall under that “explicit” rating.

Rating guidelines for the book vendors will be given guardrails with this new law, as it requires vendors to perform “contextual analysis of library material.” The new law also will require parents to provide written consent to a school district for a student to access material that a vendor has rated as “sexually relevant.”

The implementation of the READER Act has been fraught with legal challenges; a judge initially instituted a temporary block on the bill, but a motions panel for the 5th Circuit Court of Appeals ordered an administrative stay to allow the new law to be implemented while the court hearings proceed.

The bill's author, Rep. Jared Patterson (R-Frisco) posted on social media before the arguments commenced Wednesday, writing, “The [ACLU of Texas] and other far-left liberal organizations believe children have a first amendment right to pornographic materials in a setting where parents aren’t present.”

“This law is model legislation for the rest of the nation.”

The oral arguments were held in the 5th Circuit Court of Appeals in New Orleans.

The State of Texas led off the proceedings by stating that “READER is not a book ban … it simply protects parents’ rights.”

The attorney for the state argued that the law does not implicate the free speech clause of the First Amendment because of the “vulnerable public school context” in which the law would be applied.

Additionally, the state argued that there is “no reason to believe the public would believe this is the plaintiffs’ speech …they can specifically disavow” the rating system rather than use it to rate their books.

The state’s attorney added that the law “does not force the plaintiffs to associate with the ratings” as they can put up their own comments about the rating system being contrary to their personal views.

A looming question about what the law means by “sexually explicit” and “sexually relevant” was brought up by one judge on the panel. The state’s attorney answered that the standard “will be developed … Texas should have the chance to implement and develop before the law is stricken down.”

In their rebuttal, the plaintiffs in the case stated outright that vendors would be prohibited from selling books to Texas schools unless rated under the READER Act. Their attorney went on to say that if the state disagrees with a bookseller, said vendor is prohibited from selling any book to Texas public schools.

The plaintiffs’ attorney added, “Make no mistake, these ratings are associated with the booksellers.”

HB 900 was described as “impossibly vague” and accused of applying an “arbitrary framework.”  The attorney for the plaintiffs then stated that the definitional language for sexually explicit is “unconstitutionally vague.”

“Contextual analysis is a blunt instrument,” the plaintiff's attorney said, arguing that compulsion and constraint are a part of the law’s statutes.

One judge asked the plaintiffs’ attorney if there are other states that use book vendors as the curating method for books in public school libraries.

“The Texas bill is a complete unicorn,” the attorney answered, arguing it was unique in the nation.

The state did have a chance to rebut several of the claims made by the plaintiffs.

The state’s attorney evoked the U.S. Supreme Court case Miller v. California to argue that obscene material, as it relates to community standards, can be taken as a statewide standard and thus the restraint on book vendors does not violate the First Amendment.

“This country has a long history of recognizing First Amendment limitations in the school context,” the state's attorney argued. “Prior restraint is permitted in the school context.”

She concluded that the READER Act “is not an unconstitutional prior restraint.”

With the case now submitted to the court, it awaits a determination and final ruling.

Dan Butcher

Dan Butcher (aka HP Pundit) is not a Democrat or Republican. He is a free thinking independent bringing you news and commentary with a dose of much needed common sense.

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