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

In Feature Articles by Porter Anderson

A Texas law requiring books to be rated for sexual 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

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’
Late-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, American Booksellers Association, the 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.

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 … 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.

About the Author

Porter Anderson

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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 and anchor with CNN.com, CNN International, and CNN USA. As an arts critic (Fellow, National Critics Institute), he was with The Village Voice, the Dallas Times Herald, and the Tampa Tribune, now the Tampa Bay Times. He co-founded The Hot Sheet, a newsletter for authors, which now is owned and operated by Jane Friedman.