Appeals court allows Texas’ book ban to proceed without explanation

Texas’ anti-LGBTQ+ book ban has been allowed to go into effect by a three-judge panel on the Fifth Circuit Court of Appeals. The appeals court offered neither an explanation nor a ruling on whether the law violates constitutional free speech protections. The plaintiffs in the case are likely to appeal.

The ban, H.B. 900 — also known as the “Restricting Explicit and Adult-Designated Educational Resources” (READER) Act — was signed into law by Texas Gov. Greg Abbott (R) on June 12. It requires booksellers to rate all books sold to schools if they’re either “sexually explicit” (“patently offensive” by vague and undefined community standards) or
“sexually relevant” (with depictions of any sexual conduct).

Related:

Book bans in U.S. schools & libraries increased by 33% this past school year

At the same time, students are leading the fight against book censorship, according to a new report from PEN America.

“Explicit” books would be banned from state schools. “Relevant” ones would require parental permission for students to access. The state can overturn any bookstore’s ratings and ban any bookstores that disagree from selling to state public schools.

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Two Texas bookstores — Austin’s BookPeople and Houston’s Blue Willow Bookshop — filed a lawsuit against the ban along with the American Booksellers Association, the Association of American Publishers, the Authors Guild, and the Comic Book Legal Defense Fund, according to Publisher’s Weekly. The plaintiffs said the law was unconstitutional and placed an undue burden on book vendors.

“The overbroad language of the Book Ban could result in the banning or restricting of access to many classic works of literature, such as Twelfth Night, A Midsummer Night’s Dream, Romeo and Juliet, Of Mice and Men, Ulysses, Jane Eyre, Maus, Anne Frank’s Diary: The Graphic Adaptation, The Canterbury Tales, I Know Why the Caged Bird Sings, and even the Bible,” the plaintiffs said in their lawsuit.

Austin-area federal Judge Alan D. Albright — who was appointed by former President Donald Trump — issued an injunction against the ban on August 31, noting that the demands placed by the law on book vendors are “so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.”

He also noted that state attorneys couldn’t answer questions about the law’s application, writing, “Generally, the government was confused and unaware of how the law would actually function in practice.”

“Here, the government has failed to articulate any legitimate reason for requiring the vendors speak at all,” Albright wrote in his decision. “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, of course, comply with the requirements of the Constitution, but these are powers that should be exercised by the state directly. Not by compelling third parties to perform it or risk losing any opportunity to engage in commerce with the school districts.”

When Abbott signed the law, he said it would ensure that students aren’t exposed to “obscene,” “harmful,” “inappropriate,” or “ideological content.” He also specifically made statements saying that the law should be used against two LGBTQ+-themed books: Gender Queer: A Memoir by Maia Kobabe and In the Dream House by Carmen Maria Machado.

According to a report from PEN America released in April, Texas is one of five states in which book bans were most prevalent during the 2022–2023 school year. The free speech organization found that book bans and censorship in school libraries and classrooms had escalated since its last report in 2022.

“Overwhelmingly, book banners continue to target stories by and about people of color and LGBTQ+ individuals,” the 2023 report stated. During the six-month period covered in the most recent report, 30 percent of the books banned in schools dealt with issues of race and racism or featured characters of color, while 28 percent featured LGBTQ+ characters or themes.

Legal experts from the Human Rights Campaign have said that often conservative states will pass blatantly unconstitutional anti-LGBTQ+ laws in order to excite voter bases and donors, and with the hopes that a legal challenge will eventually compel the Supreme Court to uphold these laws, effectively enshrining discrimination into the national legal landscape.