Appeals Court Upholds Ban on Texas Law Shielding Kids From Books With Sexual Content

Books on shelves in an elementary school, in a file photo. Hakim Wright Sr./AP Photo

A federal court ruled on Jan. 17 that part of a Texas state law aimed at protecting children from exposure to sexually explicit or inappropriate material in schools likely violates the U.S. Constitution.

The three-judge appeals panel of the U.S. Fifth Circuit Court of Appeals said in their unanimous ruling that plaintiffs who filed a lawsuit against the measure would likely succeed on their claims that it violates their First Amendment right to free speech.

The legislation at the center of the dispute is the Restricting Explicit and Adult-Designated Educational Resources Act (READER) which was authored by state Rep. Jared Patterson, (R-Frisco) and signed into law by Gov. Greg Abbott in June.

The measure, which was initially set to go into effect on Sept. 1, 2023, requires public school library vendors to review and flag books containing “sexually explicit” or “sexually relevant” content or material.

Books that do not contain such inappropriate content would be labeled with “no rating,” according to the law.

Books containing “sexually relevant” content may not be checked out of school libraries without children first gaining written parental consent, the measure states.

According to the measure, the list of library materials rated as sexually explicit material or sexually relevant material sold by the vendor to a school district should also be provided on an annual basis to the Texas Education Agency, which oversees public schools.

Critics Say Bill Amounts to Book Ban

While advocates say the measure is needed to ensure children are protected from sexually explicit and inappropriate material in schools, critics have argued the legislation amounts to a book ban.

Two Texas bookstores—Houston’s Blue Willow Bookshop, and Austin’s BookPeople, national trade associations representing booksellers, publishers, and authors— the American Booksellers Association, Association of American Publishers, Authors Guild—and the Comic Book Legal Defense subsequently filed a lawsuit against the measure.

Their lawsuit named Mike Morath, commissioner of the Texas Education Agency (TEA); Martha Wong, chair of the Texas State Library and Archives Commission; and Keven Ellis, chair of the Texas State Board of Education (SBOE), as defendants in the case.

In their ruling Wednesday, the three-judge appeals panel, which was made up of two Republican appointees and one Democrat, agreed that plaintiffs would likely succeed in their claims.

“In short, the Act 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,” Circuit Judge Don Willett, a former Texas Supreme Court justice, added in the court’s opinion.

Newly donated LGBT books are displayed in the library at Nystrom Elementary School in Richmond, Calif., on May 17, 2022. Justin Sullivan/Getty Images

‘Good Day for Bookstores, Readers, Free Expression’

The court further noted that the ratings to be provided for the books “are the vendor’s speech, not the government’s,” and that the law mandating the ratings would compel the plaintiffs to “submit ratings with which they disagree,” and “constrain them from continuing to do business with school districts if they fail to submit the required ratings or decline to acquiesce in the State’s revised ratings,” violating their freedom of speech.

“The State’s position is that READER does not implicate Plaintiffs’ First Amendment rights at all, but … we are unpersuaded,” the court wrote, adding that the plaintiffs “have also shown that they will suffer irreparable economic injury” if the law goes into effect.

Wednesday’s ruling partially upholds a preliminary injunction issued by a lower court last fall.

Plaintiffs in the lawsuit issued a joint statement following the ruling calling it a “good day for bookstores, readers, and free expression” and thanking the appeals court for taking “decisive action in striking down this unconstitutional law.”

The groups said the decision will 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,” they said.

Mr. Patterson called the ruling disappointing in a statement to The Dallas Morning News and said the appeals court “removes accountability for book vendors” who “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.”