Appeals court blocks Texas from enforcing book rating law

Editor's note: In a split vote, the full panel of the 5th U.S. Circuit Court of Appeals declined on April 16 to reconsider this case. Five judges issued a dissent saying they would have liked the court to re-hear it. The previous ruling, reported below, remains in effect.

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The 5th U.S. Circuit Court of Appeals blocked the Texas Education Agency on Wednesday from enforcing a state law requiring booksellers to rate the explicitness and relevance of sexual references in materials they sell to schools.

The appellate court, one of the most conservative in the nation, sided with booksellers who sued the state after claiming House Bill 900 violated their First Amendment rights. The court affirmed a lower court’s decision to prevent TEA Commissioner Mike Morath from enforcing the 2023 law.

Wednesday’s decision was somewhat surprising since the appellate court blocked the lower court’s ruling in November. Addressing the reversal, Judge Don Willett with the 5th Circuit wrote that a “different panel of this court” had granted the state’s appeal to block that ruling.

The plaintiffs — which include bookshops in Houston and Austin, the American Booksellers Association, the Association of American Publishers and the Authors Guild — argue that it is logistically impossible and cost-prohibitive to comply with the law.

The law requires vendors to rate all their books and materials for appropriateness, based on the presence of sex depictions or references, before selling them to school libraries. The law’s definitions of sexual conduct lean on state criminal statutes that are somewhat vague and open to interpretation to outline what might be considered “sexually explicit” or “sexually relevant” content.

“The ratings [HB 900] requires are neither factual nor uncontroversial,” the court’s ruling read.

The law requires booksellers to submit ratings of materials to the TEA for review, which the state can correct and then publicly post online. The appellate court agreed with the vendors’ argument that the rating system violates their free speech protections and amounted to compelled speech that forced vendors to support a certain point of view.

The court also agreed that complying with the law would be an undue economic burden on the vendors.

“This decision is a win for Texas and a win for free speech. The book rating system in HB 900 is a clearly unconstitutional requirement that would irreparably harm booksellers across the state,” said Laura Prather, a lawyer for the plaintiffs in a statement. “We’re thankful the Fifth Circuit recognized it would require booksellers to speak against their will and the importance of blocking it from taking effect.”

The Office of the Attorney General did not respond to a request for comment.

Wednesday’s decision did not completely block the law. Still in effect is a component of HB 900 that requires the Texas State Library and Archives Commission to create new library collection standards. The new rules must prohibit school libraries from acquiring or keeping sexually explicit materials.

Plaintiffs originally sued Keven Ellis, chair of the Texas Board of Education, and Martha Wong, chair of the Texas State Library, alongside Morath. The 5th Circuit on Wednesday dismissed claims against Ellis and Wong because those officials don’t have purview over the book ratings that the court found to be unconstitutional.

Supporters of HB 900 have argued the law restores parents' rights to protect their children from certain themes, rather than exposing them to potentially inappropriate material in publicly funded books. Book bans have gained steam across the state since the Texas law was passed, The Texas Tribune and ProPublica found.

Opponents, which include librarians, literacy advocates and other parents, say laws like HB 900 often target books and materials that explore sexuality and race — topics that, while uncomfortable to some, they say are important for youth who may not typically see their lived experiences reflected in literature.