United States District Court for Western District of Texas (Austin Division): While considering the issue that whether the State of Texas via HB900 law, is allowed to delegate the categorization of books based on the level of sexual content in each book to booksellers (third parties) like the plaintiffs in the instant case; Alan D. Albright, J.*, answered the question in negative stating that Texas chose not to have anyone employed by the state at any level make the initial evaluation of the sexual content. It chose instead to impose this extraordinarily difficult and expensive burden solely on third parties (booksellers) with totally insufficient guidance. It was pointed out that no matter how much time and expense the third parties invest in complying, the State (through the Texas Education Agency) retained the power to unilaterally alter any decision made by the third party.
Furthermore, the State denied third parties the ability to appeal if they disagree with the State’s ratings of any book. Therefore, it was held that the State of Texas impermissibly seeks to compel an individual or a corporation to create speech that it does not wish to make, and in addition, in which it does not agree with, and that this law violates the Free Speech Clause of the First Amendment.
Background: State of Texas identified an important issue of what books should be provided and accessible to students in public school libraries in grades K-12 especially vis-à-vis the sexual content of the books that are available.
To address this important issue, the Texas Legislature passed HB900, also known as READER, earlier this year. If the law were to go into effect, it would require among other things the creation of standards for “sexually explicit” and “sexually relevant” materials by the Texas State Library and Archives; and for booksellers to categorize any books they sell or have ever sold to schools according to those standards and issue a recall for any “sexually explicit” materials that they sold to schools.
The intent of the law is to categorize and restrict books based on the level of sexual content in each book. By doing that, the State will determine which books are to be purchased by public school libraries and their accessibility by the students with or without parental permission.
After submission of the lists, the Texas Education Agency (TEA) can review the ratings and notify the vendor if any library material the vendor sells is not rated or, in the sole opinion of the TEA. However, the legislation does not provide deadline for the TEA to submit their substitute assessments, nor does it provide any instructions as regards to reviewing the ratings provided by the vendor. The statute provides the TEA unlimited authority to undermine every minute of the work that the vendors put into rating books without providing any blueprint for the standard that will be employed for this review.
The plaintiffs objected stating their concerns that the State’s coerced revised ratings will be interpreted by the public as Plaintiffs’ own independent rating when they are, in fact, speech compelled by the State.
Upon perusal of the facts and the legislation in question, the Court wondered that why would the Legislature impose such costly and burdensome requirements on plaintiffs to comply with a law which it did not intend for defendants to enforce? The Court expressed its doubt as to how defendants can argue that there is no “credible threat” of compelled speech, a claim that requires TEA and plaintiffs to align on every single rating as to every single book.
The Court noted that by requiring Plaintiffs to undergo the extensive process of reviewing and rating books according to the standards outlined in READER, and then to re-rate any books in accordance with TEA’s “corrected” ratings with which plaintiffs disagree, defendants cannot persuasively maintain that there is no imminent injury.
The Court pointed out that the plaintiffs’ claims are ripe because they raise constitutional questions under the First and Fourteenth Amendment, which are pure questions of law. The Court opined that plaintiffs present a compelling argument that vendors will be unable to sell books to public schools without issuing ratings once READER goes into effect.
The Court pointed out that READER is not government speech at least in one or more substantial and integral parts. The statute requires that library material vendors submit initial ratings to the State. So, if TEA were to elect not to review a list at all, the only government action involved would be limited to placing an unedited list, prepared exclusively by the vendors, online. And a reviewed and corrected rating performed by the TEA does not undo the fact that plaintiffs were forced to speak an initial rating.
The Court stated that its focus is on “whether the State of Texas, by requiring the plaintiffs to perform a rating they would rather not perform and give ratings to books when they would wish to remain silent”, has violated the First Amendment, which protects the rights of an individual to speak, or not speak, his mind without interference from the government. The Court was of the view that the government has failed to articulate any legitimate reason for requiring the vendors speak at all. The government has the power to do the contextual ratings for the books itself. The government has the power to restrict the ability of its school district as to which books it may purchase. The exercise of these powers must comply with the requirements of the constitution, but these are powers that should be exercised by the state directly and not by compelling third parties to perform it or risk losing any opportunity to engage in commerce with the school districts.
The Court further stated that that the speech engaged in by the vendors is not commercial in nature, so the commercial speech exception does not apply. The court was of the view that the instant matter is controlled by the holding in 303 Creative LL.C v. Elenis, 2023 SCC OnLine US SC 51, where the SCOTUS found that the creation of websites for profit had a right to full First Amendment protection and specifically stated that speakers do not shed their First Amendment protections by employing the corporate form to disseminate their speech.
The Court also stated that the legislation is vague. Furthermore, it was stated that, “The Court expressly determines that a statute that requires private third parties to perform the scrutiny and review for this content for every book it has sold or intends to sell is beyond the power that is authorized by the Constitution. The Court notes the extraordinary onerous burden of requiring third parties to provide a single rating for each book regardless of the age of the potential student in a particular library is simply an additional basis for this Court to determine that the statue cannot withstand even the most gossamer of scrutinies”.
Concluding its analysis, the Court stated that State has a strong interest in what children are able to learn and access in schools and surely children should be protected from obscene content in the school setting. “That said, READER 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”.
[Book People Inc. v. Martha Wong, 1:23-cv-00858-ADA, decided on 18-09-2023]
*Order by District Judge, Alan D. Albright