Federal Court Strikes Down Texas Book Ban, but Constitutional Challenges Remain Across Country

October 16, 2023

What’s old is new again, as book bans have been on the rise in the United States since 2021. Once thought to be relics of our nation’s history, governments across the country have resurrected efforts to ban or restrict access to books in public libraries and school libraries. Several states, including Texas, Arkansas, Missouri, and Utah, have recently enacted laws banning books in libraries.

In 2023, Texas passed an unprecedented book banning law, House Bill 900, that requires booksellers to review all public school library books in “active use” for their sexual content and rate them as “sexually explicit,” “sexually relevant,” or “no rating.” Books rated “sexually explicit” would be removed from public school libraries and banned from being sold to schools. Books rated “sexually relevant” would require parental consent for students to access them outside of the library. On Aug. 31, 2023, one day before the law was set to take effect, the United States District Court for the Western District of Texas enjoined the enforcement of HB 900 after finding that it violated the First Amendment. Book People, Inc. v. Wong, No. 1:23-CV-00858-ADA, 2023 WL 6060045 (W.D. Tex. Sept. 18, 2023) (enjoining proposed Tex. Educ. Code §§ 33.021, 35.001-002, 35.0021, 35.003-008). Haynes Boone team, including Laura Prather, Catherine Robb, Michael Lambert, and Reid Pillifant, brought the lawsuit on behalf of two independent booksellers and four publishers, authors, and booksellers association. Chair of the Haynes Boone media practice group, Laura Prather, argued the case.  The State has appealed to the Fifth Circuit, No. 23-50668, which issued an administrative stay of the injunction, and expedited the case for oral argument on November 29, 2023. At the same time, litigation challenging book bans in other states is continuing to wind its way through courts, while some book bans remain unchallenged.

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