Court proceedings have been unfolding quickly with regards to HB 900, the Restricting Explicit and Adult-Designated Educational Resources (READER) Act. District Judge Alan Albright, Western District of Texas, Austin, enjoined the State from enforcing HB 900 on August 31 and released his written order on September 19, 2023.
The court held that the State of Texas may not delegate categorization of books to Third Parties, such as the plaintiffs in the case, in the manner employed by the legislation. The court noted that requiring book vendors to categorize books as “sexually relevant” or “sexually explicit” would “impose this extraordinarily difficult and prohibitively expensive burden solely on third parties with totally insufficient guidance” while leaving the Texas Education Agency the power to unilaterally alter any decision made by the third party. Also, the third party would have no right to appeal the state’s decision if it were to disagree with the TEA rating. Judge Albright summarized in his order, “For this and other reasons, the Court finds that this law violates the Free Speech Clause of the First Amendment.”
The court concluded that children should be protected from obscene content in the school setting but READER (HB 900) “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. Nothing in the injunction granted here prevents the state from using viable and constitutional means to achieve the state’s goals.” The Judge’s order may be read in its entirety here.
The state appealed and this week, the United States Fifth Circuit Court of Appeals issued an administrative stay of the district court injunction of HB 900, pending further action from the appellate court.
We will continue to monitor legal proceedings and rulemaking for this legislation.
See the Fifth Circuit administrative stay order in its entirety here (PDF).