A federal appeals court has issued an injunction against part of Texas’ book-banning law that requires book vendors to rate books for “sexually explicit” and “sexually relevant” materials. Vendors must submit those ratings every year to the Texas Education Agency (TEA), the agency overseeing public schools. The TEA can then overrule a vendor’s ratings and place vendors on a “noncompliant list,” forbidding schools from buying books from them if the vendors disagree with the TEA’s decisions.

Two Texas bookstores — Austin’s BookPeople and Houston’s Blue Willow Bookshop — filed a lawsuit against the 2023 Restricting Explicit and Adult-Designated Educational Resources (READER) Act, calling the law overbroad and an unconstitutional violation of their free speech rights. The bookstores were joined in their lawsuit by the American Booksellers Association, the Association of American Publishers, the Authors Guild, and the Comic Book Legal Defense Fund.

On Wednesday, a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit ruled that an injunction against the aforementioned section of the READER Act should remain in place because the booksellers in question are likely to suffer irreparable economic and reputational harm because of the law.

Blue Willow Bookshop said that it had already lost $200,000 in business after the law was passed as the Katy Independent School District had already paused all purchasing from it while awaiting for the business to comply with the new law.

The law requires booksellers to rate all books sold to schools if they’re either “sexually explicit” (“patently offensive” by vague and undefined community standards) or “sexually relevant” (with depictions of any sexual conduct). Blue Willow estimated that rating all of its books will cost between $200 and $1,000 per book and between $4 million and $500 million overall. This would bankrupt the store since it only makes $1 million annually, the bookseller said.

Because the bookseller makes 20% of its annual revenue through school sales, if it fails to comply with the law it would lose a large part of its business. 

The Texas government argued that the plaintiffs’ case should be thrown out because vendors aren’t required to participate in the rating system and their economic injuries have not yet occurred. However, in its ruling, the court wrote, “We are not persuaded.”

The state also argued that its law didn’t violate free speech rights because there is an “abundant history” of movie and video game ratings and warning labels on cigarettes. However, the court wrote that movie and video game ratings are entirely voluntary since there are no legal requirements that any entity submit ratings before sale. Also, ratings of sexual content are not “purely factual and uncontroversial,” unlike the health warnings on cigarettes.

“The statute requires vendors to undertake contextual analyses, weighing and balancing many factors to determine a rating for each book,” the court wrote. “Balancing a myriad of factors that depend on community standards is anything but the mere disclosure of factual information. And it has already proven controversial.”

In its lawsuit, the plaintiffs wrote, “The overbroad language of the Book Ban could result in the banning or restricting of access to many classic works of literature, such as Twelfth Night, A Midsummer Night’s Dream, Romeo and Juliet, Of Mice and Men, Ulysses, Jane Eyre, Maus, Anne Frank’s Diary: The Graphic Adaptation, The Canterbury Tales, I Know Why the Caged Bird Sings, and even the Bible.”

While Texas schools will still be allowed to remove sexually explicit and relevant materials from libraries and classrooms, book sellers won’t have to comply with the law for now. The full issue will be decided as the lawsuit proceeds through the judicial system.

In a statement issued after the ruling, the plaintiffs said, “We are grateful for the Fifth Circuit Court of Appeals’ decisive action in striking down this unconstitutional law. With this historic decision the court has moved decisively to ensure the constitutionally protected speech of authors, booksellers, publishers, and readers, and prevent the state government from unlawfully compelling speech on the part of private citizens.”

“The court’s decision also shields Texas businesses from the imposition of impossibly onerous conditions, protects the basic constitutional rights of the plaintiffs, and lets Texas parents make decisions for their own children without government interference or control,” the statement contnued. “This is a good day for bookstores, readers, and free expression.”