By Andrew Richard Albanese, Editor-in-Chief
Publishers and booksellers are pushing back against a bid by Texas state attorneys to resurrect H.B. 900, the controversial “book rating” law previously ruled unconstitutional and blocked from taking effect in 2023.Signed into law by Texas Governor Greg Abbott on June 12, 2023, H.B. 900 (also known as the READER Act) was at the time viewed by many as the most high-profile of a wave of book banning laws emerging at the state level in the U.S.
The law would have required bookstores and vendors to review all books in Texas schools (at their own expense) and rate them for “sexual content” as a condition of doing business with Texas public schools—including tens of thousands of previously sold titles. Under the law, books rated “sexually explicit” would then be banned entirely from Texas public schools, while books rated “sexually relevant” would require written parental permission for students to access them. Furthermore, the law would have given the state the unchecked power to change the rating on any book, and to “blacklist” vendors that did not accept the state’s altered ratings, essentially imposing a de facto state standard.
As Publishing Perspectives covered at the time, a coalition including two bookstores (Austin’s BookPeople and Houston’s Blue Willow Bookshop); the American Booksellers Association; the Association of American Publishers; the Authors Guild; and the Comic Book Legal Defense Fund—sued to block the law shortly after its enactment, arguing it was unconstitutional on multiple grounds.
And in a substantive 59-page written opinion and order, issued in September 2023, judge Alan D. Albright agreed with the plaintiffs and “preliminarily” blocked the law from taking while the litigation proceeded. That preliminary injunction was later upheld by the Fifth Circuit U.S. Court of Appeals, widely considered to be the most conservative court in the U.S.
With case back in Albright’s court for final disposition, the judge granted summary judgment to the plaintiff booksellers and publishers in October 2025, and upgraded the injunction blocking the law’s book rating provisions from preliminary to permanent.
A Second Chance
But Albright’s final ruling last fall also gave the state a second bite at the apple, and in their new appeal before the Fifth Circuit U.S. Court of Appeals, Texas attorneys are now pressing a new argument: that Albright erred by interpreting the state’s role under H.B. 900 as that of a “regulator” rather than as a mere “marketplace” participant.
Judge Alan D. Albright (credit: U.S. District Court for the Western District of Texas).
“For all of Plaintiffs’ overwrought rhetoric about a ‘book ban’ and ‘censorship boards,’ this case concerns a statute in which the State, as a marketplace participant, seeks information about goods it purchases,” the Texas brief argues. “The statute at issue requires vendors that sell books to public schools to inform the Texas Education Agency about the sexual content of those books. Vendors can freely decline to provide this information, but if they do, the State is free not to purchase from them.”
In this context, Texas attorneys argue, the plaintiffs’ constitutional arguments are inapplicable.
In their response, filed on May 13, the plaintiff booksellers and publishers point out multiple flaws in the state’s attempt to recast H.B. 900 as a marketplace issue.
“Every facet of H.B. 900 carries the hallmarks of regulation,” the plaintiffs argue. “The State is not merely deciding what to purchase for itself. It dictates what separate entities may buy; it demands what private actors must do; it imposes a comprehensive regulatory scheme for classifying books (by private actors); it empowers [the State] to override those private determinations; and it requires private actors to adopt the State’s views as their own. That is pure regulation of speech, and Defendant cannot sidestep the First Amendment with mere semantics.”
Even if the court were to buy into the state’s new “marketplace-participant” theory, the plaintiffs’ brief continues, it still fails to overcome the “unconstitutional conditions” it places on booksellers. “The law requires booksellers to surrender their free speech rights as a condition of selling any books to Texas schools. This violates the bedrock principle that the government may not deny a person benefits on a basis that infringes constitutionally protected interests.”
After more than two years, and still in the midst of a years-long right wing censorship movement, the return of H.B. 900 is a tense, and unwelcome development for freedom-to-read advocates.
On May 20, several industry groups filed a brief in support of the plaintiffs, pointing out the economic and cultural impact the “book rating” law would have, if allowed to take effect.
“In short, [H.B. 900’s] ramifications for booksellers and book publishers alike are daunting from an economic and cultural perspective. Larger publishers and booksellers will suffer a significant loss of revenue. Smaller ones could conceivably be forced to discontinue operations entirely,” argues an amicus brief filed by several publishers and industry associations, including Penguin Random House, the Association of University Presses, Authors Against Book Bans, Barnes & Noble, the Educational Book and Media Association, Freedom to Learn Advocates, Half Price Books, the Independent Book Publishers Associations, and Sourcebooks.
In addition, the brief states, the book rating provisions of H.B. 900, if allowed to take effect, will mean “fewer works will be discovered by young Americans, depriving them of valuable learning and developmental opportunities.”
“We are dismayed by the layers of unconstitutionality in this book-banning law as well as the draconian nature of its implementation,” said AUPresses Executive Director Peter Berkery, in a statement accompanying the brief’s filing. “We have received reports from our members that distributors are overwhelmed by the law’s requirements and are asking for publishers’ rating assistance so they can continue to serve school libraries in Texas.”
The “coercive nature” of H.B. 900 is “simply breathtaking,” Berkery continued. “Failure to comply has significant financial and reputational consequences.”
At press time, no date has been set for oral argument, though both sides have requested a hearing.