Coalition Files Appellate Brief to Uphold Grant of Preliminary Injunction Barring Implementation of Texas Censorship Law

Coalition of Texas Bookstores, National Booksellers, Authors and Publishers

File Appellate Brief to Uphold Grant of Preliminary Injunction Barring Implementation of Texas Censorship Law

On November 13, 2023, a broad coalition including Texas bookstores, national booksellers, authors and publishers filed an appellate brief in the U.S. Court of Appeals for the Fifth Circuit, requesting that it affirm the preliminary injunction of the “Reader Act” (formerly HB 900) granted by Judge Alan D. Albright of the U.S. District Court for the Western District of Texas, Austin Division. The Reader Act would require independent bookstores, national chain bookstores, large online book retailers, book publishers and other vendors to review and rate millions of books and other library materials according to sexual content if those books are sold to school libraries, and to do so according to vague labels dictated by the state without any process for judicial review. On September 18 of this year, Judge Albright issued a written opinion granting the preliminary injunction, ruling that the Act “likely violates the First Amendment by containing an unconstitutional prior restraint, compelled speech, and unconstitutional vagueness.” The State defendants filed an appeal later that day. Oral argument is scheduled for Wednesday, November 29.

Excerpts from the appellate brief include:

• This case is about whether the government can compel private entities to, at their own expense, make highly subjective, complex determinations about the content of books in violation of their sincerely held beliefs or be barred from distributing constitutionally protected books to public schools.

• HB 900 causes a variety of imminent constitutional and economic injuries to private booksellers, including credible threats of compelled speech and violations of Plaintiffs’ right to distribute books, that must be addressed now. Such an untenable and unconstitutional mandate will create an existential crisis for independent booksellers who sell books to Texas schools.

• Plaintiffs are faced with a plethora of Hobson’s choices. First, they must choose to issue ratings or stop doing business with Texas public schools. Second, even if they compromise their beliefs and rate books (an impossible task as outlined in § II.B.), if the State disagrees with a single rating, Plaintiffs must “(1) adopt the State’s alternative ratings — meaning listing the State’s rating as their own (which is posted online), even when they disagree — in order to sell any books to public schools or (2) follow their sincerely held beliefs by refusing to adopt State-mandated ratings with which they disagree and be permanently banned from selling books to Texas public schools.” Plaintiffs will be irreparably injured either way. If Plaintiffs yield to the State’s demands, they will betray their conscience. If Plaintiffs fail to provide ratings or do not update their initial ratings with the State’s ratings, they will face “substantial financial harm” by being prevented from selling any books to public schools and could also incur “reputational harm” because their ratings, which will be published online, will be held against them by potential book buyers across Texas and the country.

• Besides the profound vagueness of HB 900’s text and implementation by booksellers, how HB 900 will operate is equally, if not more, opaque. On August 18, at a hearing before District Judge Albright, The State failed to answer fundamental questions about HB 900’s operation. There were approximately 40 instances in which the State either did not know how the law would function or did not have an answer as to the effects of certain provisions.

• Defendants’ appeal fails because the District Court correctly granted preliminary injunctive relief by enjoining the enforcement of HB 900’s Rating Requirements and denying Defendants’ attempts to dismiss the case under jurisdictional and sovereign immunity grounds.

• The District Court first correctly held that Plaintiffs had Article III standing because HB 900 causes imminent constitutional, reputational, and economic injury to Plaintiffs by compelling them to review and rate every book ever sold to a public school as a condition of future sales using vague definitions and government criteria with which they disagree. Plaintiffs’ claims are ripe because these statutory requirements impose immediate hardship on Plaintiffs by compelling them to speak the government’s message and causing them to incur significant harm. And Defendants are not entitled to sovereign immunity because their enforcement power fits squarely within the Ex parte Young exception, 209 U.S. 123, 155-56 (1908).

• The District Court then correctly held that Plaintiffs are likely to succeed on the merits because HB 900 is unconstitutional for at least three reasons. First, HB 900 violates Plaintiffs’ First Amendment right to be free from unwanted compelled speech requiring them to express government messages with which they disagree or face punishment, which is barred under 303 Creative LLC v. Elenis, 600 U.S. 570 (2023). Second, HB 900 is unconstitutionally vague because it contains unclear directions based on confusing definitions and fails to take into account the critical third prong of the Miller v. California test, which requires a consideration of whether the material “taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U.S. 15, 24 (1973). Third, HB 900 is an unconstitutional prior restraint because it grants the government unbridled discretion, without judicial oversight, to prohibit future sales of constitutionally protected books to schools with no opportunity to appeal final determinations or have them reviewed judicially. The District Court also properly rejected Defendants’ alternative theories of why First Amendment protections do not apply, determined that Plaintiffs would suffer irreparable injuries unless HB 900 was enjoined, and found that the balance of equities and public interest favored injunctive relief.

• To be clear, Plaintiffs do not assert that the government is obligated to purchase anything from Plaintiffs. Nor do they allege a First Amendment right to allow “sexually explicit” books in schools or prevent their removal. Instead, Plaintiffs seek to exercise their First Amendment right to distribute books without being required to comply with the onerous Rating Requirements of HB 900.

• This Court should affirm the District Court’s well-reasoned Order enjoining HB 900 because the statute is clearly unconstitutional and allowing the law to take effect would irreparably injure Plaintiffs and the public...Plaintiffs respectfully request that the Court lift the administrative stay, deny the Motion to Stay, and affirm the preliminary injunction and denial of the Motion to Dismiss.

The complete brief can be found here.