Federal appellate judges will soon determine whether Texas can fully implement a new state law to protect children from sexually explicit content in school libraries.
A three-judge panel of the U.S. Fifth Circuit Court of Appeals heard oral arguments Wednesday from attorneys on both sides as Texas fights a legal challenge by book vendors over regulations within the law.
Book vendors want the judges to reinstate a preliminary injunction granted by a trial court to temporarily stop the state from enforcing the law.
Texas wants the appellate court to extend its stay of the injunction, which would allow the state to begin regulating sexually explicit school library materials while the case is litigated.
The Law
Texas lawmakers passed House Bill 900, also known as the READER (Restricting Explicit and Adult Designated Educational Resources) Act, during this year’s regular legislative session.
State Rep. Jared Patterson (R–Frisco) authored HB 900 in response to months of complaints from parents about age-inappropriate and sexually graphic books found in their children’s campus libraries that school district officials refused to remove.
HB 900:
- Defines “sexually explicit material;”
- Directs the Texas State Library and Archives Commission (TSLAC) to adopt mandatory school library “collection development” standards that prohibit materials identified as sexually explicit, pervasively vulgar, educationally unsuitable, obscene, or otherwise harmful; and
- Regulates library materials sold to schools and requires vendors to rate books containing sexual content as “sexually explicit” or “sexually relevant.” Vendors that fail to comply cannot sell books to Texas schools.
The law’s effective date was September 1, but its various provisions kick in between January 2024 and January 2025.
The Lawsuit
A coalition of book vendors and publishers filed a lawsuit in July challenging HB 900 as unconstitutionally vague and over-broad.
The plaintiffs claim they will suffer “irreparable injury” if required to comply with the law’s book rating system, which they say violates their First Amendment rights.
A federal trial court agreed with the plaintiffs and granted a preliminary injunction to prevent the state from enforcing HB 900.
The state appealed to the Fifth Circuit, which issued an administrative stay of the injunction pending appeal on September 25. Since then, the law has been in full effect.
The Arguments
During Wednesday’s hearing, three circuit judges heard arguments from the state and plaintiffs on whether HB 900 should be implemented while the merits of the case are litigated or if the trial court’s temporary injunction blocking enforcement should stand.
Attorney Kateland Jackson, who argued on behalf of the state, said HB 900 “is not a book ban. Far from it.”
Texas’ new law simply protects parents’ rights to decide what materials their children will read in a public school library. And it promotes the state’s interest in preventing those very same school children from being exposed to harmful, sexually explicit material at taxpayer expense.
Jackson disputed the trial court’s decision on legal issues of standing, ripeness, and sovereign immunity.
Judge Don Willett then prompted her to “leapfrog” to the merits.
She said the plaintiffs’ claims fail because obscenity is not subject to First Amendment scrutiny and the law’s rating scheme does not compel speech.
Judge Willett asked Jackson which “community standards” would govern how vendors categorize books across the entire state.
Jackson said Miller v. California, the case that determined obscene materials are not protected by the First Amendment, allows for statewide community standards.
Jackson noted that the state has not yet had a chance to develop or implement HB 900, adding that “just last year, this court indicated that Texas should have the opportunity to be able to develop and implement its laws before a federal court strikes down those laws.”
“The state would encourage the court to reverse the injunction and remand the case to the district court with instructions to dismiss the plaintiffs’ claims,” Jackson said.
Attorney Laura Lee Prather argued on behalf of the plaintiffs.
Prather said the case is about “booksellers being compelled to speak against their will and being forced to apply imprecise standards to promote the state’s preferred message.”
She countered Jackson’s argument about ripeness, saying “facial challenges are ripe the moment a regulation is passed.”
Judge Willett asked Prather if states can limit students’ access to sexual content; she said yes, but claimed HB 900 contains an “impossibly vague and subjective framework” for doing so.
“They don’t adopt the Miller v. California guardrail of considering artistic, political, literary, and scientific value, and they don’t address considering the work as a whole,” she added.
“Where definitionally [do] you believe the state fell short?” Willett asked.
Prather said the plaintiffs see a problem with what has to be rated (every book ever sold, which she called an “impossible task”) and how to rate books. She said booksellers don’t know how to apply the “16 steps” in the law’s rating guidelines.
She also said out-of-state vendors can’t opine on Texas community standards.
Willett noted that while other states have tried to set standards for keeping sexually explicit material out of public school libraries, “what sets this bill apart is the rather unique method of enforcement: having book vendors directly involved in determining what is appropriate for students.”
He asked Prather if any other states had opted for a similar method of enforcement; she said no, but added that Patterson has indicated he would like to see HB 900 as a model for other states.
Prather concluded, “Unless the injunction is continued and the administrative stay is lifted, irreparable injury in the form of lost First Amendment rights will ensue. In the absence of an injunction, the financial, reputational, and constitutional effects of the required ratings will be irreversible.”
During rebuttal, Jackson noted that the “sexually explicit” definition in HB 900 does comport with Miller v. California.
“There is no requirement that any magic words have to be used in order to show that the statute is constitutional,” she said. “It does actually incorporate the three prongs from Miller. And any concern over that third prong—which is the artistic political, scientific, and literary focus—would presumably be captured in the curriculum exception.”
Federal and state laws already protect children from “harmful” material, which is specifically prohibited by HB 900, and the standard of what is harmful to minors may differ from the standard applied to adults.
“However, once again, we do have to see how the rule-making plays out,” Jackson added.
Amicus Briefs
Several amicus briefs were filed with the appellate court.
Most opposed HB 900, with a variety of left-leaning groups claiming the law “bans books.”
American Library Association affiliates, the Freedom to Read Foundation and the American Association of School Libraries, filed one of the briefs. Those groups believe readers of any age should have access to any materials they choose regardless of the content.
Other briefs opposing the state’s regulation of sexually explicit materials in school libraries were filed by the ACLU of Texas, PEN American Center, the National Coalition Against Censorship, and the Texas Speech Communication Association. Another coalition of book sellers and publishers including Barnes & Noble and Penguin Random House also filed an amicus brief.
Patterson submitted a supporting amicus brief citing multiple examples of explicit content found in Texas public schools.
Patterson’s brief argued that HB 900’s standards section should be enforced even if the courts throw out the vendor regulations.
The Standards
As Jackson noted in her arguments, the trial court did not enjoin the section of HB 900 mandating new library collection development standards.
TSLAC drafted new standards in August and shared the draft with the State Board of Education (SBOE) for review, then published the proposed standards in the Texas Register for a 30-day public comment period, which closed on November 27.
The standards must now be approved by a majority of SBOE members before they are adopted by TSLAC.
The SBOE is holding a special meeting on December 13 to consider public comments and vote on a final version of the proposed standards.
TSLAC will then meet to adopt the final rules by the January 1, 2024 deadline set by HB 900.
The standards will apply to all materials in school libraries, classroom libraries, and online catalogs, and all school districts must adhere to the standards when developing and implementing their library policies.
However, it will still be up to parents to verify that their local school officials are complying with the law.
The Parents
Shannon Ayres is one of the countless Texas parents who supports the protections in HB 900.
Ayres also leads the education division of the advocacy group Citizens Defending Freedom (CDF) in Collin County.
“CDF Collin County has worked tirelessly over the last year and a half to expose the sexually explicit content that is in our school libraries and to highlight the need and advocate for legislation that would protect children from harmful material,” Ayres told Texas Scorecard.
A video of Ayres reading from an explicit book at a Plano ISD school board meeting is cited in Patterson’s amicus brief. She and other local parents have spoken at dozens of school board meetings, pleading with officials to remove inappropriate books from schools.
“This issue is one that all parents, despite political backgrounds or beliefs, should agree on and, in fact, in my experience, do agree on once they are aware of what kind of material we are really talking about,” said Ayres. “Regardless of what happens in this case, CDF will continue working alongside citizens, sounding the alarm and fighting to protect the innocence of our most valuable and vulnerable citizens, our children.
“We have always protected children in this country,” she added. “We have ratings for movies, music with explicit lyrics, and even for video games. Rating books available to minors is no different and we are confident that the Fifth Circuit will agree.”
The Fifth Circuit judges could rule at any time on the state’s appeal of the preliminary injunction.
The case is styled Book People v. Wong. An audio recording of Wednesday’s oral arguments panel can be heard here.
