U.S. District Judge Alan D. Albright declared certain provisions of Texas’ READER Act unconstitutional and blocked the state from enforcing it.
House Bill 900—also known as the Restricting Explicit and Adult-Designated Educational Resources Act (READER)—was passed in 2023 and required vendors to rate books sold to Texas schools based on sexual content. The purpose was to ensure schools removed books labeled “sexually explicit” by vendors.
The law was to take effect on September 1, 2023, but the rating provisions were temporarily blocked by the U.S. District Court for the Western District of Texas (Austin Division) before it could be enforced.
Tuesday’s ruling—in the same federal court—permanently blocks the state from enforcing the book-rating provisions of the law, pending appeal.
Background
READER required the Texas State Library and Archives Commission to create standards for “sexually explicit” and “sexually relevant” materials. Booksellers would then have to categorize “any books they sell or have ever sold to schools according to those standards.”
A recall would be performed for any “sexually explicit” books, and “sexually relevant” books could not be checked out by students without parental consent.
Plaintiffs include a number of bookstores, publishers, and booksellers’ associations. Defendants include Commissioner of Education Mike Morath and a variety of other interested parties.
The Decision
Judge Albright agreed with Plaintiffs that READER’s set of requirements for vendors is unconstitutional as it “compels speech, is void for vagueness, and is an unconstitutional prior restraint.”
Defendants had argued that the First Amendment permits reasonable restrictions on speech in public schools “to protect children … from exposure to sexually explicit, indecent, or lewd speech.”
Albright recognized that the state “has a strong interest in what children are able to learn and access in schools, and that children should certainly be protected from obscene content in the school setting.”
However, he found that READER “misses the mark on accomplishing its goal.”
Defendants argued that READER only sets statutory requirements for the State as a consumer of books, rather than regulating the market of all book sales.
The court rejected this characterization of READER, pointing out that it requires Plaintiffs to rate books and accept the Texas Education Agency’s re-ratings.
Albright argued the government cannot “(1) compel speech if the speaker chooses to remain silent, nor can it (2) compel a speaker to adopt the government’s speech.”
He contended that READER’s rating requirements “flagrantly flout both these core constitutional tenets as a matter of law.”
First, Plaintiffs are compelled “to make controversial statements against their will” regarding whether a book is “sexually explicit” or “sexually relevant.” Plaintiffs must assign ratings, even if they would not want to.
Second, Plaintiffs are compelled “to accept the TEA’s ratings as their own, in violation of their sincerely held beliefs.”
Defendants argued that Plaintiffs can avoid compelled speech by avoiding sales to public schools, that vendors are not entitled to bookselling contracts, and school districts are under no obligation to purchase from a particular vendor.
Nonetheless, Judge Albright wrote that “If Texas’s aim was solely to create conditions for the State to purchase books for its public school libraries, it failed to accomplish that with READER.”
Albright further reasoned that the government has the power to do the contextual ratings for the books and restrict what books its schools purchase itself—within the confines of the Constitution.
He contended those powers should be exercised by the state directly—“not by compelling third parties to perform it or risk losing any opportunity to engage in commerce with school districts.”
“While READER may seek to achieve a noble and important goal, it cannot do so by compelling Plaintiffs’ speech in both ways the Supreme Court has clearly forbidden,” wrote Albright.
The Court agreed with Plaintiffs that READER is also unconstitutional for vagueness under the First Amendment, as it fails to provide “explicit standards for applying the law to avoid arbitrary and discriminatory applications.”
The Court also found that “the Rating Requirements are an unconstitutional prior restraint”—meaning they prevent free speech before it occurs.
An appeal from Defendants is widely expected. Plaintiffs may file a motion for attorney’s fees within 14 days of this order.
One section of the law not blocked by the court concerns the required creation of new school library collection development standards. The Texas State Library and Archives Commission adopted new standards designed to protect students from sexually explicit content.
Additionally, Texas lawmakers passed legislation this year aimed at increasing transparency and parental oversight of children’s reading materials.
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