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Censorship: Texas ‘Book Rating’ Law Is Blocked on Appeal [1]

['Porter Anderson', 'About The Author', "Porter Anderson Has Been Named International Trade Press Journalist Of The Year In London Book Fair'S International Excellence Awards. He Is Editor-In-Chief Of Publishing Perspectives. He Formerly Was Associate Editor For The Futurebook At London'S The Bookseller. Anderson Was For More Than A Decade A Senior Producer", 'Anchor With Cnn.Com', 'Cnn International', 'Cnn Usa. As An Arts Critic', 'Fellow', 'National Critics Institute', 'He Was With The Village Voice', 'The Dallas Times Herald']

Date: 2024-01-17 21:53:14+00:00

A court challenge to a Texas law requiring books to be rated for their content has been blocked by the Fifth Circuit Court of Appeals.

Barnes & Noble was one of the companies filing an amicus brief with Penguin Random House in opposing the US state of Texas’ so-called ‘Reader Act’ that sought to force booksellers to identify ‘sexually explicit’ or ‘sexually relevant’ content in their inventory. Image: Houston, Texas – Getty iStockphoto: Brett Hondow Barnes & Noble was one of the companies filing an amicus brief with Penguin Random House in opposing the US state of Texas’ so-called ‘Reader Act’ that sought to force booksellers to identify ‘sexually explicit’ or ‘sexually relevant’ content in their inventory. Image: Houston, Texas – Getty iStockphoto: Brett Hondow

By Porter Anderson, Editor-in-Chief | @Porter_Anderson

See also: Our ongoing coverage of book bannings and other efforts at censorship

‘A Good Day for Bookstores, Readers, and Free Expression’

L

ate-day news from Austin today (January 17) is that the Fifth Circuit Court of Appeals has ruled “HF 900” a violation of the First Amendment protection in the United States. This is the result of a major lawsuit led by the Association of American Publishers t he Authors Guild , the Comic Book Legal Defense Fund , and bookstores Blue Willow in Houston and BookPeople in Austin.

A joint statement from the plaintiffs provided to Publishing Perspectives reads, “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.

“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.”

The plaintiffs also provide three key highlights, quoting from the ruling:

The “district court was correct that the government-speech doctrine does not apply. The ratings are the vendor’s speech, not the government’s.”

The court concluded that the “Plaintiffs are likely to succeed on the merits of [their compelled-speech] claim. . . ‘[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. . . ’ But the law requires plaintiffs to ‘either speak as the state demands’ or suffer the consequences.”

The “Supreme Court has said that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ Because [the law] threatens the plaintiffs’ right to be free from compelled speech, the plaintiffs have shown an irreparable injury. They have also shown that they will suffer irreparable economic injury.”

The AAP has provided this PDF of the decision filed this afternoon by the court.

Victory in Texas: the 5th Circuit U.S. Court of Appeals upholds injunction in @cbldf @bookpeople @BlueWillowBooks @AmericanPublish @authorsguild @ababook challenge to law that would force publishers, distributors, etc. to rate books sold to schools https://t.co/MsuMJnFQqM pic.twitter.com/6D7GFnsfAv — Comic Book Legal Defense Fund (@CBLDF) January 17, 2024

Early Press Attention

William Melhado, writing for The Texas Tribune, reports, “The appellate court, one of the most conservative in the nation, agreed with booksellers who sued the state, claiming the 2023 law violated their First Amendment rights. The court affirmed a district court’s temporary injunction, preventing Texas Education Agency Commissioner Mike Morath from enforcing House Bill 900.”

Publishing Perspectives readers know that the so-called “Reader Act,” or HB 900, in the US state of Texas has been vehemently attacked by anti-censorship activists.

In November, we covered the fact that Barnes & Noble and Penguin Random House had echoed a host of other companies and organizations in opposing act. The retailer and publisher filed an amicus brief in support of Book People v. Wong, the lawsuit that challenges the law’s constitutionality.

In August, Judge Alan D. Albright of the US District Court for the Western District of Texas blocked the staet from enfocing HB 900 so that these and other challenges could be made to the law, signed into effect by Gov. Greg Abbott (R) of Texas and scheduled to have taken effect on September 1.

In July, PEN America backed robust new legal resistance from the book industry to what it terms “censorious government overreach,” a Texas law, HB 900, that PEN says, “violates First Amendment rights by forcing private business to comply with government views.”

Today’s news, quickly reported by Cora Neas from Austin for KXAN, points to the appellate court’s judges’ objection to the law’s “vendor-rating system,” which required publishers and booksellers to rate titles as being “sexually explicit,” “sexually relevant,” or “no rating” for all books sold into Texas libraries.

In quoting parts of today’s ruling, Neas writes, “‘We agree with the state that it has an interest in protecting children from harmful library materials,’ the ruling read.

“But ‘neither [the state] nor the public has any interest in enforcing a regulation that violates federal law,’ the ruling read, citing related cases. ‘Indeed, “[i]njunctions protecting First Amendment freedoms are always in the public interest. Because plaintiffs are likely to succeed on the merits of their First Amendment claim, the state and the public won’t be injured by an injunction of a statute that likely violates the First Amendment.'” Publishers and Publishing Organizations Sued Texas In July, the core lawsuit challenging the constitutionality of this Texas measure was filed in the US District Court for Texas’ Western District in Austin by bookstores and agencies. The bookstores are the Blue Willow in Houston and BookPeople in Austin. At the Association of American Publishers, president and CEO Maria A. Pallante joined with her counterparts at the American Booksellers Association, the Authors Guild, and the Comic Book Legal Defense Fund, in writing, “There is no question that reading in schools should be guided and age-appropriate, but this law does not accomplish that goal. It is inferior to existing constitutional standards because it robs parents, schools and teachers from across the state of Texas of the right to make decisions for their respective communities and classrooms, instead handing that role to a state entity and private businesses. “It is central to the First Amendment that the government can neither restrain nor compel speech, but this law will force booksellers to label constitutionally protected works of literature and nonfiction with highly subjective and stigmatizing ratings, effectively forcing private actors to convey and act upon the government’s views even when they disagree. From a logistical angle, this law creates an impossibly onerous and cumbersome process that bookstores and other vendors must follow, forcing them to review massive amounts of material without the benefit of clear and workable standards, and compelling them to recall titles previously sold over an indeterminate period of time. “The suit filed today seeks to protect the basic constitutional rights of the plaintiffs and restore the right of Texas parents to determine what is age-appropriate and important for their children to access in their schools, without government interference or control.” The 76-page appellate brief filed on November 13 included in its signatories: Book People Inc.

VBK Inc. d/b/a Blue Willow Bookshop

American Booksellers Association

Association of American Publishers

Authors Guild

Comic Book Legal Defense Fund More from Publishing Perspectives on book bannings is here, more on censorship more widely is here, and more on the freedom of expression and the freedom to publish is here.

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[1] Url: https://publishingperspectives.com/2024/01/censorship-texas-book-banning-law-ruled-unconsitutional/

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