Partner and Chair of the Media Law Practice Group Laura Lee Prather recently presented oral arguments to the Fifth Circuit representing BookPeople Inc. in BookPeople, Inc. v. Wong, a battle over what the trial court enjoined as a new unconstitutional book rating system in the state of Texas.
Prather’s argument on this contentious topic received widespread media coverage. Read excerpts below:
Bloomberg Law – Texas Booksellers Warn Fifth Circuit on Sex-Content Rating Law
Prather… said the law lacks “guardrails” for rating books. “It then reaches into classics like ‘To Kill a Mockingbird’ and others, because there’s no safeguards for reaching into those constitutionally protected works,” she said. …
Prather said it’s an “impossible task” for sellers to rate every book they previously sold to and is still in use within school districts, as the law requires before they can sell more titles to schools. She pointed to Texas’s over 1,200 school districts and vendors having little insight into whether those materials are still being utilized. The attorney said the vendors then have to go through a 16-step process to apply the rating, which can include trying to determine an author’s intent if there is a potentially sexually explicit passage in a book.
Prather also said there’s no way to apply different ratings for books depending on a student’s age, a scenario she said is “basically a race to the bottom.”
“You’re going to have a situation that promotes over-inclusion of these ratings” to keep a good relationship with Texas’s educational body, Prather said. “And what’s going to result is the public at large gets harmed.”
Judges noted the state does have the authority to "constitutionally restrict sexually explicit material in school libraries," which attorney Laura Prather, an attorney with Haynes Boone arguing on behalf of the vendors, agreed but only on the grounds of the definition of "sexually explicit," which, she argued, the law's definition does not follow federal precedent.
"We are not disputing the state's ability to regulate curriculum or obscene speech," Prather told the court. "They can constitutionally restrict sexually explicit material in school libraries. It depends on how that definition is written."
While the law defines sexually explicit material as any material describing sexual conduct that is deemed "patently offensive" under the state's penal code, Prather said it misses the mark by failing to include the statutory definition of obscenity. That definition was codified in 1973 through the U.S. Supreme Court Case Miller v. California, in which the court also established a three-part obscenity test.
National Law Journal – Texas Urges 5th Circuit to Restore Book Rating Law Sellers Say Violates Free Speech
“Make no mistake these ratings are associated with the booksellers under the plain language of the statute,” Prather added. “[The lawsuit is] about booksellers being compelled to speak against their will and being forced to apply imprecise standards to promote the state’s preferred message.”
Fox News in Dallas, TX – Judges Hear Arguments on Texas Law that Will Regulate Content of Books Distributed to Public School
"They're required to rates books that are in active use. That is something they can't do. They don't know what is or is not in active use," said Laura Lee Prather, who is the attorney for the plaintiffs.
The Texas Tribune – Federal Appeals Court Questions Texas’ New School Library Regulations
“The book sellers here are not asserting the right to have books reach library shelves — they’re asserting the right to be free from compelled speech and the right to offer and distribute books without being forced to decipher incomprehensible and vague standards,” Prather said. “Unless the injunction is continued and the administrative stay is lifted, irreparable injury in the form of lost First Amendment rights will ensue. … Even if HB 900 is ultimately overturned, this bell cannot be unrung.”
The following outlets have also covered the case:
KXAN in Austin, TX – Federal Appeals Court Questions New Texas Law Targeting ‘Explicit’ Books
Austin American Statesman – Appeals Court to Decide on Texas School Library Book Law