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Federal appeals court rules Texas book bans likely violate Constitution

A federal appeals court ruled Wednesday that a Texas law banning “sexually explicit” books from public schools likely violates the Constitution, partially upholding a preliminary injunction issued by a lower court.

The three-judge appeals panel issued a unanimous ruling that the plaintiffs — two Texas bookstores; three national trade associations representing booksellers, publishers and authors; and a legal defense fund — would likely succeed on their claims that Texas’s law violates their First Amendment right to free speech.

The Restricting Explicit and Adult-Designated Educational Resources Act (READER) requires vendors who want to do business with Texas public schools to give sexual-content ratings for all library material and flag any “sexually explicit” or “sexually relevant” material.

“The question presented is narrow: Are Plaintiffs likely to succeed on their claims that READER violates their First Amendment rights? Controlling precedent suggests the answer is yes,” U.S. Circuit Judge Don Willett, appointed by former President Trump, wrote in the unanimous opinion.

“We affirm the district court’s grant of the preliminary injunction as to Commissioner Morath. We vacate the preliminary injunction against Chairs Wong and Ellis and remand to the district court with instructions to dismiss Plaintiffs’ suit against them. We deny as moot the State’s motion for stay pending appeal.”

Texas has said the law aims to protect children and has pushed back on claims of free speech by the booksellers. The state also claimed there would be no irreparable harm, in arguing against the injunction.

The court rejected those arguments, however, upholding the district court’s conclusion that the government-speech doctrine does not apply and that “the ratings are the vendor’s speech, not the government’s,” and therefore the law mandating the ratings violates freedom of speech.

The court also argued that “compliance costs alone” could cause irreparable harm to the plaintiffs. And while the risk of irreparable injury must be weighed against the public interest, “neither [the State] nor the public has any interest in enforcing a regulation that violates federal law.”

“Because Plaintiffs are likely to succeed on the merits of their First Amendment claim, the State and the public won’t be injured by an injunction of a statute that likely violates the First Amendment,” the filing said.

The law, passed in 2023, is one of several passed in GOP-controlled states that restrict schools from carrying certain books that proponents of the laws argue contain inappropriate content, whether related to race, sex or LGBTQ issues.

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