Citing book vendors’ First Amendment rights, 5th Circuit blocks sexual-content rating requirement

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First Amendment Citing book vendors' First Amendment rights, 5th Circuit blocks sexual-content rating requirement

By Debra Cassens Weiss

January 18, 2024, 12:33 pm CST

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The Restricting Explicit and Adult-Designated Educational Resources Act, or the READER law, requires vendors to give books one of three ratings: sexually explicit, sexually relevant or no rating. Image from Shutterstock.

Texas can’t enforce a law requiring book vendors who want to sell to public schools to issue sexual-content ratings for library materials, a federal appeals court ruled Wednesday.

The 5th U.S. Circuit Court of Appeals at New Orleans said the law likely violates the First Amendment rights of book vendors.

Reuters, NBC 5 Dallas-Fort Worth and the Texas Tribune are among the publications that covered the Jan. 17 decision, which upheld a preliminary injunction blocking the law. A Jan. 17 press release is here.

The law is known as the Restricting Explicit and Adult-Designated Educational Resources Act, or the READER law, according to the panel opinion by Judge Don Willett, an appointee of former President Donald Trump.

The law requires vendors to give books one of three ratings: sexually explicit, sexually relevant or no rating. Definitions are included in the law. Books rated sexually explicit can’t be sold to public school districts and must be removed from library shelves. Books rated sexually relevant can’t be checked out without parental consent. The Texas Education Agency is allowed to review the books and notify vendors when they are required to adopt corrected ratings.

The plaintiffs were two Texas bookstores, three trade groups and the Comic Book Legal Defense Fund. They argued that the READER law unconstitutionally compels their speech. The 5th Circuit said the plaintiffs were likely to succeed on that claim.

“The 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,” Willett wrote, quoting from a 1977 opinion.

“Here, plaintiffs ‘wish to stay silent and not express any public view on the appropriateness of various books.’ But the law requires plaintiffs to ‘either speak as the state demands’ or suffer the consequences,’” Willett said, using the words of a 2023 decision.

The 5th Circuit did not address other provisions of the law that require state school officials to adopt standards for school library collections that ban harmful, sexually explicit, “pervasively vulgar” or “educationally unsuitable” material.

Also joining Willett’s opinion were Judge Jacques L. Wiener Jr., an appointee of former President George H.W. Bush, and Judge Dana Douglas, an appointee of President Joe Biden.

The case is Book People Inc. v. Wong.

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