Texas ban on ‘sexually explicit’ books in school libraries halted by 5th Circuit Court

The U.S. 5th Circuit Court of Appeals has sided with a group of bookstores and publishers suing the Texas State Library and Archives Commission (TSLAC), the State Board of Education (SBOE), and the Texas Education Agency in halting the state’s new law to prevent book vendors from selling “explicit” materials to public schools.

House Bill (HB) 900, also known as the READER Act, was signed into law by Gov. Greg Abbott last month. It is aimed at preventing children from accessing certain materials in public school libraries by prohibiting library vendors from selling library material rated “sexually explicit,” effective September 1, 2023. The law required vendors to perform a “contextual analysis” of their own materials to determine their level of appropriateness.

The opinion of the court explains how the judges were “unpersuaded” by the State of Texas’ argument that the READER Act “does not implicate Plantiffs’ First Amendment rights at all.” Instead, the court sided with the bookstores and publishers, saying that the plaintiffs “must only prove that the conduct they intend to engage in is ‘arguably affected’ with constitutional interest. They have done so.”

The opinion also addresses the issue of enforcing the READER Act. 

“We assume there is a credible threat of enforcement and conclude that Plaintiffs have sufficiently established an injury in fact under our preenforcement standing precedent,” the opinion reads.

“The State contends that these economic injuries cannot confer standing because the vendors are not required to participate in the rating system and their alleged injuries are not imminent,” the court further stated. “We are not persuaded.”

The court also took up the issue of vendors being required to provide a “contextual analysis of material” and said that the READER Act would go “beyond a mere disclosure of demographic or similar factual information.” In response to the state’s argument that the READER Act guidelines would be part of essential governmental operations, the court determined that “exception does not apply.”

The author of the READER Act, Rep. Jared Patterson (R-Frisco) said in response to the opinion that he is “disappointed by this decision in part, as book vendors have an obligation to be aware of the content they are distributing, especially if that content is sexually explicit material into the hands of school children.”

“I call on the Office of Attorney General to appeal this decision to the United States Supreme Court and in the meantime look forward on how Texas can improve vendor accountability with other legislative solutions next session.”

The fallout from the 5th Circuit opinion will likely have widespread effects.

One library oversight measure that will remain in effect is the set of TSLAC standards created in response to HB 900 as a way to guide public school book vendors on what is appropriate material and provide transparency mechanisms for parents of children in those schools. The court stated they could remain in effect as they are “not at issue on appeal.”

The SBOE adopted those standards in December.

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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