Book People, Inc. v. Wong

• Docket Number: 1:23-cv-00858-ADA
• Decision Date: 18 September 2023
• Citation: Book People, Inc. v. Wong, 692 F.Supp.3d 660 (W.D. Tex. 2023)
• Parties: BOOK PEOPLE, INC., VBK, Inc. d/b/a Blue Willow Bookshop, American Booksellers Association, Association of American Publishers, Authors Guild, Inc., Comic Book Legal Defense Fund, Plaintiffs, v. Martha WONG in her official capacity as chair of the Texas State Library and Archives Commission, Keven Ellis in his official capacity as chair of the Texas Board of Education, Mike Morath in his official capacity as Commissioner of Education, Defendants.
• Court: U.S. District Court — Western District of Texas

692 F.Supp.3d 660

BOOK PEOPLE, INC., VBK, Inc. d/b/a Blue Willow Bookshop,American Booksellers Association, Association of American Publishers,Authors Guild, Inc., Comic Book Legal Defense Fund, Plaintiffs, v. Martha WONG in her official capacity as chair of the Texas State Libraryand Archives Commission, Keven Ellis in his official capacity as chairof the Texas Board of Education, Mike Morath in his official capacityas Commissioner of Education, Defendants.

1:23-cv-00858-ADA

United States District Court, W.D. Texas, Austin Division

Signed September 18, 2023

Catherine Lewis Robb, Michael Joseph Lambert, William Reid Pillifant, Laura Lee Prather, Haynes & Boone, LLP, Austin, TX, for Plaintiffs.

Amy Elizabeth Pletscher, Christina Cella, Office of the Attorney General, General Litigation Division, Austin, TX, for DefendantsMartha Wong, Kevin Ellis, Mike Morath.

Everett William Jack, Jr., Davis Wright Tremaine LLP, Portland, OR, Celyra Imani Myers, Davis Wright Tremaine LLP, Washington, DC, Linda J. Steinman, Davis Wright Tremaine LLP, New York, NY, for Amici Amici Association of University Presses, Freedom to Read Foundation, Freedom to Learn Advocates, American Association of School Librarians.

Celyra Imani Myers, Davis Wright Tremaine LLP, Washington, DC, Linda J. Steinman, Davis Wright Tremaine LLP, New York, NY, for Amicus Barnes & Noble Booksellers, Inc.

Everett William Jack, Jr., Davis Wright Tremaine LLP, Portland, OR, for Amici Association of University Presses, Barnes & Noble, Inc.

ORDER

ALAN D. ALBRIGHT, UNITED STATES DISTRICT JUDGE

Texas faces the important issue of what books should be provided and accessible to students in public school libraries in grades K-12.One of the many issues it considers is the sexual content of the hundreds, if not thousands, of books that are available.Depending on the level of sexual content in each book—a subjective issue reasonable people can disagree about—the state must weigh the appropriateness of purchasing those books and making them available to students.To address this important issue, the Texas Legislature passed HB900, also known as READER, earlier this year.If the law were to go into effect, it would require:

• The Texas State Library and Archives to create standards for "sexually explicit" and "sexually relevant" materials.

• Booksellers to categorize any books they sell or have ever sold to schools according to those standards and issue a recall for any "sexually explicit" materials that they sold to schools.

• Schools to refrain from purchasing any "sexually explicit" materials and to remove "sexually explicit" existing materials from their libraries.

• Librarians to obtain parental consent for students to read or check out any books rated "sexually relevant."

• The Texas Education Agency to oversee the ratings, which includes the power to overrule a vendor's rating.

• Booksellers who do not comply with the rating system (or the overruled ratings) to not sell any books at all to the schools.

The intent of the law is clearly an attempt by the State of Texas to categorize and restrict books based on the level of sexual content in each book.By doing that, the State will determine which books are to be allowed to be purchased by public school libraries and their accessibility by the students with or without parental permission.The issue before this Court is whether the State of Texas is allowed to delegate the categorization to Third Parties like these Plaintiffs.This Court holds that it may not, at least in the manner employed here.

For whatever reason, Texas chose not to have anyone employed by the state at any level make the initial evaluation of the sexual content.It chose instead to impose this extraordinarily difficult and prohibitively expensive burden solely on third parties with totally insufficient guidance.And worse still, no matter how much time and expense the third parties invest in complying, the State(through the Texas Education Agency) retained the power to unilaterally alter any decision made by the third party.

The TEA has the total, unilateral power to alter any rating with which they disagree.The posting of the assessment made by TEA—not the third party—would then appear on TEA's website as if the third party had made the assessment.Finally, the state denied the third parties the ability to appeal if they disagree with the State's ratings of any book.Therefore, this Court holds that the State of Texas impermissibly seeks to compel an individual or a corporation to create speech that it does not wish to make, and in addition, in which it does not agree with.The question faced by this Court is whether this law violates the Free Speech Clause of the First Amendment.For this and other reasons, the Court finds that this law violates the Free Speech Clause of the First Amendment.

I.BACKGROUND

Before the Court is DefendantsMartha Wong, Keven Ellis, and Mike Morath's ("Defendants")Motion to Dismiss(ECF No. 19), and PlaintiffsBook People, Inc.("BookPeople"), VBK, Inc. d/b/a Blue Willow Bookshop ("Blue Willow Bookshop"), American Booksellers Association("ABA"), Association of American Publishers("AAP"), Authors Guild, Inc.("Guild"), and Comic Book Legal Defense Fund's ("Plaintiffs")Motion for Preliminary Injunction(ECF No. 6).Having considered the parties' briefs, the record, and the relevant law, the Court finds that the motion to dismiss, (ECF No. 19), is DENIED, and the motion for preliminary injunction(ECF No. 6), is GRANTED to the extent set out below.

The Texas Legislature passed, and Governor Greg Abbot signed into law, House Bill 900, known as the Restricting Explicit and Adult-Designated Educational Resources Act(hereinafter, "READER"), which was to go into effect on September 1, 2023.The Act purportedly attempts to regulate access to school library books that are deemed "sexually explicit" or "sexually relevant."ECF No. 19at 2.READER has a multitude of requirements regarding the rating of content in school libraries, many specifically targeted at "[l]ibrary material vendor[s]," which includes "any entity that sells library material to a public primary or secondary school in this state."SeeTex. Educ. Code § 35.001(1).

Plaintiffs are a collection of book sellers, publishers, and authors who are suing officials from the Texas State Library and Archives Commission("TSLAC"), Texas State Board of Education("TSBE"), and Texas Education Agency("TEA") for violations of their constitutional rights under the First and Fourteenth Amendments.SeeECF No. 1at 4-7, 19.Specifically, they allege that READER compels speech, is unconstitutionally vague, acts as a prior restraint, is unconstitutional facially and as applied, is overbroad, and is an unconstitutional delegation of government authority.Id. at 19-26.Plaintiffs request an injunction enjoining the Defendants from enforcing READER.Id. at 27;ECF No. 27at 7.Defendants allege that Plaintiffs' challenge should be dismissed under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).ECF No. 19.Defendants also argue that a preliminary injunction is not proper based on the merits.Id.

The rating scheme itself has a complicated web of requirements.READER has three categories that library materials are to be sorted into: "sexually explicit" material, "sexually relevant" material, and material receiving "no rating".Tex. Educ. Code 35.001, 35.003."Sexually relevant material" is defined as "any communication, language, or material, including a written description, illustration, photographic image, video image, or audio file, other than library material directly related to the curriculum required under Section 28.002(a), that describes, depicts, or portrays sexual conduct, as defined by Section 43.25, Penal Code."§ 35.001(3).¹

However, to determine whether materials should be categorized as "sexually explicit", a vendor must determine if the "sexually relevant material" is described or portrayed in a way that is "patently offensive" as defined by Penal Code Section 43.21. Tex. Educ. Code §§ 33.021(a); 35.001(2).While this is a decision that hundreds, if not thousands, of attorneys who work as prosecutors wrestle with (with a judicial officer being the final potential arbiter of any decision), the statute provides no bright line that any of the Plaintiffs could be certain about when making this assessment for each book it reviews and rates.This definition requires Plaintiffs to determine, for each book, whether it is "so offensive on its face as to affront current community standards of decency."Tex. Penal Code § 43.21(a)(4).One wonders how many times appellate courts have been asked to step in to resolve both the meaning of these words, as well as to determine whether an action taken by a defendant had sufficiently met this standard.

In addition, READER fails to inform the public or any Plaintiff whose community standard it is referencing.It is an open question whether this community standard is based on Austin, Texas, or Onalaska, Texas—or any of the more than 1,200 incorporated municipalities across Texas.The lack of any blueprint for the Plaintiffs to follow creates a blunt reality that under this scheme it is guaranteed that different book distributors and sellers will arrive at different assessments with respect to hundreds if not thousands of books.While the TEA has the authority to resolve conflicts over what the correct assessment is—for potentially hundreds of books—there is no requirement in the statute that they do so, and it is unclear from the provisions of the statute what the Plaintiffs(or school districts in Texas) would do in the interim.Thus, school districts across the state of Texas would be able to purchase a book of the exact same content from one provider but not another.Or, if they bought a book from one provider, they might be allowed to make it available to students without parental approval, but if they bought it from a different vendor, parental...