After Inexplicably Allowing Unconstitutional Book Ban To Stay Alive For Six Months, The Fifth Circuit Finally Shuts It Down

Texas is in a close race with Florida for the title of “Most Unconstitutional Laws Enacted.” Florida’s legislators will probably end up taking this title because they seem crazier/more productive than their counterparts in Texas.

But let’s not encourage those Texas underachievers! These are bad laws written by worse people. They’re almost universally incapable of surviving a constitutional challenge.

Unless they’re passed in the Fifth Circuit. Then all bets are off. The Fifth Circuit Court of Appeals has upheld obviously unconstitutional laws twice in recent months. And six months ago it chose to allow Texas to enforce its unconstitutional book ban simply by refusing to keep an injunction put in place by the district court.

It’s not like it was a close question. The lower court’s ruling explained in detail how the state’s READER Act (Restricting Explicit and Adult-Designated Educational Resources) violated the Constitution so hard it could not possibly be allowed to remain in force. This decision was appealed and, last September, the Appeals Court inexplicably decided the law could be enforced until it finally got around to examining the case.

Nearly six months later, the Appeals Court has finally handed down its ruling. And it’s not even a close question here, either, which makes this delay all that more frustrating.

The law requires book vendors selling to school libraries to issue sexual-content ratings for all books they have sold or will sell. Books containing “sexually explicit” or “sexually relevant” content must be flagged as such, subjecting them to possible removal or restricted access.

Books flagged by the new rating system must be submitted to the Texas Education Agency (TEA), which enforces the restriction/removal process. Any books sold in the past that make the list must be “recalled” from the educational institutions that purchased them. The law also requires booksellers to list flagged books “in a conspicuous place on the agency’s Internet website.”

Clearly the law violates the First Amendment. Not only is it prior restraint (because it deters booksellers from offering certain books for sale), it’s also compelled speech — the forcible application of ratings to books in order to continue selling books to school libraries.

As the book vendor plaintiffs point out, sales are pretty much nonexistent as schools have paused all purchasing until the rating system is in place. They also point out it could cost several million dollars to vet all past and present books carried by these vendors — something that will likely put at least one vendor (Blue Willow) completely out of business.

The state argued that even if those allegations are true, the government can still violate the First Amendment because the “commercial speech” exception applies. While it’s true commercial speech can be regulated to ensure consumers receive factual and accurate information, that’s not what’s happening here. From the opinion [PDF]:

According to the State, Zauderer applies here because the library-material ratings are “purely factual and uncontroversial” like a nutrition label; they simply tell the buyer what they are receiving rather than pass judgment or express a view on the material’s appropriateness for children. We disagree. 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.

And while “thinking about the children” can sometimes be a cognizable government interest demanding a limited incursion on constitutional rights, this ain’t it, Texas.

We agree with the State that it has an interest in protecting children from harmful library materials. But “neither [the State] nor the public has any interest in enforcing a regulation that violates federal law.”

The long-paused injunction is back on. As the court notes, there’s very little chance the state of Texas will be harmed by being unable to enforce a statute that “likely violates the First Amendment.” It goes back down to the court that got this right the first time. And, with any luck, this temporary injunction should swiftly be made permanent.