The United States Court of Appeal for the Fifth Circuit Court of Appeals recently struck down the Texas READER Act. The Court concluded that the Act compelled book sellers to speak on a manner that violated the First Amendment.
"READER" is an acronym for "Restricting Explicit and Adult-Designated Educational Resources." It requires book vendors to give all books they sell to a library a rating of "sexually explicit," "sexually relevant," or "no rating." The Act provides definitions of "sexually explicit" and "sexually relevant." Once the vendors have rated the material, they must then submit to the Texas Education Agency 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.
The law also allows the TEA to review the rating, and require the Vendor to rewrite a rating with which the TEA disagrees. The law also provides that the TEA to post and maintain in a conspicuous place on its Internet website a list of library material vendors who fail to comply after receiving notice. School districts are prohibited from purchasing library materials from vendors on the noncompliance list.
A coalition of book sellers and trade associations obtained an injunction in a federal trial court preventing implementation of the law. Texas appealed to the Fifth Circuit. It had no better luck there.
The Appellate Court concluded that the law compelled the book vendors to speak – i.e., rate the books -- whether they wanted to or not. As the Court noted, the government violates the First Amendment when it forces someone to speak as much as when it prohibits speech.
The Appellate Court discarded the argument that the rating was like compelled warnings on tobacco and alcohol products. In the Court's view, those warnings consist of purely factual and uncontroversial information. By contrast, to issue the ratings, the law required book vendors to engage in a determination of: "the explicitness or graphic nature of a description or depiction of sexual conduct contained in the material; whether the material consists predominantly of or contains multiple repetitions of depictions of sexual or excretory organs or activities; and whether a reasonable person would find that the material intentionally panders to, titillates, or shocks the reader." As the Court noted, "[b]alancing a myriad of factors that depend on community standards is anything but the mere disclosure of factual information. And it has already proven controversial."
The Court also rejected the notion that the rating constituted "government speech" for the simple reason that the law imposed upon the book vendors the task of assigning the rating. As the Court held, "although the ratings will be posted on TEA's website, the public will be able to see how each vendor rated material and will attribute the ratings to the vendor—not TEA."
The Fifth Circuit properly applied the First Amendment to a clumsy effort to limit access to information. In other words, it did its job.