The Fifth Circuit Court of Appeals rejected a rehearing request on Tuesday in a READER Act case brought by book vendors, upholding a panel’s prior decision, which upheld a preliminary injunction — preventing enforcement of the act — previously granted by the district court.
The ongoing saga surrounding the READER Act — also known as HB 900, a bill passed by the 88th Texas Legislature to regulate collections within public school libraries — may now be headed to the U.S. Supreme Court if its author, Rep. Jared Patterson (R-Frisco), has his way.
The bill requires booksellers to rate their books for appropriateness for children based on their content. While the Texas Education Agency (TEA) claims this entailed a simple administrative task, several bookstores and publishers filed suit against TEA, the State Board of Education (SBOE), and the Texas State Library and Archives Commission on constitutional grounds.
After filing their lawsuit against the various state entities, plaintiffs sought injunctive relief to prevent enforcement of the law while their case was pending, alleging that the READER Act violates their rights under the First and Fourteenth Amendments. The district court granted their motion for a preliminary injunction.
Defendants subsequently appealed the district court’s decision to the Fifth Circuit. A three-judge panel of the Fifth Circuit affirmed the lower court’s granting of the preliminary injunction because, in their opinion, plaintiffs are “likely to succeed on the merits of their First Amendment claim, the State and the public won’t be injured by an injunction of a statute that likely violates the First Amendment.”
Following the panel’s decision, the defendants asked for a rehearing on the issue by the full court, known as a hearing en banc. According to an order issued April 16, the appeals court judges narrowly voted against a hearing en banc — with eight in favor and nine against — effectively upholding the prior three-judge panel’s decision that had been issued.
Reacting to the appeals court’s decision to “[side] with porn-pushing book vendors over Texas kids,” Patterson wrote a scathing statement and implored Attorney General Ken Paxton to file an appeal.
“Any judge claiming the State of Texas cannot require government vendors to ensure they don’t send sexually explicit content to children in our schools is just plain wrong,” Patterson wrote.
Several judges from the Fifth Circuit joined a dissenting opinion, disagreeing with the panel’s decision and stating that the READER Act “simply provides that any vendor who wishes to sell books to public schools must answer certain questions prior to the sale.”
“In short: The business can decline to respond, and the consumer can decline to purchase. That’s not compelled speech — that’s consumer speech,” the dissent reads.
Amongst the public, the issues raised by the READER Act have led to cleavages in some districts in the state.
Those who are against the READER Act tend to equate it with the censorship and book burnings seen in Nazi Germany or the Jim Crow era. For instance, the Harris County Commissioners Court converted the Harris County Public Library system into a “book sanctuary” to protect Texans’ “freedom to read,” as covered by The Dallas Express.
Advocates of the READER Act have pointed to the example of allegedly pornographic books being found on library shelves, such as at Dallas ISD, as proof that children need protection under such measures.
However, the READER Act remains partially intact, as the SBOE adopted new mandatory standards last December mirroring the provisions therein, as covered by The Dallas Express. The 10 rules establish considerable oversight by local school boards and parents while providing guidance for identifying educationally relevant and age-appropriate content.
