The Good News Is The Bad News

NEW: In a surprising decision, the conservative 5th Circuit blocks Texas from enforcing book rating law, agreeing with booksellers that HB 900 violates their 1A rights. via @TexasTribune https://t.co/hVWm1j0elD

— William Melhado (@williammelhado) January 17, 2024

One if my friends, owner of my favorite bookstore, was one of the plaintiffs in this case. The law was so bad even the 5th Circuit couldn’t uphold it.

Not that they didn’t try:

Wednesday’s decision was somewhat surprising since the appellate court blocked the lower court’s ruling in November. Addressing the reversal, Judge Don Willett with the 5th Circuit wrote that a “different panel of this court” had granted the state’s appeal to block that ruling.

So here’s what the case is about:

The law requires vendors to rate all their books and materials for appropriateness, based on the presence of sex depictions or references, before selling them to school libraries. The law’s definitions of sexual conduct lean on state criminal statutes that are somewhat vague and open to interpretation to outline what might be considered “sexually explicit” or “sexually relevant” content. 

“The ratings [HB 900] requires are neither factual nor uncontroversial,” the court’s ruling read. 

The law requires booksellers to submit ratings of materials to the TEA for review, which the state can correct and then publicly post online. The appellate court agreed with the vendors’ argument that the rating system violates their free speech protections and amounted to compelled speech that forced vendors to support a certain point of view. 

The court also agreed that complying with the law would be an undue economic burden on the vendors.

Really, how hard was that? There were no guidelines, there were no definitions, just an instruction that the booksellers to schools determine whether or not every book it has for sale to schools, or would be selling as new books are published, would have to be reviewed and submitted to the Texas Education Agency and NOT sold to schools until approved. Which would be a nightmare for schools and an impossible burden for booksellers.

I’ve seen the ordering process in a bookstore. It involves brief précis of new books, some of which come in as “readers” that staff can read and hopefully recommend. Scrutinizing each and every book for vaguely appropriate content would be physically impossible, and effectively shut down sales to schools.

Which a panel of the 5th Circuit was cool with.

But don’t rejoice too soon:

In December, a Fifth Circuit panel sided with the federal government in holding that Texas likely violated the Rivers and Harbors Act of 1899 by placing a barrier in the Rio Grande. The full court of appeals has now granted rehearing en banc and vacated the panel decision.

Sigh.

— Steve Vladeck (@steve_vladeck) January 17, 2024

Not the same case, but the same possible outcome. I’m sure the Supremes would agree with this panel, ultimately. But this no way to run a railroad.🚞