From today's Fifth Circuit decision in Book People, Inc. v. Wong, written by Judge Don Willett and joined by Judges Jacques Wiener and Dana Douglas:
In an effort to keep material deemed inappropriate off Texas public- school bookshelves, the Texas Legislature in 2023 passed the Restricting Explicit and Adult-Designated Educational Resources Act (READER). In short, the Act requires school book vendors who want to do business with Texas public schools to issue sexual-content ratings for all library materials they have ever sold (or will sell), flagging any materials deemed to be "sexually explicit" or "sexually relevant" based on the materials' depictions of or references to sex….
The Act requires vendors to give all library material a rating of "sexually explicit," "sexually relevant," or "no rating." …
"Sexually explicit material" means any … material, … other than library material directly related to the curriculum required under Section 28.002(a), that describes, depicts, or portrays sexual conduct, … in a way that is patently offensive ….
"Sexually relevant material" [is defined the same way, but without the "patently offensive" requirement -EV].
The Penal Code, in turn, defines "sexual conduct" as "sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola."And it defines "patently offensive" as "so offensive on its face as to affront current community standards of decency."
Once the vendors have rated the material, they must then submit to the Texas Education Agency (TEA) a list of the material rated as sexually explicit or sexually relevant. Material rated sexually explicit may not be sold to school districts and must be removed from library bookshelves. And vendors must issue a recall for all material that is rated sexually explicit and in active use by a school district. Material rated sexually relevant may not be "reserve[d], check[ed] out, or otherwise use[d] outside the school library" without written parental consent…. TEA must … post "each list submitted … in a conspicuous place on the agency's Internet website as soon as practicable." …
READER provides the following "rating guidelines" for vendors to follow in determining whether material is sexually explicit or sexually relevant. [Details omitted. -EV] … Once vendors submit their ratings, TEA "may review" the "material sold by a … vendor that is not rated or incorrectly rated by the vendor." If TEA undertakes this review and determines that a different rating, or no rating at all, should be applied to certain material, … the vendor then [must] "… rate the library material according to the agency's corrected rating …." ….
The court upheld a preliminary injunction blocking the law. It began by concluding that READER compels private speech, and doesn't just involve government speech (the way a government-administered rating system likely would); an excerpt:
