Press Release

Fifth Circuit Court of Appeals Affirms That Texas Book Ban Law is Unconstitutional

Court Ruling Affirms Preliminary Injunction Barring Unconstitutional Book Rating Requirements in Favor of the Coalition of Texas Bookstores, National Booksellers, Authors, and Publishers

The United States Court of Appeals for the Fifth Circuit today affirmed 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 in a written opinion issued on September 18, 2023. 

The law would have required 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. 

In affirming Judge Albright’s earlier ruling, Judge Don Willett of the Fifth Circuit Court of Appeals noted that “Plaintiffs have an interest in selling books without being coerced to speak the State’s preferred message,” going on to say that he was “unpersuaded” by the State’s argument that the READER Act does not implicate Plaintiffs’ First Amendment rights.

The Fifth Circuit also agreed with Judge Albright’s preliminary injunction that the plaintiffs were likely to succeed on their First Amendment claims, and “likely to sustain economic and constitutional injuries” if the law remained in effect.

The following are joint remarks from Valerie Koehler, owner of Houston’s Blue Willow Bookshop, Charley Rejsek, the CEO of Austin, Texas-based bookstore, BookPeople, Allison K Hill, CEO of the American Booksellers Association; Maria A. Pallante, President and CEO of the Association of American Publishers; Mary Rasenberger, CEO of the Authors Guild; and Jeff Trexler, Interim Director of Comic Book Legal Defense Fund:

“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.”

Highlights from the Ruling include:

• 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 READER threatens Plaintiffs’ right to be free from compelled speech, Plaintiffs have shown an irreparable injury. They have also shown that they will suffer irreparable economic injury.”

 The full ruling can be found here.