[April 23, 2024 update: A Texas House member who sponsored the book ban was quoted yesterday (see below) by KWTX in Waco as saying, “[T]his next session the legislators will come back and try and reestablish that.” You can view that remark for yourself at the 6:14 mark in the accompanying video.]

[April 20, 2024 update: The Texas book ban remains largely blocked! The Fifth Circuit court of appeals decided this past Tuesday not to reconsider the January 17 ruling by a panel of three of its judges. As a result of this week’s decision, the State of Texas now has 90 days — until July 15 — to ask the U.S. Supreme Court to revisit U.S. District Judge Alan Albright’s injunction against the law.]

[March 19, 2024 update: Matthew Patin’s extensive Texas Observer article, “The Booksellers’ Revolt” (excerpted below), reports that the State of Texas has until 75 days after February 1 to appeal the Fifth Circuit’s ruling to the U.S. Supreme Court. That would place the appeal deadline on April 16, which happens to be the first day of the Texas Library Association’s annual conference.]

[January 17, 2024 update: The Fifth Circuit court of appeals has upheld a big part of U.S. District Judge Alan Albright’s injunction against the Texas book ban! You can read the full decision here, and excerpts from news coverage beneath the video below.]

[January 9, 2024 update: We’re still waiting on a decision from the Fifth Circuit court of appeals about whether to uphold U.S. District Judge Alan Albright’s injunction against the Texas book ban.]

[December 18 update: Congratulations to booksellers Valerie Koehler and Charley Resjek, plaintiffs in the lawsuit against the Texas book ban, on being named Publishers Weekly‘s 2023 People of the Year!]

[November 30 update: The audio from yesterday’s Fifth Circuit hearing on the Texas book ban is available here.]

[November 29 update: Oral arguments begin today at the Fifth Circuit court of appeals over the Texas book ban, which a federal judge has previously found to be unconstitutional. In September, U.S. District Judge Alan Albright issued an injunction to keep the law from taking effect, but the Fifth Circuit has stayed that injunction until it can consider the merits of Albright’s ruling and of the State of Texas’ appeal of his decision.]

[November 20 update: Six amicus briefs representing 17 parties opposed to the Texas book ban have been filed with the Fifth Circuit court of appeals. Only one amicus brief was received in support of the ban, it was from the state legislator who wrote the bill, and it was filed late.]

[October 26 update: Michael J. Lambert, one of the plaintiffs’ attorneys in the lawsuit challenging House Bill 900, has published an overview of the case as well as the broader free-speech landscape, “Federal Court Strikes Down Texas Book Ban, but Constitutional Challenges Remain Across Country.”]

[October 10 update: Publishers Weekly has continued to regularly cover the Fifth Circuit court of appeals’ consideration of U.S. District Judge Alan Albright’s injunction against the book ban, including the setting of a November date to hear the State of Texas’ appeal of the injunction.]

[October 4 update: The Texas booksellers and other plaintiffs in the lawsuit against the book ban have responded to the state’s appeal of Judge Albright’s injunction against the law — an appeal that has resulted in at least a temporary stay of that injunction.]

[September 27 update: The Fifth Circuit court of appeals is reviewing Judge Albright’s injunction blocking the Texas book ban; in the meantime, the injunction is not in effect. Stay tuned.]

On September 18, 2023, United States District Judge Alan D. Albright issued a written order enjoining the State of Texas from “applying, enforcing, or attempting to enforce” House Bill 900, a.k.a. the Texas book ban, a.k.a. the READER Act. As he states early in the injunction (which you can read in its entirety), “the Court finds that this law violates the Free Speech Clause of the First Amendment.”

In spring 2023, I began compiling news about the most serious anti-library, anti-librarian legislation pending in Texas — primarily about the consideration, passage, and consequences of HB 900, as well as the lawsuit filed against it by booksellers, publishers, and authors. You can read all of that here.

Now that the one resulting law has been enjoined by Judge Albright, I’m starting this new digest to round up information about what happens next.

Please note that I am not an unbiased observer. I am a member of the Authors Guild, one of the plaintiffs in the lawsuit. And on May 11, 2023, I testified against HB 900 before the Texas Senate Committee on Education:

Now, on with the roundup:

“Editorial: Appeals court rightfully guts Texas book rating law,” San Antonio Express-News, April 23, 2024:

The 5th Circuit did vote to let stand another portion of the law establishing statewide library standards that ban “sexually explicit” books in public schools. But this aspect of the law desperately needs clarification.

Last year, the Texas State Board of Education approved new school library standards to help districts comply with HB900. The policy requires every public school district to adopt a policy that prohibits “sexually explicit, pervasively vulgar or educationally unsuitable” material in their library collections.

Some Texas lawmakers have been sounding the alarm that the broad, vague language could result in a ban on a long list of classic literature works, including the Bible. …

There are many avenues to ensure content is age-appropriate. Parents can contact their school libraries and districts to ask for a book to be reviewed. They can have their student opt out of a specific reading assignment and ask for an alternative. If a book is objectionable or uncomfortable, a person can stop reading it.

Booksellers should never be compelled to rate content. Rather, it should fall to school librarians and staff to determine what content is appropriate at various grade levels with a review process should parent or student concerns arise.

“Special Report: Where Texas stands on book bans in school libraries,” KWTX, April 22, 2024:

But with all of the local book bans happening across the state, Texas legislators have been working to pass a law that would create a statewide standard for what books should be banned.

They finally succeeded with House Bill 900, otherwise known as the reader act, which was signed into law by Governor Greg Abbott back in June of 2023 and went into effect on September 1st that same year.

Texas House Representative Doc Anderson was a co-author on this bill. …

Last week, the court of appeals upheld their block, meaning booksellers have yet to be required to rate their own books before selling to schools.

“They were saying that those terms were overbroad, and so we’re in the process now of determining how that’s going to come out and how we would deal with the bill after that did come out,” said Representative Anderson, “this next session the legislators will come back and try and reestablish that, and do away with some of that confusion or make the language more specific so that we can get that out there and allow the parents to have a say in what’s happening”.

“Federal appeals court upholds block on Texas law restricting ‘explicit’ books,” KERA News, April 18, 2024:

Tuesday’s decision from the Fifth Circuit Court of Appeals effectively keeps key portions of House Bill 900 — known as the Restricting Explicit and Adult-Designated Educational Resources, or READER, Act — from going into effect.

“HB 900 is a disastrous bill that would censor books, that would impose censorial regimes on publishers, that would effectively label books as inappropriate for kids, and would have a chilling effect on authors and really impose on student’s right to access important literature,” said Elly Brinkley, a legal fellow with the free speech advocacy organization PEN America. …

“These laws are sort of patently absurd and, on their face are antithetical to First Amendment values,” she said.

“Court won’t reconsider blocking Texas public school book rating law,” Reuters, April 16, 2024:

A divided federal appeals court on Tuesday declined to disturb a ruling that blocked Texas from enforcing part of a law banning sexually explicit books from public school libraries.

The New Orleans-based 5th U.S. Circuit Court of Appeals on a 9-8 vote declined to reconsider a three-judge panel’s January decision that the law violated the U.S. Constitution by requiring booksellers to review and rate books for sexual content before they can sell them to primary and secondary schools. …

Laura Prather, a lawyer at Haynes and Boone for two bookstores and industry groups including the American Booksellers Association and Association of American Publishers that challenged the law, welcomed the ruling.

“This decision makes clear the importance of protecting free speech,” she said in a statement. “It’s a victory not only for Texas but for the fundamental principles of our democracy.”

“The Booksellers’ Revolt,” Texas Observer, March 11, 2024:

To the relief of booksellers and freedom-to-read advocates, the 5th Circuit—often considered one of the nation’s most conservative—upheld a lower court’s temporary injunction against the ratings mandate, finding that it would harm vendors economically and constituted compelled speech.

“We are not persuaded by the State’s characterization of the ratings as a ‘form of consistency review’ that is a ‘purely ministerial task’ instead of an expression of the vendors’ opinion on the subject matter being rated,” the opinion read. “[This] statute requires vendors to undertake a fact-intensive process of weighing and balancing factors to rate library material. This process is highly discretionary and is neither precise nor certain.”

Soon after the decision, [state Rep. Jared] Patterson called on Attorney General Ken Paxton to appeal the decision to the Supreme Court. Texas has 75 days from February 1 to do so. Plaintiffs could seek a decision from the district court to make the temporary injunction upheld by the 5th Circuit permanent, but had not settled on a course of action as of press time. …

Though a win for booksellers, the 5th Circuit’s ruling had indeed sidelined the library standards portion of HB 900, just as the district court had.

“Only the rating system affects Plaintiffs,” the circuit court’s opinion read, and “the library standards are not at issue on appeal.”

The Texas Library Association (TLA) lauded the appeals court’s decision but lamented the standards left in place.

“There’s really just a lot of uncertainty [now],” the TLA’s Shirley Robinson told me.

Carolyn Foote for #FReadom Fighters agreed: “[The new standards are] creating a lot of confusion,” she said. Because TSLAC’s recently adopted standards included the now-defunct provisions about vendor ratings, they were “impossible to comply with.”

Whatever the ultimate outcome of the legislative and legal wrangling, READER has already had a chilling effect on school libraries and librarians who censor themselves to avoid trouble.

“There is a climate of fear and uncertainty, and librarians feel like their jobs are being threatened,” Robinson said. “They are responding in ways that may even be contrary to their training and not ordering certain books or [shelving them] because they’re afraid of who’s going to walk into the library and turn something into a weapon against them.”

“A secret shelf of banned books thrives in a Texas school, under the nose of censors,” National Public Radio, January 29, 2024:

“It does make me nervous.” admitted the Houston teacher with the secret bookshelf. “I mean, this is absolutely silly that I am not free to talk about books without giving my name and worrying about repercussions.”

At some point, she hopes, it will no longer have to be a secret. Earlier this month, the U.S. Court of Appeals blocked part of a recently-passed state bill, known as HB 900, that would have required booksellers and publishers to rate any books sold to schools for sexual content. This was seen as a victory for freedom-to-read activists, but some of them noted to NPR that HB 900 still contains dangerously vague language about material prohibited in school, and no clear guidelines about enforcement.

“I do believe that book banning is going to go away,” the teacher says, firmly. But for now she adds, “I intend for this library to just keep growing.”

“In Major Win, Appeals Court Upholds Block on Texas Book Rating Law,” Publishers Weekly, January 18, 2024:

In a major victory for freedom to read advocates, the Fifth Circuit of the U.S. Court of Appeals on January 17 upheld a lower court decision to block key provisions of HB 900, Texas’s controversial book rating law, finding that the law likely violated First Amendment protections against compelled speech.

In an unequivocal 36-page decision, a three-judge panel of the Fifth Circuit—viewed by many as the most conservative court in the nation—easily dispatched with the state’s key legal arguments (that the plaintiffs lacked standing, that the case was not ripe, and that the plaintiffs’ claims were barred by sovereign immunity) and made it only to the first of the plaintiffs’ multiple constitutional claims—that the mandatory book ratings at the heart of the law represent compelled speech.

“We start and end with the compelled-speech claim because we conclude that Plaintiffs are likely to succeed on the merits of that claim,” the court ruled.

“Appeals court blocks book ban effort,” The Dallas Morning News, January 18, 2024:

The court, in a sharply worded ruling, rejected the state’s contention that requiring booksellers to rate books based on their sexual content is little different from requiring a nutrition label on food.

“We disagree,” the court ruled. The ratings required by the book ban “are neither factual nor uncontroversial. … Balancing a myriad of factors that depend on community standards is anything but the mere disclosure of factual information. And it has already proven controversial.”

Many of the titles taken from libraries in recent years or assailed by conservative state legislators dealt with issues of race, gender identity and sexuality.

“Federal appeals court blocks Texas ban on ‘sexually explicit’ books in public schools,” Houston Chronicle, January 17, 2024:

The 5th Circuit Court of Appeals on Wednesday blocked a new Texas law that requires bookstores to rate books for sexual content and prohibits any deemed “sexually explicit” from the state’s public schools.

A panel of three judges sided with Texas bookstores and national publishing groups that had argued the bill violated their freedom of speech and would be harmful to their businesses. …

Wednesday’s decision was a rare rebuke from the conservative-leaning court — one of 12 that make up the second-highest rung of appellate courts underneath the U.S. Supreme Court. The decision was penned by Circuit Judge Don Willett, who was appointed by former President Donald Trump in 2018.

“Appeals court blocks Texas from enforcing book rating law,” Texas Tribune, January 17, 2024:

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 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.

“Controversial Texas law requiring book sellers to rate books blocked by appeals court,” Austin American-Statesman, January 17, 2024:

The Texas Education Agency could appeal the decision to the U.S. Supreme Court. Otherwise, the case would go back to the district court to proceed with the full hearing about the law.

“Taking a page from Florida advocates, Texans launch Freedom to Read to push back against book bans,” KERA News, January 8, 2024:

The Texas Freedom to Read Project launched in December to counter the statewide surge in book challenges and removals in public school libraries in the state. …

Texas Freedom to Read follows the playbook of Florida Freedom to Read. Both Florida and Texas have seen well-funded political campaigns to pressure local school districts to remove books that broach race and human sexuality. National groups such as Moms for Liberty and local political action committees such as Patriot Mobile and Southlake Families PAC have provided funding and campaign materials for school board races. The 88th Texas Legislature passed House Bill 900, called the READER Act, which would require school book vendors to create and use a rating system to label books “sexually relevant.” …

“It’s unfortunate that Texas needs more advocacy for intellectual freedom,” said Kerol Harrod, a Texas Woman’s University professor in the School of Library and Information Studies. Harrod has spoken at an open forum during a Denton ISD school board meeting to encourage the district to promote academic inquiry and to resist censorship.

“But on the other hand, we do need it, so I’m thrilled to see people stepping up to lead and to help protect our First Amendment rights,” Harrod said.

“An Injunction in Iowa as Missouri and Texas Lawsuits Continue,” School Library Journal, December 30, 2023:

Laws like SF 496 in Iowa, SB 775 in Missouri, and HB 900 in Texas, create significant professional risks for school librarians and other educators in determining which books are permissible. When enacted, these laws are unevenly implemented. Some districts rush to use the law to censor, remove, and erase. There may be more caution in other districts, but these laws have a chilling effect on education and libraries. Pay attention to how local communities and school districts respond to these laws.

SF 496, SB 775, and HB 900 are all currently in the courts.

“SBOE Recap: All the Rubrics and Library Books,” Texas AFT, December 14, 2023:

At the special called meeting of the State Board of Education (SBOE) on Dec. 13, the board discussion focused on HB 1605 requirements, specifically instructional materials review rules, processes, and rubrics, as well as the library collection development policy required by HB 900. …

The board also took up the approval of the Texas State Library and Archive Commission’s collection development policy to align with HB 900. Even though the law is still making its way through the legal system, administrative work related to the bill (like this policy) is being allowed to proceed. The board heard testimony primarily in support of the TSLAC standards.

While Texas AFT remains opposed to HB 900, we expressed general support for these standards because the policy focuses on libraries as a place to foster students’ academic and social development under the guidance of an appropriately certified school librarian. Collection development policies and procedures should be carried out by professional library staff trained in those standards and who are responsible for the selection, acquisition, and revision of library materials.

The policy also clearly states that books cannot be removed due to the ideas contained in the books or due to the attributes of an author or character in the book. These standards were adopted as written; we will have to wait to see what the 5th Circuit Court determines regarding HB 900.

“Texas education leaders move forward with increased school library regulations,” CBS Austin, December 14, 2023:

The Texas State Board of Education almost unanimously voted to implement increased oversight over school library collections and catalogs, while the law passed by the legislature requiring those regulations faces a court challenge.

House Bill 900, known as the READER Act, requires school booksellers to rate each book they give to districts based on their sexual content. It also requires schools to adopt a statewide collection development policy that forbids books in catalogs deemed to be “harmful,” “vulgar,” or “educationally unsuitable.” …

While this is happening, the fate of HB 900 is still up in the air: some Texas booksellers, including Austin’s BookPeople, sued the state for the implementation of this law, saying the requirement to rate each book they give to schools would be virtually impossible to do or keep track of. A federal judge had granted an injunction, but that injunction was stayed while an appeals court took up the case, which was argued in November. No decision has yet been released.

“Federal appeals court questions Texas’ new school library regulations,” The Texas Tribune, November 29, 2023:

Federal appellate judges Wednesday questioned a new Texas law requiring book sellers to rate the explicitness and relevance of sexual references in materials they sell to schools, though it was not clear if the court would allow the regulations to stand.

The 5th U.S. Circuit Court of Appeals judges’ inquiries centered on House Bill 900’s definitions of sexual content and community standards. They came during a hearing in a legal challenge brought by book vendors who argue the law is unconstitutionally broad and vague. …

Texas’ new book law leans on criminal definitions of sexual conduct to outline what amounts to sexually explicit and relevant library content. As the law was being crafted earlier this year, critics said it was too general and vague. On Wednesday, judges joined in questioning the definitions.

“Both sexually explicit, sexually relevant — they talk about material that describes, depicts or portrays sexual conduct. How explicit must a reference be in order to qualify as sexual conduct?” a judge asked the state.

“Fifth Circuit Hears Appeal of Texas Book Rating Law,” Publishers Weekly, November 29, 2023:

At a 45-minute hearing on November 29, lawyers for a coalition of plaintiff booksellers and publishing industry groups told a panel of the Fifth Circuit Court of Appeals in New Orleans that a Texas district court was right to issue an order blocking the state’s controversial book rating law, HB 900, and urged the court to immediately lift an administrative stay that has allowed the law to take effect despite being found unconstitutional.

“Your honors, it’s important to stress that unless the injunction is continued and the administrative stay is lifted, irreparable injury in the form of lost First Amendment rights will ensue,” plaintiff attorney Laura Lee Prather told the court. “In the absence of an injunction, the financial, reputational, and constitutional effects of the required ratings will be irreversible, even if HB 900 is ultimately overturned. This bell cannot be unrung.” …

Although the court has the case on an expedited schedule, it is unclear when a ruling on the merits may come. It is also unclear if if the court might choose to at least lift the administrative stay, which was not issued on the merits, now that the case has been fully briefed, and allow the lower court’s injunction blocking the law to take effect pending a decision on the merits.

“Appeal of Texas Book Rating Law Set for Oral Argument Tomorrow,” Publishers Weekly, November 28, 2023:

After weeks of anticipation, the U.S. Court of Appeals for the Fifth Circuit will hear oral argument on November 29 in the state’s appeal of judge Alan D. Albright’s August 31 decision to enjoin key provisions of HB 900, Texas’s controversial book rating law. In a final reply brief filed late last week, Texas state attorneys insist the appeals court must reverse the injunction and send the case back to Albright with instructions that he dismiss the plaintiffs’ case. …

The appeal before the Fifth Circuit—widely considered to be the most conservative court in the country—is the latest move in the closely-watched litigation over HB 900, and comes after Albright—following two hearings in August—issued and unequivocal 59-page written opinion and order blocking the law. In his opinion, Albright wrote that the burdens placed on vendors by HB 900 are “so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.” And he called the state’s attempt to outsource book ratings to private vendors a “textbook” example of compelled speech.

“The Court does not dispute that the state has a strong interest in what children are able to learn and access in schools,” Albright concluded in his September 19 written opinion. “That said, [the law] misses the mark on obscenity with a web of unconstitutionally vague requirements. And the state, in abdicating its responsibility to protect children, forces private individuals and corporations into compliance with an unconstitutional law that violates the First Amendment.”

“Booksellers, Publishers Urge Appeals Court to Uphold Block on Texas Book Rating Law,” Publishers Weekly, November 14, 2023:

In an appeal brief filed with the U.S. Court of Appeals for the Fifth Circuit, attorneys for a group of booksellers and publishing industry associations argue that a district court in Texas correctly enjoined HB 900—Texas’s controversial book rating law—and urged the court to let the injunction stand.

In a November 13 filing, attorneys for the plaintiffs (two Texas bookstores—Austin’s BookPeople and Houston’s Blue Willow Bookshop—together with the American Booksellers Association, the Association of American Publishers, the Authors Guild, and the Comic Book Legal Defense Fund) succinctly laid out the legal and practical arguments against the “onerous” and “unconstitutional” law, and insisted that district court judge Alan D. Albright was justified in issuing an August 31 preliminary injunction blocking the law.

“To be clear, Plaintiffs do not assert that the government is obligated to purchase anything from Plaintiffs. Nor do they allege a First Amendment right to allow ‘sexually explicit’ books in schools or prevent their removal. Instead, Plaintiffs seek to exercise their First Amendment right to distribute books without being required to comply with the onerous Rating Requirements of HB 900,” the brief states. At its core, the plaintiffs argue, the case is about “whether the government can compel private entities to, at their own expense, make highly subjective, complex determinations about the content of books in violation of their sincerely held beliefs or be barred from distributing constitutionally protected books to public schools.” …

According to a scheduling order, amicus briefs supporting the plaintiffs are due November 17, and the state’s final reply brief is due on November 20. Oral argument is currently set for November 29.

“In Appeal Brief, Texas Defends Controversial Book Rating Law,” Publishers Weekly, November 1, 2023:

In an appeal brief filed with the U.S. Court of Appeals for the Fifth Circuit, Texas state attorneys argue that HB 900—the state’s controversial book rating law—is constitutional, and that district judge Alan D. Albright made “substantive errors” in issuing an August 31 preliminary injunction blocking the law. …

“Plaintiffs are…not entitled to enjoin a state law aimed at protecting children based on a putative First Amendment right to distribute sexually explicit materials to school children without any warning of their contents—let alone to do so at public expense,” the brief argues. “In sum, even if the district court had jurisdiction (and it did not), it erred as a matter of law in granting the preliminary injunction because Plaintiffs have no probability of success in proving that [HB 900] implicates the First Amendment—let alone that [the law] violates any applicable constitutional standard of review.”

In his September 18 written opinion, Albright agreed that the “state has a strong interest in what children are able to learn and access in schools,” but held that with HB 900, the state is “abdicating its responsibility to protect children” by forcing “private individuals and corporations into compliance with an unconstitutional law that violates the First Amendment.”

The Texas appeal also appears to depend heavily on Albright blowing some fairly straightforward legal questions.

“Conroe ISD considers changing book policy to mirror controversial Katy ISD guidelines,” Houston Chronicle, October 25, 2023:

Conroe ISD is considering changing its book policies to align with Katy ISD to define “sexually explicit materials” and allow board members to formally appeal a decision by the district’s book reconsideration committee.

The Conroe school board will revisit the issue at its Nov. 14 meeting.

Trustee Tiffany Nelson, who brought the changes forward based on Katy ISD’s policy, said the changes will put the district in compliance with House Bill 900…

Trustee Datren Williams said the district’s policy has been discussed several times by the board and additional changes were not needed.

“We have had multiple board meetings and a workshop regarding our book policy,” Williams said. “We have discussed this topic ad nauseam. I don’t see any additional value in discussing the topic today. I’m opposed to any additional censorship.”

Williams said the issue with book material is not a widespread public concern noting he has received fewer than 100 emails about the issue.

Williams made two motions one to table the issue and a second to not make any more changes to the book policy. Both motions died for a lack of second.

“How Two Texas Bookstores Are Leading the Fight Against Book Bans,” Texas Monthly, October 16, 2023:

Blue Willow, BookPeople, and the other plaintiffs in the suit argue that HB 900 compels speech from the bookstores in the form of a rating system that they might not agree with. They also contend that the prohibition on allowing bookstores to sell books the State Board of Education may declare “sexually explicit” without judicial review constitutes prior restraint, or censorship that stops speech from being made. Prior restraint has been repeatedly found unconstitutional.

The first court to rule on the lawsuit agreed with the plaintiffs’ arguments. Judge Alan D. Albright, a Waco-based Trump appointee, excoriated the law as he issued an injunction against it in late September (that injunction is currently stayed, pending an appeal from the state). In his ruling, Albright wrote that the decisions regarding which books to find unacceptable have “the enormous possibility if not probability that [they] will be entirely arbitrary and capricious (at best),” and that under this system, bookstores such as Blue Willow and BookPeople “must decide between accepting the state administrative agency[’s] . . . speech as their own or being effectively blacklisted.” The Fifth Circuit Court of Appeals will hear the state’s case on appeal … and the lower court’s ruling has been stayed pending that appeal, which means the law is currently in effect. After the Fifth Circuit hears the case—regardless, potentially, of what it rules—the matter could escalate as high as the U.S. Supreme Court.

“Expedited Appeal in Texas Book Rating Case Delayed by Three Weeks,” Publishers Weekly, October 12, 2023:

Days after setting an expedited schedule to hear Texas’s appeal of federal judge Alan D. Albright’s decision to enjoin HB 900, Texas’s controversial book rating law, the U.S. Court of Appeals for the Fifth Circuit this week set a new schedule delaying oral argument by three weeks.

According to a new scheduling order, the court will now hear oral arguments on November 29, rather than November 8. The state’s appeal brief is now due on October 30; Amicus briefs supporting the state are due November 6; the plaintiffs’ brief is due November 13; amicus briefs supporting the plaintiffs are due November 17; and the state’s final reply brief is due on November 20.

As PW reported, the delay comes after the court granted the plaintiffs’ motion for a continuance, citing a conflict by lead attorney Laura Prather.

“Appeals Court Sets Oral Argument in Texas Book Rating Case,” Publishers Weekly, October 9, 2023:

Days after declining to lift an administrative stay, the U.S. Court of Appeals for the Fifth Circuit has set an expedited schedule to hear the state’s appeal of federal judge Alan D. Albright’s decision to enjoin HB 900, Texas’s controversial book rating law.

According to a scheduling order issued this week, the court will hear oral arguments on November 8. The state’s appeal brief is due on October 20; the plaintiffs reply brief is due on October 30; amicus briefs are due on November 1; and the state’s reply would be due November 3. That schedule could be delayed even longer, however, as the plaintiffs’ lead attorney, Laura Prather, has a schedule conflict. In a motion filed late yesterday (which the state opposes) the plaintiffs have asked the court to move oral argument ideally to the week of December 4, but at least until the week of November 20.

“Appeals Court Lets Texas Book Rating Law Take Effect, Orders Expedited Hearing,” Publishers Weekly, October 6, 2023:

The U.S. Court of Appeals for the Fifth Circuit will let Texas’s controversial new book rating law, HB 900, take effect while an “expedited” appeals process plays out—despite a district court finding the law to be “a web of unconstitutionally vague requirements.”

In a two-line decision issued on October 5, the Fifth Circuit said it would not hear the state’s emergency motion for a stay separately and will instead carry the motion to be heard with the state’s challenge of judge Alan D. Albright’s preliminary injunction on the merits. The court also ordered the appeal to be “expedited to the next available oral argument panel.”

But the appeals court also declined to lift an administrative stay placed on Albright’s order—which was issued by the appeals court without consideration of the merits of the case—a move that effectively gives the state its stay and allows the law to take effect indefinitely pending a resolution of the appeal or further action by the court.

“Schedule Set, but Order Blocking Texas Book Rating Law Still in Limbo,” Publishers Weekly, October 3, 2023:

The U.S. Court of Appeals for the Fifth Circuit has set a tentative schedule to decide whether a judge’s order blocking the state’s controversial book rating law, HB 900, should stand. But an administrative stay issued last week by a separate motions panel of the Fifth Circuit remains in force—meaning that, despite being found unconstitutional, the law is now in effect, putting Texas booksellers in a precarious position. …

Administrative stays are usually brief, and are commonly used to maintain the status quo until an appellate court can more fully consider arguments for emergency relief. The administrative stay issued in this case is indefinite, however, creating the unusual circumstance in which an administrative stay that is not based on the merits could remain in force indefinitely, blocking a carefully considered injunction from taking force, while the motions panel considers whether there should be any stay at all. …

In their October 2 reply brief, the plaintiffs argued that the stay is causing irreparable harm to the plaintiffs and putting Texas booksellers in jeopardy. Furthermore, the plaintiffs argue that denying the stay and allowing the injunction to take effect is the only way to maintain the status quo while the case is litigated, since the law imposes enormous, unprecedented, and, according to the district court, unconstitutional burdens on the plaintiffs.

“Staying the preliminary injunction would radically upend the status quo,” the brief argues. “Plaintiffs would be immediately prohibited from selling books to public schools because they would be unable to review and rate every book ever sold to a public school, as required. To lift the prohibition, Plaintiffs would need to undertake the painstaking process of reviewing and rating hundreds of thousands of books, which would significantly disturb Plaintiffs’ businesses and cause economic injury, the reallocation of significant resources, and the potential closure of independent booksellers throughout Texas. A stay would also require public schools to change the way they store and purchase books and impact public school students’ access to books. Under the status quo as it exists now (and has existed for 170 years)—without Rating Provisions—none of these impingements are present.”

“Appeals Court Temporarily Stays Injunction Blocking Texas Book Rating Law,” Publishers Weekly, September 26, 2023:

A motions panel for the U.S. Court of Appeals for the Fifth Circuit has issued an administrative stay of Judge Alan D. Albright’s September 18 ruling blocking Texas’s controversial book rating law. The temporary hold, which is not based on the merits of the case (and is not uncommon), puts Albright’s preliminary injunction on hold while the Fifth Circuit considers the merits of an emergency motion by the state to stay the injunction, whole or in part, until the appeals court can consider the case. …

It is expected that a motions panel of the Fifth will decide the issue of the stay swiftly.

“Waco-based federal judge rips new Texas library book rating law as unconstitutional,” Waco Tribune-Herald, September 20, 2023:

In the initial complaint, the vendors claim the bill creates an “unconstitutional regime” of compelled speech. It states that the law punishes vendors who refuse to rate books or adopt the government’s ratings by blocking them from selling books and publicly shaming them on the TEA’s website. The complaint also takes issue with the lack of an appeal to TEA designations.

Albright was appointed by President Donald Trump in 2018 to be Waco Division federal judge for the Western District of Texas. He held the hearings in Austin for the Austin division of the district in late August.

Siding with the plaintiffs, Albright writes that provisions put booksellers in an “impossible position” due to the high cost of compliance with issuing ratings. Albright noted that one of the plaintiffs estimated the cost to rate each book to be between $200 and $1,000, plus an additional $4 million to $500 million to read and rate books already sold to districts, well over the total sales of $1 million per year the vendor sees.

Albright also agreed with plaintiffs that the READER Act “fails to inform the public or any Plaintiff whose community standard it is referencing. It is an open question whether this community standard is based on Austin, Texas, or Onalaska, Texas — or any of the more than 1,200 incorporated municipalities across Texas.”

“In a Blistering Opinion, Judge Officially Blocks Texas’s Book Rating Law,” Publishers Weekly, September 19, 2023:

“The Court does not dispute that the state has a strong interest in what children are able to learn and access in schools. And the Court surely agrees that children should be protected from obscene content in the school setting,” Albright concluded. “That said, [the law] misses the mark on obscenity with a web of unconstitutionally vague requirements. And the state, in abdicating its responsibility to protect children, forces private individuals and corporations into compliance with an unconstitutional law that violates the First Amendment.” …

At one point, Albright observed that the burden placed on vendors by the law are “so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.” And he called out state attorneys for their inability to answer basic questions over the course of two hearings. “Generally, the government was confused and unaware of how the law would actually function in practice,” Albright observed, citing “approximately 40 instances during the August 18th hearing (‘Hearing 1’) where the government either did not know how the law would function or did not have an answer as to what the effects of certain provisions were.”

“Texas youth say book bans violate their rights and take away ‘the joy of reading’,” KUT 90.5, September 19, 2023:

In his order temporarily blocking HB 900 from taking effect, U.S. District Judge Alan Albright said even though he agrees students should be protected from obscene content in school, the law “misses the mark on obscenity with a web of unconstitutionally vague requirements.”

He added that the state cannot require book vendors to rate materials based on sexual content, at least not in the way the law currently requires. He said the law does not provide enough guidance and would be “prohibitively expensive” for vendors.

“For whatever reason, Texas chose not to have anyone employed by the state at any level make the initial evaluation of the sexual content,” Albright wrote. “It chose instead to impose this extraordinarily difficult and prohibitively expensive burden solely on third parties with totally insufficient guidance.”

Albright declined the state’s request to let Texas officials continue to develop the new library standards while the law is on hold. He concluded HB 900 ultimately violates the First Amendment.

Plaintiffs, including BookPeople CEO Charley Rejsek, applauded the judge’s ruling, saying the law “imposes impossibly onerous conditions on booksellers, and ignores the vastly different community standards across local communities.”

Soon after the judge released the written order explaining his decision, the state appealed. The case now heads to the Fifth Circuit Court of Appeals.