AUSTIN, Texas – One of the most controversial laws to come out of the Texas legislature this year is now before a federal appeals court after an Austin-area judge argued that the law was unconstitutional.
The policy in question, known as the READER Act, HB 900, would require booksellers to “rate” each book they give to schools based on its sexual content, with books labelled “sexually explicit” banned from schools.
Booksellers, including Austin’s BookPeople, sued the state over the implementation of the law, which was due to take effect in September. A federal judge in Austin issued a temporary restraining order, only to have it stayed by a federal appeals court.
On Wednesday, lawyers for the state and the booksellers suing the state argued the law before judges in Louisiana’s Fifth Circuit Court of Appeals.
The judges found that the state had the authority to “constitutionally restrict sexually explicit material in school libraries,” which Laura Prather, an attorney with Haynes Boone arguing on behalf of the vendors, agreed with, but only on the basis of the definition of “sexually explicit,” which she argued the law’s definition did not follow federal precedent.
“This law is model legislation for the rest of the nation,” Rep. Jared Patterson, R-Frisco, the bill’s original author, wrote on social media. “However, this law is currently under attack. The [ACLU of Texas] and other far-left liberal organisations believe that children have a First Amendment right to pornographic material in an environment where parents aren’t present. Their view flies in the face of past Supreme Court precedent regarding the FCC’s guidelines for television and radio, and the oft-misquoted PICO case. On Wednesday, the 5th Circuit Court of Appeals will take up the case.
In an interview with CBS Austin, BookPeople CEO Charley Resjek said it would be “physically impossible” to rate every book distributed to school districts.
“It requires all of the vendors that supply books to public schools to know and read and evaluate all of the books that we have sold to public schools in the past and in the future,” Resjek said. “And at BookPeople, especially since we’re a 53-year-old company, we really don’t have any records of what we’ve sold to schools in the past, and we have no way of knowing what’s currently in circulation.”
If the law is enacted following the legal challenge, booksellers would be required to share their lists of “sexually relevant” or “sexually explicit” books by April 2024, in preparation for the next school year in the autumn.
“It’s hard to know exactly how the Fifth Circuit is going to handle this,” said Joshua Blank, research director at the Texas Politics Project. “I think it raises the question of whether the courts are starting to look at the role of the state in these issues as they relate to children in a more expansive way than they might if we were talking about legal adults.”