From today's dissent from denial of rehearing en banc in Book People, Inc. v. Wong, written by Judge James Ho and joined by Jones, Smith, Duncan, and Engelhardt:
States have a profound interest in protecting the innocence of children from various adult activities. We don't let children buy alcohol. We don't let them gamble. They're not supposed to smoke.
We also shield them from sexually explicit materials. Nothing in the First Amendment prevents states from taking steps to shield children from such content. See, e.g., Ginsberg v. New York (1968) ("The well-being of its children is of course a subject within the State's constitutional power to regulate," "justify[ing] … limitations … upon the availability of sex material to minors"); FCC v. Pacifica Found. (1978) ("Bookstores and motion picture theaters … may be prohibited from making indecent material available to children."); New York v. Ferber (1982) ("we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights"); Thompson v. Oklahoma (1988) (in all "50 States," "no one under age 16 may purchase pornographic materials"); see also Pope v. Illinois (1987) (Stevens, J., dissenting) ("As for prohibiting sale or exhibition of sexually explicit material to minors … it has long been established that the State may go beyond the constitutional definition of obscenity.")….
The READER Act should be easy to affirm under these principles. The Act simply prohibits public school districts and open-enrollment charter schools from possessing, acquiring, and purchasing content with sexually explicit material for public school libraries. To facilitate transactions with book vendors, the Act asks vendors to inform the State if a book contains sexually explicit or sexually relevant material before selling it to a school district. It also asks vendors to inform the State of any books containing this material previously sold to a school district. And it directs the Texas Education Agency to post the names of books sold to school districts containing this material.
