Judge Alan D Albright of the United States District Court for the Western District of Texas delivered the decision. The central issue before the Court for adjudication was to determine whether the Plaintiff’s motion seeking preliminary injunction in the Complaint should be granted or whether the Defendant’s motion seeking dismissal of the Complaint should be granted. To adjudicate on the issue, the Court considered determining whether the READER Act violates the Free Speech Clause of the First Amendment. 

On the issue of whether the Court has subject matter jurisdiction over the Plaintiffs’ constitutional claims for injunctive relief, the Defendant contended that the complaint should be dismissed for lack of subject matter jurisdiction because the Plaintiffs’ claims are non-justiciable and barred by Sovereign Immunity. On the other hand, the Plaintiffs contended that they sufficiently allege standing and that the Government is not entitled to sovereign immunity because of the Ex parte Young exception.

The Court found that the Plaintiffs have sufficiently alleged Article III standing to challenge READER based on the First Amendment. It noted that the Plaintiffs have demonstrated an imminent injury-in-fact, as they intend to sell books to Texas public schools and will be subject to READER’s regulations upon its enforcement. The Court dismisses the Government’s contention that the injury is speculative, emphasizing the substantial evidence presented by the plaintiffs regarding their inability to comply with READER’s requirements and the potential financial harm they face. Additionally, the Court highlights the compelled speech issue, noting that READER effectively forces the plaintiffs to engage in speech they may not agree with by requiring them to provide ratings and accept the state’s ratings, thus satisfying the injury requirement for First Amendment challenges.

The Court found that the plaintiffs’ injuries were fairly traceable to the Defendants as they were tasked with enforcing READER, which directly affected the plaintiffs’ ability to sell books to public schools. Despite the Government’s suggestions that they might not override plaintiffs’ ratings, the Court deemed this as insufficient evidence to dismiss the imminent threat of enforcement contained in the law. The direct causal connection between school districts’ book-buying decisions and the impending application of the law established the Government’s role in the plaintiffs’ injuries. Regarding redressability, the Court determined that if READER were enjoined, plaintiffs’ injuries would be redressed as they would no longer need to review and rate books, thus eliminating potential compelled speech issues. 

While Defendant argued that a favorable ruling would not force school districts to purchase books, the Court asserted that an injunction would significantly lessen plaintiffs’ injury by eliminating the substantial costs they would incur to comply with READER’s rating system and any potential for compelled speech. The Court concluded that plaintiffs’ claims were ripe for judicial review as they raised pure legal questions concerning First and Fourteenth Amendment issues. The requirement for ratings under READER, effective from September 1, 2023, established the fitness of the issues for judicial decision without further factual development. Additionally, the Court determined that defendants were not entitled to sovereign immunity under the Ex parte Young exception, as plaintiffs sought injunctive relief from defendants in their official capacity based on alleged ongoing constitutional violations, thus allowing the suit to proceed. 

On the issue of Government Speech Doctrine

The Defendant asserted that READER falls under the government speech doctrine, which allows the government to determine the content of its own speech without being subject to the constraints of the Free Speech Clause. The Government contended that public education, including curriculum requirements and library service standards, historically falls within the purview of the government’s authority. The Defendant referred to Chiras v. Miller, (2005), and contended that educational institutions are not subject to forum analysis or viewpoint neutrality when promoting their policies and values. They also contended that the First Amendment right to receive information, if applicable, belongs to students, not third-party vendors.

The Plaintiffs contended that READER is subject to First Amendment scrutiny because it authorizes the removal of books, which implicates free speech protections. They further contended that the initial ratings required by READER are the pure speech of private entities submitting them, not government speech. The ratings are displayed as if they are the sellers’ views, indicating that they are not necessarily expressions of government policy. Additionally, the plaintiffs distinguished the precedent cited by the Government, Miller, by highlighting that it pertains to textbooks rather than non-curricular library books. [page 26-28]

The Court held that the speech at issue in the case is not government speech, thus subjecting READER to First Amendment protections. It acknowledges the government’s role in education but finds that the initial ratings required by READER are the speech of private entities, not the government. Even though the government may review and post these ratings, the plaintiffs are the ones initially making the determinations. The Court distinguished the precedent cited by the respondents, noting that it pertains to textbooks, whereas the case at hand involves non-curricular library books. The Court further elaborates on its observation by highlighting specific provisions of READER that require library material vendors to perform a contextual analysis and weigh various factors to determine if the material is patently offensive. These requirements, outlined in Texas Education Code § 35.0021, do not assign a role for the government to perform in the initial rating process. The Court underscores the fact that the ratings submitted by vendors will be publicly posted as their views, emphasizing the private nature of the speech involved. [p. 29-30] 

During the proceedings, the Defendant contended that the state ultimately has oversight and final say on the ratings, suggesting that the ratings are government speech. However, the Court notes that, at least initially, it is the vendors who make the call about a book’s rating. Even though the government may review and potentially override these ratings, the vendors are still the ones compelled to make the initial determinations. Furthermore, the Court rejects the notion that the required recall of library material rated as sexually explicit constitutes government speech. It distinguishes this case from Miller, which dealt with mandatory, curricular textbooks, by emphasizing the distinction between textbooks and library books in Supreme Court precedent. The Court also referred to Campbell v. St. Tammany Parish School Board, (1955), which held that decisions to remove books from public school libraries are subject to greater scrutiny under the First Amendment. [p. 31]

On the question of the Applicability of Forum Doctrine, the Court rejected the Defendant’s argument that this case should be subjected to non-public forum analysis. It emphasizes that forum analysis applies when seeking access to speech in government-owned or controlled spaces, which public schools do not entirely resemble. While READER aims to ensure age-appropriate library materials, the Plaintiffs’ claim is only tangentially related to book selection for school libraries. The Court acknowledged limitations on speech concerning sexually explicit content in educational settings but noted that plaintiffs are not asserting an absolute right to have their books in school libraries. Rather, they assert a right to avoid compelled speech and unconstitutional censorship. The Court distinguished the present case from Hazelwood Sch. Dist. V. Kuhlmeier, (1988) and Bethel Sch. Dist. No. 403 v. Fraser, (1986) which dealt with mandatory curricular activity, the Court ruled that the plaintiff’s speech at issue was not in the school libraries, but in their private activities as booksellers or distributors outside of a school setting. [page 32]

On the question of Compelled Speech

The Plaintiffs contended that READER compels speech in two significant ways. Firstly, it obligates them to engage in “pure speech” by assessing whether a book is “sexually explicit” or “sexually relevant” based on vague standards set by the State, a requirement imposed by statute. This coerced expression violates their First Amendment rights as they have not consented to perform such analyses. Additionally, the subjective nature of the contextual analysis mandated by the law ensures that each vendor’s assessment will differ, resulting in unique expressions protected by the First Amendment. Secondly, READER necessitates that Plaintiffs adjust their independent evaluations of content categorization to align with the government’s modified ratings, further infringing on their freedom of speech. [p. 33-34]

On the other hand, Defendant asserted that the speech the Plaintiffs are being “requested” to undertake is not truly “compelled” in the relevant legal sense because the Plaintiffs lack a protected contrary message to that which the government is asking them to express. Additionally, the Defendant contended that two exceptions to compelled speech are applicable in this case: the commercial speech exception and the essential operation of government exception. [p. 34-35]

The Court delved into the fundamental principle of compelled speech, drawing upon a rich history of Supreme Court precedents such as West Virginia State Board of Education v. Barnette and Wooley v. Maynard, (1977), which underscore the right of individuals to choose what they express or refrain from expressing. Drawing parallels to Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, (1955), the Court emphasizes individuals’ rights to choose what they express and what they refrain from expressing, emphasizing the constitutional protection afforded to such freedoms. The Court referred to 303 Creative LLC v. Elenis, (2023) to underscore the Supreme Court’s recent reaffirmation of individuals’ rights to be free from compelled speech, even in cases involving commercial activities like website content creation. The Court observed that the READER required the plaintiffs to perform ratings (which they had alleged multiple times that they did not want to do, thereby compelling speech. [p. 36]

Furthermore, the Court scrutinized the nature of the compelled speech mandated by READER, particularly focusing on the unilateral power granted to the Texas Education Agency (TEA) to revise and publish ratings attributed to the Plaintiffs, potentially causing reputational harm and financial loss. The Court rebuts the Defendant’s argument that The Plaintiffs lack a protected contrary message, asserting that The Plaintiffs have explicitly expressed their reluctance to engage in rating books and that the government’s coercion of the Plaintiffs to convey its preferred message constitutes textbook compelled speech. Ultimately, the Court asserts that while the government has the authority to regulate educational content, it must do so directly and in compliance with constitutional requirements, rather than compelling private entities to convey its messages under the threat of commercial exclusion. Thus, the Court concludes that READER compels speech by the Plaintiffs, affirming the Plaintiffs’ contention. [p. 37-38]

On the application of defense of the commercial speech, the Court agreed with the Plaintiffs that the fact that they had economic interests in selling books did not “automatically” render the speech commercial. The Court defined commercial speech as “expression related solely to the economic interests of the speaker and its audience.” [p. 38] The Court rejected the Defendant’s reliance on prior judicial precedents as they dealt with advertising. The Court believed that 303 Creative Case perfectly applied to the instant case. In 303 Creative,  the Supreme Court found that the Companies creating websites for profit had a right to full First Amendment protection and specifically stated that speakers do not “shed their First Amendment protections by employing the corporate form to disseminate their speech. [p. 40]

On the application of essential operation of government exception,  the Court agreed with the Plaintiffs that the exception was inapplicable in the instant case since “a tiny sliver of government operations” are considered as “essential”. [p. 41] The Court referred to United States v. Arnold, (2014) (requiring a sex offender to register with the government was an essential operation of the government); United States v. Sindel, (1995) (requiring information on an IRS tax form constituted an essential operation of government); Morales v. Daley, (2000) (Census Bureau’s compulsion of demographic information was an essential operation of government). The Court opined that in these cases, the individuals provided only factual or demographic information to the government without being asked to publicly disagree with a message. In the instant case, however, the vendors were compelled to analyze book content, specifically on sexual themes, publicly posting ratings they disagreed with, violating their rights. The Court concluded that the “essential operation of government” exception did not apply in this case. [p. 41-42]

On the question of the Vagueness Test

The Plaintiffs contended that READER was unconstitutional due to its vagueness, pointing out three key aspects of the law that they argued rendered it unconstitutionally vague. First, they challenged the definitions of “sexually explicit material” and “sexually relevant material,” asserting that these definitions were arbitrarily created by the Legislature, confusing, and lacked a basis in existing law. They highlighted the omission of a crucial prong from the Miller test in the definition of “patently offensive” and criticized the inclusion of vague factors in the determination of “sexually explicit.” Moreover, they argued that the law’s requirement for contextual determinations exacerbated the confusion, leading to inconsistent ratings by different vendors. Second, the Plaintiffs criticized the “curriculum exception” within READER, which exempted library material directly related to the curriculum from certain definitions, labeling it as another point of unconstitutional vagueness. They contended that these arguments collectively rendered the statute unconstitutionally vague. [p. 43-44]

The Defendant countered the Plaintiffs’ argument by asserting that the Plaintiffs had applied an incorrect standard for vagueness. They argued that perfect clarity and precise guidance were not necessary, especially for regulations that restricted expressive activity. Additionally, Defendant contended that READER’s inclusion of factors to consider, instructions on weighing those factors, and directions to Plaintiffs to consider the full context were sufficient to meet the Miller test. [p. 44]

The Court, citing Roark & Hardee LP v. City of Austin, (2008) and Minn. Voters All. v. Mansky (1891), underscored that the standard for determining the constitutionality of vagueness in a law is two-pronged. Firstly, the law must lack clarity to the extent that an average individual cannot reasonably discern what conduct is prohibited, hindering their ability to act accordingly. Secondly, the law must lack explicit standards for its application, thereby risking arbitrary and discriminatory enforcement. The Court noted that the definition of “sexually relevant material,” while mirroring the definition of “patently offensive” provided in Miller v. California, (1973), left out the portion that dealt with the third prong of the Miller test i.e. “whether the material taken as a whole, lacks serious literary, artistic, political, and scientific value.” [p. 43-44] Additionally, the statute only stated that the vendor must “consider the full context” of the sexual conduct, and the “context” was not defined anywhere in the statute. [p. 45] Therefore, according to the Court, this omission of a definition of “context” and the third prong of the Miller test, made READER a “highly personal and subjective” test that was unconstitutionally vague. [p. 45]

Moreover, the Court thoroughly considered the Defendant’s arguments regarding the constitutionality of READER and found them lacking in merit. Despite the Defendants’ assertions that READER meets the Miller test for obscenity, the Court noted inconsistencies and vagueness in the statute’s language. Initially, the Defendants themselves indicated that READER only “attempts” to mirror the Miller test, raising doubts about its actual alignment with the legal standard. Furthermore, the statute’s requirement to “consider the full context” lacks specificity, leading to confusion and subjective interpretations. The statute’s failure to address the third prong of the Miller test, which limits the definition of obscenity, further contributes to its vagueness. Additionally, the statute’s application to diverse communities across Texas, including schools in both urban and less urban areas, presents challenges in determining a uniform rating that reflects varied community standards and contexts. This lack of clarity and the potential for arbitrary application renders the statute unconstitutionally vague, as per the Court’s analysis. [p. 45-46] 

The Court also highlighted the practical challenges posed by READER’s requirement for a single rating for books intended for readers of different ages and backgrounds. For instance, a book like “It’s Perfectly Normal” may be viewed differently by adults and children, leading to the potential for arbitrary and discriminatory application of the law. The Court emphasized that while it did not question the state’s authority to rate books for public school libraries, it found that imposing this responsibility on private third parties exceeded constitutional limits. The absence of clear guidance on how to navigate such variations in age and background led the Court to conclude that READER’s vagueness rendered it unconstitutional. Drawing parallels to precedent cases like West Virginia State Board of Education v. Barnette, (1943) and Wooley v. Maynard, (1977) which emphasized protections against compelled speech, the Court reiterated that READER’s requirements imposed an undue burden on private third parties, exceeding constitutional bounds. This aspect of the law, combined with its vagueness and impracticality, further reinforced the Court’s determination that READER cannot withstand constitutional scrutiny.

In conclusion, the Court reiterated its position that READER’s lack of clarity, failure to address critical aspects of the Miller test, and impracticality in application to diverse communities and age groups rendered it unconstitutionally vague. The Court emphasized the importance of protecting individuals from compelled speech and the need for laws to provide clear guidance to avoid arbitrary or discriminatory enforcement. Thus, the Court concluded that READER, in its current form, could not pass constitutional muster. [p. 46-48]

On the aspect of curriculum exception being unconstitutionally vague, the Court noted that “curriculum exception”, which exempted certain materials related to the curriculum from being rated, was another point of unconstitutional vagueness. The Court opined that the definition and scope of what qualified as curriculum-related were unclear. The Court noted that the law failed to address specifics, such as whether a book brought from a teacher’s home for a lesson fell under this exception. According to the Court, this lack of clarity failed to provide a “person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly” and was, therefore, unconstitutionally vague. [p. 48-49]

On the question of READER being unconstitutional prior restraint

The Plaintiffs contended that READER constitutes an unconstitutional prior restraint due to several key reasons. Firstly, they assert that the statute fails to consider whether books possess literary, artistic, political, or scientific value, as mandated by the Miller test, thus encompassing a broad range of constitutionally protected works under its definition of “sexually explicit material.” Secondly, they argue that READER restricts booksellers from distributing constitutionally protected books in the future based on unrelated past government determinations. Thirdly, they highlight the absence of due process or mechanisms to challenge the State’s final determinations of the ratings required by the Texas Education Agency (TEA).

In response, Defendant contended that READER does not constitute an unconstitutional prior restraint because it does not prohibit communication of any kind. They argue that the Plaintiffs have not provided precedent demonstrating why a prior restraint on a student’s right to access specific school library books would violate the First Amendment. Moreover, Defendants asserted that they are not prohibiting the publication or sale of books containing obscene material outside of Texas schools. They further suggest that even if READER is considered a prior restraint, it may not necessarily be unconstitutional in the context of public schools, implying that a lower standard of review might apply. However, Defendants did not address the applicability of case law such as Bantam Books v. Sullivan or Southeastern Promotions to the present case.

The Court relied on Bantam Books, Inc. v. Sullivan, (1963) and Southeastern Promotions, Ltd. v. Conrad, (1975). In the first case, the Supreme Court invalidated a law that established a Commission to review and rate certain books as objectionable for sale to youth since the law suppressed the distribution of non-obscene constitutionally protected books without a judicial determination. In the latter case, the Supreme Court held that a city’s denial of using a public auditorium to stage a possibly obscene musical was an unconstitutional prior restraint. [p. 51]

Based on these cases, the Court determined whether the READER was a prior restraint and, if it was, whether it was constitutionally impermissible. [p. 52] The Court answered both questions in the affirmative since the law failed to consider whether books had literary, artistic, political, or scientific value, as required by the Miller test, and widely prohibited all constitutionally protected works or literature within its definition of “sexually explicit material.” [p. 53] Furthermore, the absence of opportunities for judicial review of TEA’s determinations violates constitutional principles established in Southeastern Promotions, Ltd. v. Conrad, (1975). Despite Defendants’ arguments about prior restraints in public school settings, the Court determined that READER’s flaws outweigh any legitimate pedagogical goals it might aim to achieve, concluding that it constitutes an impermissible restriction on speech. [p. 53]

The Court found that Plaintiffs would suffer irreparable harm in the absence of an injunction, primarily due to violations of their First Amendment rights and the significant reputational damage they faced. The Court referred to Elrod v. Burns, (1976)  and recognized that the loss of First Amendment freedoms constitutes irreparable injury, particularly when constitutional rights are at stake. Furthermore, reputational harm, as acknowledged in Opulent Life Church v. City of Holly Springs, (1985), was deemed a factor contributing to irreparable harm. The Court noted that the compliance costs that would incur in initial book ratings, updating ratings every year, and recalling “sexually explicit” books sold to the public schools were “astronomical” and “non-recoverable.” The Court agreed with the Plaintiffs’ argument that the violation of their First Amendment rights, combined with potential reputational damage, constituted irreparable harm, thus weighing this factor in favor of granting the injunction. [p. 56]

Additionally, the Court acknowledged the ongoing, non-recoverable compliance costs incurred by the Plaintiffs in adhering to READER. The Court referred to Rest. L. Ctr. v. U.S. Dep’t of Lab., (2022), and highlighted that compliance costs with a putatively invalid regulation typically constitute irreparable harm. Plaintiffs provided evidence of substantial compliance costs, including estimates of between $200 and $1,000 per book for initial ratings, indicating the significant financial burden imposed by READER. The Court emphasized the non-recoverable nature of these costs and rejected Defendants’ arguments to the contrary, ultimately concluding that Plaintiffs would indeed suffer irreparable harm in the absence of an injunction. [p. 57]

On the aspect of the balance of harms and public interest favoring an injunction, the Court determined that granting an injunction favored the balance of harms and public interest. The Court referred to Nken v. Holder, (2009), and noted that when the government is the opposing party, the balance of equities and the public interest align. Additionally, citing Opulent Life Church, the Court emphasized that injunctions protecting First Amendment freedoms are inherently in the public interest. Furthermore, referencing the Food and Drug Administration v. Alliance for Hippocratic Medicine, (2024), the Court highlighted that the government’s interest in enforcing a regulation that violates federal law is diminished. Despite Defendants’ arguments regarding the state’s responsibility for education and child protection, the Court concluded that protecting First Amendment rights prevailed in the public interest, especially considering its findings regarding READER’s likely violations of the First Amendment. Thus, the injunction was deemed appropriate. [p. 57] 

In conclusion, while acknowledging the state’s legitimate interest in safeguarding children’s educational environments, the Court held that READER falls short in addressing obscenity concerns due to its constitutionally vague provisions. By imposing an unconstitutional burden on private individuals and corporations to comply with READER’s flawed framework, the state neglected its duty to protect children while infringing upon First Amendment rights. However, the injunction granted here does not impede the state from pursuing legitimate and constitutional means to achieve its objectives. Therefore, the Court denied the Defendant’s Motion to Dismiss and granted the Plaintiffs’ Motion for Preliminary Injunction.