Fifth Circuit rules that HB 900 violates First Amendment
By Brant Bingamon, 1:25PM, Fri. Jan. 19, 2024
Maybe Texas Republicans aren’t that good at writing censorship laws. On Wednesday, the most conservative federal appeals court in the country overturned House Bill 900, a law passed this spring that would ban books from public school libraries.
HB 900, also called the READER Act, requires booksellers to analyze every book they sell to schools and rate each one for sexual content. The Fifth Circuit Court of Appeals ruled that the bill, set to go into effect in April, likely violates the First Amendment and ordered the state not to enforce it.
In the run up to passage of HB 900, Republicans complained vociferously about what they described as pornography in public schools. But instead of empowering a state authority like the Texas Education Agency to create a censorship department, they foisted responsibility for identifying books with sexual content onto booksellers. Their law stipulates, among other things, that booksellers must write detailed analyses of the content of the books they sell, slapping labels of “sexually explicit,” “sexually relevant,” or “no rating” on them.
Booksellers have said that complying with the law would bankrupt them. Austin’s BookPeople, Houston’s Blue Willow Bookshop, and several book associations filed a lawsuit in July arguing that HB 900 is cluttered with a disarray of incomprehensible requirements, that it would make booksellers say things against their will (by forcing them to apply the ratings), and that it would stop them from saying things they haven’t yet said – all in violation of the First Amendment. A district court judge agreed in September, and now the Fifth Circuit has agreed as well.
In its ruling, the court dismantled several arguments from the Attorney General’s office, among them that the ratings weren’t protected by the First Amendment because they would be “purely factual and uncontroversial, like a nutrition label.”
“We disagree,” the court ruled. “The ratings READER requires are neither factual nor uncontroversial. The statute requires vendors to undertake contextual analyses, weighing and balancing many factors to determine a rating for each book. 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.”
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