After two years of litigation over Texas House Bill 900, a federal judge has granted summary judgment and ordered a permanent injunction to block the mandatory book ratings law. In his October 21 decision, Judge Alan D. Albright of the U.S. District Court for the Western District of Texas, Austin division, wrote that HB 900 “compels speech, is void for vagueness, and is an unconstitutional prior restraint” and that “Plaintiffs’ First and Fourteenth Amendment claims are all successful.”

Book industry plaintiffs celebrated the right to read victory in a joint press announcement. “Today’s decision affirms the constitutional rights of authors, booksellers, publishers, and readers, and protects bookstores from the imposition of an unreasonable law that would have threatened their viability, making it a huge win for Texas businesses,” they wrote. “We thank Judge Albright for a critically important ruling that is clear, concise, and extremely well-reasoned.”

The statement represents Valerie Koehler, owner of Houston’s Blue Willow Bookshop; Gregory Day, interim general manager of Austin’s BookPeople; American Booksellers Association CEO Allison Hill; Association of American Publishers president and CEO Maria Pallante; Authors Guild CEO Mary Rasenberger; and Comic Book Legal Defense Fund interim director Jeff Trexler. They were supported during litigation with amicus briefs filed by the American Association of School Librarians, the Association of University Presses, Barnes & Noble the Educational Book and Media Association, Freedom to Learn Advocates, and the Freedom to Read Foundation.

The plaintiffs filed their complaint in July 2023, after HB 900 was signed into law by Texas Governor Greg Abbott. Titled the Restricting Explicit and Adult-Designated Educational Resources Act, or READER, HB 900 was designed to regulate access to “sexually explicit” or “sexually relevant” materials in public school libraries. Under HB 900, the Texas State Library and Archives, chaired by original defendant Martha Wong, would establish content standards; the Texas Education Agency would oversee the standards; and school vendors including bookstores would be required to comply with the rating system by categorizing all their materials.

Judge Albright’s ruling followed his preliminary injunction of August 31, 2023, which blocked the state’s enforcement of HB 900 one day before it was to go into effect. In January 2024, a three-judge panel of the Fifth Circuit of the U.S. Court of Appeals upheld the preliminary injunction and remanded the case back to the Western District.

According to the October 21 ruling, “READER can and does violate the First Amendment in several ways—the ways READER manages to violate the First Amendment are not mutually exclusive.” For instance, Judge Albright concluded, HB 900 would unconstitutionally compel speech. To do business with Texas public schools, vendors would need to surrender their First Amendment rights and assign ratings to books, regardless of their own beliefs, and books could be “re-rated” by the Texas Education Agency. Under such conditions, “Plaintiffs have no choice but to accept the government’s speech,” the judge wrote.

Book fair providers and public school librarians will note in particular a passage on collection development. “The government has the power to restrict what books its schools purchase, within the confines of the Constitution, and there is meaningful interest in curating content for children,” Judge Albright wrote. “But those powers should be exercised by the state directly—not by compelling third parties” to do so, under threat of losing a commercial opportunity.

The judge deemed the law “void for vagueness” as well, writing that HB 900 requires bookstores “to assign subjective, confusing, and unworkable Rating Requirements,” using a 16-step process, and “encourages ad hoc judgments which can vary from bookseller to bookseller.”

The court also found that bookstores would face irreparable harm if forced to comply with HB 900. “While the parties dispute how much financial strain READER will cause the Plaintiffs, the Court finds that the constitutional and reputational harms alone warrant injunctive relief here,” the judge wrote.

Ultimately, the court enjoined defendant Texas Commissioner of Education Mike Morath and those “in active concert with him” from “applying, enforcing, or attempting to enforce” provisions 35.001, 35.002, 35.003, and the amended education code of HB 900. Though the case is still filed as Book People Inc. v. Wong, Morath is the lone remaining defendant. Former defendants Martha Wong, chair of the Texas State Library and Archives Commission, and Kevin Ellis, chair of the Texas State Board of Education, were dismissed from the case after the appeals process.

Free speech and the bookstore

Former BookPeople CEO Charley Rejsek, who was among the original plaintiffs and now directs the literacy organization Put It in a Book, referred PW to interim GM Day. “We are relieved by this news and proud of the work our colleagues in the book industry have done,” Day told PW, “and we will continue to be proponents of our constitutional rights as a bookstore.”

“We are thrilled at the shop to learn about the judge’s decision,” agreed Blue Willow’s Koehler. “We will continue to help readers find great books.”

Authors Guild CEO Mary Rasenberger described the order as a necessary defense of intellectual freedom. “The government tried to force booksellers and publishers to become agents of state censorship, rating books according to unconstitutionally vague standards and then forcing them to adopt the state’s own ratings as their speech,” Rasenberger wrote to PW. “The law would have taken many books off shelves, with no meaningful appeal and no consideration of a work’s educational value. The court recognized what we’ve argued all along: while there are constitutional ways to give parents input into their children’s education, READER’s forced ratings, government overrides, and prior censorship wasn’t one of them.”

At EveryLibrary, executive director John Chrastka said that “the injury to the businesses is a material component that shouldn’t go underdiscussed” in the book industry. “Government overreach into that sector could have been ruinous.”

The ABA likewise cheered the decision as “good news for Texas readers, schools, and bookstores,” while noting that “the Judge did not take up Plaintiffs’ request to consider the constitutional implications of the READER Act’s definitions, which have since been echoed in library legislation in Texas (HB 183).” HB 183, introduced last November, would permit parents to request review of library material, and it too targets “sexually explicit” material. Judge Albright expressed that HB 183 may be subject to future legal challenges, but because it does not compel vendors’ speech, it “does not function in the same unconstitutional manner that READER would.”

CBLDF’s Trexler acknowledged that other censorship battles are simmering and that the Texas Commissioner of Education may file a second appeal to the Fifth Circuit. But, he said, “I’ll take the victories where we can get them. This case gets at the heart of what people in comics have been concerned about, because HB 900 is essentially a 21st-century Comics Code. Having to describe books as ‘sexually explicit’ affects the distribution and perception of those books.”

“Graphic novels are a critical part of literacy today,” Trexler continued. “If this law were to be enforced, we’d see graphic novels and manga get swept up in the legislation.” He cited attempts to ban Jerry Craft’s New Kid and its sequels, along with widespread censorship of graphic narrative adaptations such as Ari Folman and David Polonsky’s Anne Frank’s Diary and Margaret Atwood and Renee Nault’s The Handmaid’s Tale.

The plaintiffs and defendant express a common wish to protect young people, albeit through radically different means. Judge Albright called this goal “a good and noble one,” but said the state was pursuing it in an unconstitutional manner. “The Court agrees with Defendant’s premise that Texas has an interest in safeguarding children against sexually explicit material—especially materials purchased with public funds for public schools,” the judge wrote. “But the Court cannot agree with Defendant’s assertion that Plaintiffs’ First Amendment rights are not violated by READER.”