by Chris Gilbert, Thompson & Horton LLP

Litigation Update:  this week a federal judge in Austin has indicated to the parties in Book People, Inc. v. Wong (Western District of Texas) that he intends to enjoin application of the READER Act.  Passed by the recent Texas Legislature as House Bill 900, the READER Act places affirmative duties on any vendor that sells reading materials to public schools to “rate” books as “sexually explicit” or “sexually relevant.”  Schools may not purchase “sexually explicit” materials (which are defined as materials depicting or describing “sexual conduct” that is “patently offensive”), and may not check out “sexually relevant” materials to students without parent permission.  Vendors must “recall” previously sold “sexually explicit” materials.  A school district cannot buy from vendors who have not issued ratings for “sexually explicit” material.  Schools must review “sexually relevant” materials every two years, and publish a report of “sexually relevant” material on the school district website or at the administrative building.  These rules also apply to “classroom libraries.”

Book People, Inc. v. Wong is a lawsuit brought by the vendors and various organizations, claiming that the READER Act forces them to apply vague and undefined standards, places an incredibly heavy burden on them if they continue to sell to public schools, and forces them to engage in compelled speech by agreeing with the State’s standards (if the State disagrees with a vendor’s rating for a specific book, it can change that rating and the vendor must then promote and enforce the State’s rating) — all in violation of the First Amendment.  Although there is no written order from the Court yet, sources say that the judge told the parties at a hearing on August 31, 2023 that he intends to enjoin application of the Act (which must be true, because the docket already shows that the State has filed a document indicating that they intend to appeal the judge’s order).

We will keep you apprised of ongoing activities in this lawsuit.