Lawyers for book sellers argued that the “READER” Act would have imposed impossible obligations on booksellers and limited access to literature.

AUSTIN, Texas — A federal judge has permanently blocked the State of Texas from enforcing a law that restricts the content of school library books.

Passed and signed into law in 2023, House Bill 900  – or the “Reader Act” – aimed to prevent children from accessing certain materials in public school libraries and prohibited vendors from selling material rated “sexually explicit” to schools. In a ruling on Wednesday, a federal judge in Waco said the law is unconstitutional.

House Bill 900 banned public school libraries from acquiring explicit books and other materials. Book vendors would have had to assign ratings to books based on depictions or references to sex. Books that are rated “sexually explicit” will be removed from shelves. Books that reference sex but are part of a required school curriculum would be rated “sexually relevant,” and parental permission would be required for students to check them out.

Book sellers, including BookPeople in Austin, claimed that it was logistically impossible to comply with HB 900 and that the law’s definitions of sexual conduct were vague and open to interpretation.

“It’s a major victory for the First Amendment because it protects the right to read. It protects independent booksellers. It protects them from compelled speech,” Laura Prather, an attorney for the plaintiffs and the chair of the Media Law Practice Group at Haynes Boone, said. “It protects all of our ability to have access to constitutionally protected works, classics and literature that we all learn from.”

Under HB 900, booksellers wouldn’t have been allowed to sell any books deemed sexually explicit to school districts, and districts wouldn’t be allowed to buy from booksellers that don’t use state-mandated ratings to classify the books.

Books that were rated “sexually explicit” would be removed from shelves. Books that referenced sex but are part of a required school curriculum would be rated “sexually relevant,” and parental permission would have been required for students to check them out.

Even if a bookstore did rate a book, the Texas Education Agency could override that rating. If that happened, the bookseller would have to accept the TEA rating as its own to continue selling books.

“One of the biggest problems with these ratings is they didn’t factor in the literary, artistic or political or scientific value of these works, and so they would reach into constitutionally protected works, classics that are part of our educational system could be removed from the bookshelves without any right of review,” Prather said.

In his 24-page opinion, U.S. District Judge Alan Albright, who President Donald Trump appointed, said the book rating system in HB 900 unlawfully compels speech and imposes vague, burdensome requirements based on unclear state guidelines.

“The Court agrees with Defendant that Texas has a strong interest in regulating what children can access in schools and preventing inappropriate content from schools,” Albright wrote. “But READER’s methods are not the way to further that interest.”

Booksellers would have had to apply a 16-step analysis to rate books for school libraries. In his ruling, Albright said the guidelines are not clear and concluded they are “void for vagueness in combination and in their applications.”

“The court said that was an unconstitutional prior restraint, that they shouldn’t have to adopt again somebody else’s views of what a book is rated just to continue to sell books,” Prather said.

Supporters of the law say it’s meant to help protect kids from encountering inappropriate content in school. Critics say the costs of the law could undermine school libraries altogether as vendors pull out of selling books to Texas or use third-party contractors to rate books. 

In court, the state argued that ratings were “government speech” and that First Amendment protections did not apply, but Albright rejected that, saying that READER tries “to compel speech” and violates “vendors’ First Amendment rights.” He said there is a difference between the state directly restricting what books schools can purchase, and what HB 900 would do, which is “compelling third parties to perform it or risk losing any opportunity to engage in commerce with school districts.”

“While READER may seek to achieve a noble and important goal, it cannot do so by compelling Plaintiffs’ speech in both ways the Supreme Court has clearly forbidden,” Albright said.

In July 2023, Blue Willow Bookshop owner Valerie Koehler told KVUE she felt the law, which went into effect in September 2023, was too vague. She was concerned it would put her bookstore out of business because the law would have required booksellers to rate books before selling them to schools, which constitutes a large portion of her business.

In a statement to KVUE on Wednesday, the author of the bill, State Rep. Jared Patterson (R-Frisco), expressed disappointment with the court’s ruling, but said it was an outcome he was anticipating.

“Though I appreciate Judge Albright’s statement that, ‘Texas has an interest in safeguarding children from sexually explicit material,’ I am deeply disappointed by his decision that the State of Texas cannot require a vendor to ensure their products are safe for a child’s consumption in the lone circumstance of selling their products to Texas public schools,” Patterson said.

The state can appeal the ruling to the United States Court of Appeals for the Fifth Circuit in New Orleans. However, any appeal would be an uphill battle because the appeals court has already heard arguments over READER and sided with the bookstores and publishers.

The Fifth Circuit Court of Appeals affirmed the ruling of a lower court, citing that plaintiffs in the case presented a conclusive argument that the law violated their First Amendment rights.

After the three-judge panel on the 5th Circuit Court of Appeals agreed with the district judge that the law unconstitutionally compels speech on the part of book vendors, the full court rejected a request by the state to rehear the case.

While HB 900 is now permanently blocked from taking effect, state lawmakers have taken other action to regulate library materials.

During the most recent legislative session, state lawmakers passed Senate Bill 13 and Gov. Greg Abbott signed it into law. It is aimed at allowing parents and the school board to have more power over what books are picked in school libraries. It will require schools to adopt policies banning “indecent” and “profane” library content and mandate that school districts create a school library advisory council, largely composed of parents, to recommend which books should be added or removed. The law went into effect in September.

Anticipating this ruling may come, Patterson pointed to the passage of Senate Bill 412 by State Sen. Mayes Middleton (R-Galveston), which was passed earlier this year during the regular legislative session. Patterson said it “closes the so-called ‘obscenity exemption’ loophole and holds accountable school personnel, or others, who choose to expose children to harmful explicit content.” SB 412 removed legal protections for adults who provide material to children that could be considered harmful.

It removed the protection for educators, doctors and parents from criminal charges by what is known as an “affirmative defense,” which allows them to say materials were used to teach children. It also eliminated affirmative defenses for those charged with sexual performance by a child, which is when a child is encouraged by an adult to do actual sexual conduct.

“If you expose a child to harmful materials in Texas, you will be held accountable, and now law enforcement has the necessary tools to enforce this,” Patterson said.