Texas Booksellers Warn Fifth Circuit on Sex-Content Rating Law

A lawyer for Texas booksellers urged a federal appeals court to find unconstitutional a state law’s provisions requiring them to assign sex-content ratings for titles sold to public schools.

A panel on the US Court of Appeals for the Fifth Circuit didn’t clearly indicate at arguments Wednesday how they will rule on H.B. 900, the Restricting Explicit and Adult-Designated Educational Resources Act. A federal district temporarily blocked the rating requirements in September, but the Fifth Circuit issued an administrative stay that suspended the lower court order while the appellate judges considered the case.

The judges asked attorneys for the state and the vendors about definitions in the law, which requires booksellers to deem books as “sexually explicit,” “sexually relevant,” or “no rating.”

Books labeled “sexually explicit” wouldn’t be allowed at public school libraries, and vendors who break the law may be banned from selling titles to Texas public schools. State officials can reclassify books if they disagree with sellers’ ratings, and a vendor may be forced to use the new “corrected rating” as shared on a state website, according to court papers.

Kateland Jackson, an assistant solicitor general for Texas, said those ratings are defined within the act itself and are tied to the state’s penal code. But Laura Lee Prather, representing the booksellers, said the definitions are unconstitutionally vague. She added that they are rooted in definitions in the Texas penal code related to child sexual abuse materials, a visual medium rather than a textual one.

Prather, partner and chair of Haynes Boone’s media law practice group, said the law lacks “guardrails” for rating books. “It then reaches into classics like ‘To Kill a Mockingbird’ and others, because there’s no safeguards for reaching into those constitutionally protected works,” she said.

Jackson urged the court to not make a finding on the merits, but rather find that the claims aren’t yet ripe and should be dismissed. She also pushed back against criticisms of the law, saying it is “not a book ban.”

“Texas’s new law simply protects parents’ rights to decide what materials their children will read in a public school library,” as well as the state’s interest in preventing those same children “from being exposed to harmful sexually explicit material at taxpayers’ expense,” Jackson said.

The state attorney also argued, in response to a question from Judge Don Willett, that if the law is a prior restraint on speech it is still constitutional, because such a restraint is allowed in the context of a public school.

Jackson said the vendors’ ratings of books are not compelled speech because the act “does not force” the sellers to be associated with their ratings.

Prather disagreed, noting that the law requires the ratings to be publicly and conspicuously posted on the Texas Education Agency’s website. US District Judge Alan D. Albright of the Western District of Texas called the law “textbook compelled speech” when he temporarily blocked it earlier this year.

Prather said it’s an “impossible task” for sellers to rate every book they previously sold to and is still in use within school districts, as the law requires before they can sell more titles to schools. She pointed to Texas’s over 1,200 school districts and vendors having little insight into whether those materials are still being utilized. The attorney said the vendors then have to go through a 16-step process to apply the rating, which can include trying to determine an author’s intent if there is a potentially sexually explicit passage in a book.

Prather also said there’s no way to apply different ratings for books depending on a student’s age, a scenario she said is “basically a race to the bottom.”

“You’re going to have a situation that promotes over-inclusion of these ratings” to keep a good relationship with Texas’s educational body, Prather said. “And what’s going to result is the public at large gets harmed.”

She urged the court to keep the injunction against the rating provisions of the law in place, or the vendors will face “irreparable injury” over their First Amendment rights, including financial and economic harm. She said that even if the law is ultimately overturned, “this bell cannot be unrung.”

The case is Book People Inc. v. Wong, 5th Cir., No. 23-50668, Oral argument