In 2022, state and local governments banned 2,571 different books. This is more books than were subject to such bans in the previous three years combined (2,436). Most of these efforts are taken at the local level. Texas’ Restricting Explicit and Adult-Designated Educational Resources (READER) Act marked a departure from this practice and sought to ban books statewide. However, the United States Court of Appeals for Fifth Circuit (the “Fifth Circuit”) recently upheld a preliminary injunction against portions of Texas’ law.

Background on Texas’ Sexual Book-Rating Law

In June 2023, Texas Governor Greg Abbott signed the READER Act, which regulates the sale, purchase, and possession of public-school library materials. The stated goal of the READER Act was to keep “sexually explicit” material out of school libraries and require parental consent before a student can access “sexually relevant” material. The READER Act attempts to accomplish the goal in two ways: (1) library-collection standards, and (2) a vendor-rating system.

Library-Collection Standards. The library-collection standards require the Texas State Library and Archives Commission to adopt standards for school libraries which prohibit school districts from possessing, purchasing, or acquiring “(i) harmful material, as defined by Section 43.24, Penal Code; (ii) library material rated sexually explicit by the … vendor; or (iii) library material that is pervasively vulgar or educationally unsuitable [as defined by the U.S. Supreme Court].” School districts are required to follow these standards.

Vendor-Rating System. The vendor-rating system mandates that vendors rate all materials that they have sold, will sell, and that remain in use by a school district. Materials must be rated as “sexually explicit,” “sexually relevant,” or “no rating.” Any material depicting sexual conduct must be rated as “sexually relevant” or “sexually explicit,” if the depiction is offensive to community standards of decency. “Sexually explicit” material may not be sold to school districts and must be removed from school libraries. “Sexually relevant” material is prohibited from being used outside the school library without parental consent.

To determine whether material is “sexually explicit” or “sexually relevant,” vendors must consider three factors: (1) the graphic nature of sexual conduct, (2) the prevalence of sexual or excretory content, and (3) whether the material is intentionally provocative. In examining these factors, vendors are required to consider the full context of the depiction, “recognizing that contextual determinations are necessarily highly fact-specific” and that “each instance of a [depiction] … may present a unique mix of factors.”

After vendors rate their books, the Texas Education Agency (“TEA”) must post the ratings on its website. The TEA also may review materials and mandate corrected ratings. If so, the vendor must changes its rating to that decided by the TEA. If a vendor fails to comply, they are put on the noncompliance list, barring school districts from purchasing the vendor’s materials until the vendor complies.

Plaintiffs’ Lawsuit Regarding the READER Act

In July 2023, two Texas bookstores who sold library materials to school districts, three national trade associations, and a legal-defense organization challenged the READER Act in federal district court. The plaintiffs sought a preliminary injunction to block enforcement of the entire law, alleging that it violates the First and Fourteenth Amendments. The district court granted a narrower preliminary injunction prohibiting enforcement of the vendor-rating system provisions only. The Texas state-defendants (“Texas”) appealed the preliminary injunction to the Fifth Circuit.

The Fifth Circuit’s Decision

On appeal, the Fifth Circuit affirmed the district court’s decision. Texas argued that the injunction should be reversed because the READER Act’s required ratings are “government speech,” and even if the READER Act compels private speech, exceptions to the compelled-speech doctrine apply and make the law constitutional.

Government-Speech Doctrine. Whether speech is “government speech” is a fact-specific inquiry dependent on three factors: (1) the history of the expression at issue; (2) the public’s likely perception as to who (the government or a private person) is speaking; and (3) the extent to which the government has actively shaped or controlled the expression. The Fifth Circuit found that there is no history of book ratings, that the public is likely to attribute the ratings to the vendors (not the government), and that the requirement that any rating be issued by the vendors, not Texas, all weighed against Texas’ argument. In turn, the court found that the government-speech doctrine did not apply.

Compelled-Speech Doctrine. Generally, the First Amendment protects both the right to speak freely and the right to not speak at all. The plaintiff bookstores argued that the READER Act compels speech in two ways: (1) it coerces vendors to issue ratings as a condition to selling books to schools, and (2) it requires vendors to adopt Texas’ “corrected” rating, which is then attributed to the vendor. The Court agreed that the READER Act compels vendors to speak.

Texas argued that the “government operations” and “commercial speech” exceptions to the compelled-speech doctrine prohibited the plaintiffs’ claim. The Fifth Circuit disagreed and held that the “contextual analysis of material” which involves “weighing and balancing several factors … goes beyond a mere disclosure of demographic or similar factual information” required for the “government operations” exception and was far too fact-dependent and controversial to qualify for the “commercial-speech” exception.

Irreparable Harm and the Public Interest. To uphold a preliminary injunction, a court must find that the plaintiffs would suffer irreparable harm without the injunction and that an injunction would serve the public interest. The Fifth Circuit found that the plaintiff bookstores would suffer irreparable harm because deprivation of First Amendment freedoms for even minimal periods is irreparable, and furthermore, the plaintiffs showed that the cost of compliance with the READER Act could put them out of business. In addition, the Fifth Circuit found that the public interest is served by injunctions which protect First Amendment freedoms.

Based on this analysis, the Fifth Circuit affirmed the district court and prohibited the vendor-rating system from going into effect while the litigation proceeds.

Impact on Public School Districts

School districts should remain aware of similar efforts to ban books at the state and local level and be aware of their First Amendment implication. While this case serves as persuasive precedent against similar laws which impose speech obligations on private parties, the case did not address legislation concerning direct regulation of school districts (i.e., the library-collection standards), and the underlying lawsuit remains active.

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