finding that the injury-in-fact requirement was satisfied where law prohibited plaintiff bookstores from selling books to public schools without engaging in compelled speech
How later courts described this case
- finding that the injury-in-fact requirement was satisfied where law prohibited plaintiff bookstores from selling books to public schools without engaging in compelled speech
- finding an injury not self-inflicted when a plaintiff “will be harmed if they comply with [the law] and harmed if they don’t”
- finding a sufficient connection to enforcement in the Texas Education Commissioner’s discretionary review of library vendors’ ratings
- holding claims ripe where “[n]o other factual or legal developments are required for us to decide this case”
Written by the judges who cited it.
The opinion
Case: 23-50668 Document: 00517035265 Page: 1 Date Filed: 01/17/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50668
____________ FILED
January 17, 2024
Book People, Incorporated; VBK, Incorporated, doing
Lyle W. Cayce
business as Blue Willow Bookshop; Association of Clerk
American Publishers; Authors Guild, Incorporated;
Comic Book Legal Defense Fund; American Booksellers
Association,
Plaintiffs—Appellees,
versus
Martha Wong, in her official capacity as the Chair of the Texas State
Library and Archives Commission; Kevin Ellis, in his official capacity the
Chair of the Texas State Board of Education; Mike Morath, in his official
capacity as the Commissioner of the Texas Education Agency,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:23-CV-858
______________________________
Before Wiener, Willett, and Douglas, Circuit Judges.
Don Willett, Circuit Judge:
In an effort to keep material deemed inappropriate off Texas public-
school bookshelves, the Texas Legislature in 2023 passed the Restricting
Explicit and Adult-Designated Educational Resources Act (READER). In
Case: 23-50668 Document: 00517035265 Page: 2 Date Filed: 01/17/2024
No. 23-50668
short, the Act requires school book vendors who want to do business with
Texas public schools to issue sexual-content ratings for all library materials
they have ever sold (or will sell), flagging any materials deemed to be
“sexually explicit” or “sexually relevant” based on the materials’ depictions
of or references to sex.
Plaintiffs—two Texas bookstores, three national trade associations
(representing booksellers, book publishers, and book authors), and a legal-
defense organization—sued for injunctive relief, alleging that READER
violates their rights under the First and Fourteenth Amendments. The
district court granted Plaintiffs’ motion for a preliminary injunction. Texas
immediately appealed.
The question presented is narrow: Are Plaintiffs likely to succeed on
their claims that READER violates their First Amendment rights?
Controlling precedent suggests the answer is yes.
We AFFIRM the district court’s grant of the preliminary injunction
as to Commissioner Morath. We VACATE the preliminary injunction
against Chairs Wong and Ellis and REMAND to the district court with
instructions to dismiss Plaintiffs’ suit against them. We DENY AS MOOT
the State’s motion for stay pending appeal.
I
Texas has about 5.3 million schoolchildren and nearly 9,000 K–12
campuses. In 2023, the Texas Legislature passed READER, which regulates
the sale and purchase of public-school library materials. 1 The Act’s goals are
to keep “sexually explicit” material out of school libraries and to require
_____________________
1
88th Leg., R.S., ch. 808, 2023 Tex. Sess. Law Serv. 2539 (H.B. 900) (codified at
Tex. Educ. Code §§ 33.021, 35.001–.008).
2
Case: 23-50668 Document: 00517035265 Page: 3 Date Filed: 01/17/2024
No. 23-50668
parental consent for any “sexually relevant” material. 2 It aims to accomplish
these goals through (1) library-collection standards imposed on school
districts, and (2) a rating system for all library materials, imposed on library-
material vendors. 3 Only the rating system affects Plaintiffs, but we address
both parts in turn.
A
First, the library-collection standards. READER amends Chapter 33
of the Texas Education Code to require the Texas State Library and Archives
Commission (the Commission), with approval by majority vote of the Texas
State Board of Education, to “adopt standards for school library collection
development.” 4 The standards must, in relevant part, prohibit school
districts from possessing, purchasing, or acquiring “(i) harmful material, as
defined by Section 43.24, Penal Code; (ii) library material rated sexually
explicit by the . . . vendor; or (iii) library material that is pervasively vulgar or
educationally unsuitable as referenced in Pico v. Board of Education, 457 U.S.
853 (1982).” 5 School districts must follow these standards in “developing or
implementing the district’s library collection development policies.” 6 The
Commission must review and update its standards every five years. 7
The district court did not enjoin enforcement of this chapter, and the
library standards are not at issue on appeal.
_____________________
2
See Tex. Educ. Code §§ 33.021(d)(2)(A)(ii), 35.005.
3
See id. §§ 33.021, 35.001–.008.
4
Id. § 33.021(c).
5
Id. § 33.021(d)(2)(A).
6
Id. § 33.021(c).
7
Id. § 33.021(d)(1).
3
Case: 23-50668 Document: 00517035265 Page: 4 Date Filed: 01/17/2024
No. 23-50668
B
What is instead at issue is READER’s vendor-rating system. To
comply with READER, library-material vendors “may not sell library
materials to a school district . . . unless [they have] issued appropriate
ratings” for library materials they have previously sold to a school district or
open-enrollment charter school 8 and that remain in active use by a district or
school. 9 The Act requires vendors to give all library material a rating of
“sexually explicit,” “sexually relevant,” or “no rating.” 10
The Act defines “sexually explicit” and “sexually relevant” this way:
“Sexually explicit material” means any communication,
language, or material, including a written description,
illustration, photographic image, video image, or audio file,
other than library material directly related to the curriculum
required under Section 28.002(a), that describes, depicts, or
portrays sexual conduct, as defined by Section 43.25, Penal
Code, in a way that is patently offensive, as defined by Section
43.21, Penal Code. 11
“Sexually relevant material” means any communication,
language, or material, including a written description,
illustration, photographic image, video image, or audio file,
other than library material directly related to the curriculum
required under Section 28.002(a), that describes, depicts, or
_____________________
8
The Act applies to both school districts and open-enrollment charter schools, but
we will refer to school districts for simplicity.
9
Id. § 35.002(a).
10
See id. §§ 35.002(a), 35.003. “Library material” is not defined in the statute, but
Plaintiffs submit that it could include books, magazines, newspapers, audio and audiovisual
materials, and reference works.
11
Id. § 33.021; id. § 35.001 (“‘Sexually explicit material’ has the meaning assigned
by Section 33.021.”).
4
Case: 23-50668 Document: 00517035265 Page: 5 Date Filed: 01/17/2024
No. 23-50668
portrays sexual conduct, as defined by Section 43.25, Penal
Code. 12
The Penal Code, in turn, defines “sexual conduct” as “sexual contact, actual
or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality,
masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the
anus, or any portion of the female breast below the top of the areola.” 13 And
it defines “patently offensive” as “so offensive on its face as to affront
current community standards of decency.” 14
Once the vendors have rated the material, they must then submit to
the Texas Education Agency (TEA) a list of the material rated as sexually
explicit or sexually relevant. 15 Material rated sexually explicit may not be sold
to school districts and must be removed from library bookshelves. 16 And
vendors must issue a recall for all material that is rated sexually explicit and
in active use by a school district. 17 Material rated sexually relevant may not
be “reserve[d], check[ed] out, or otherwise use[d] outside the school
library” without written parental consent. 18
Vendors must submit to TEA their list of ratings by April 1, 2024. 19
TEA must then post “each list submitted . . . in a conspicuous place on the
_____________________
12
Id. § 35.001(3).
13
Tex. Penal Code § 43.25.
14
Id. § 43.21.
15
Tex. Educ. Code § 35.002(c).
16
Id. § 35.002(b).
17
Id.
18
Id. § 35.005.
19
Id. § 35.002(c).
5
Case: 23-50668 Document: 00517035265 Page: 6 Date Filed: 01/17/2024
No. 23-50668
agency’s Internet website as soon as practicable.” 20 The Act requires the
vendors to conduct this review yearly, with updated ratings due September 1
of each year. 21
1
READER provides the following “rating guidelines” for vendors to
follow in determining whether material is sexually explicit or sexually
relevant. First, a vendor “must perform a contextual analysis of the material
to determine whether the material describes, depicts, or portrays sexual
conduct in a way that is patently offensive.” 22 There are three factors that “a
vendor must consider” in performing the contextual analysis:
(1) the explicitness or graphic nature of a description or
depiction of sexual conduct contained in the material;
(2) whether the material consists predominantly of or contains
multiple repetitions of depictions of sexual or excretory
organs or activities; and
(3) whether a reasonable person would find that the material
intentionally panders to, titillates, or shocks the reader. 23
In examining these factors, “a vendor must weigh and balance each factor
and conclude whether the library material is patently offensive, recognizing
that . . . each instance of a description, depiction, or portrayal of sexual
conduct contained in a material may present a unique mix of factors.” 24 And
finally, in making the patently offensive determination, READER instructs
_____________________
20
Id. § 35.002(e).
21
Id. § 35.002(d).
22
Id. § 35.0021(a).
23
Id. § 35.0021(b).
24
Id. § 35.0021(c).
6
Case: 23-50668 Document: 00517035265 Page: 7 Date Filed: 01/17/2024
No. 23-50668
that a vendor “must consider the full context in which the description,
depiction, or portrayal of sexual conduct appears, to the extent possible,
recognizing that contextual determinations are necessarily highly fact-
specific and require the consideration of contextual characteristics that may
exacerbate or mitigate the offensiveness of the material.” 25
2
Once vendors submit their ratings, TEA “may review” the “material
sold by a . . . vendor that is not rated or incorrectly rated by the vendor.” 26 If
TEA undertakes this review and determines that a different rating, or no
rating at all, should be applied to certain material, “the agency shall provide
written notice to the vendor,” which “must include information regarding
the vendor’s duty under this section and provide the corrected rating
required for the library material.” 27
After receiving notice, the vendor then has 60 days to “(1) rate the
library material according to the agency’s corrected rating; and (2) notify the
agency of the action taken under Subdivision (1).” 28 “The agency shall post
and maintain in a conspicuous place on [its] Internet website a list of library
material vendors who fail to comply” after receiving notice. 29 School districts
are prohibited from purchasing library materials from vendors on the
noncompliance list. 30 Vendors on the list may petition the agency for removal
_____________________
25
Id. § 35.0021(d).
26
Id. § 35.003(a).
27
Id.
28
Id. § 35.003(b).
29
Id. § 35.003(c).
30
Id. § 35.003(d).
7
Case: 23-50668 Document: 00517035265 Page: 8 Date Filed: 01/17/2024
No. 23-50668
from the list, and TEA may remove a vendor from the list only if it is satisfied
that the vendor has rated the material according to TEA’s corrected rating. 31
C
Plaintiffs are two Texas bookstores, three national trade associations,
and a legal-defense organization. 32 The bookstores have sold and would like
to continue selling library material to public-school libraries. In July 2023,
before READER went into effect, Plaintiffs sued the State Defendants 33 and
sought a preliminary injunction under 42 U.S.C. § 1983, alleging that
READER violates the First and Fourteenth Amendments. Plaintiffs
asserted various First Amendment theories, including that READER
unconstitutionally compels private speech, is unconstitutionally vague and
overbroad, is a prior restraint, and is an unconstitutional delegation of
government authority. Plaintiffs sought to enjoin the State Defendants from
enforcing READER in its entirety.
The State opposed the preliminary injunction and moved to dismiss
the suit under Federal Rule of Civil Procedure 12(b)(1), arguing that
Plaintiffs’ claims were unripe, that Plaintiffs lacked standing, and that
Defendants were entitled to sovereign immunity. 34
_____________________
31
Id. § 35.003(e).
32
Book People, Inc.; VBK, Inc. d/b/a Blue Willow Bookshop; American
Booksellers Association (ABA); Association of American Publishers (AAP); Authors
Guild, Inc.; and Comic Book Legal Defense Fund.
33
Martha Wong, Chair of Texas State Library and Archives Commission; Kevin
Ellis, Chair of the Texas Board of Education; and Mike Morath, Commissioner of
Education.
34
Plaintiffs also moved to dismiss under Rule 12(b)(6), but the denial of that motion
is not before us on appeal.
8
Case: 23-50668 Document: 00517035265 Page: 9 Date Filed: 01/17/2024
No. 23-50668
The district court denied the motion to dismiss and entered a
preliminary injunction prohibiting Defendants from enforcing §§ 35.001,
35.002, 35.0021, and 35.003 of READER. It did not, however, enjoin
enforcement of the library-standards provision 35 or other provisions of
Chapter 35 concerning the State’s review and reporting of certain library
materials. 36 Defendants sought a stay of the injunction in the district court,
which the court denied from the bench.
On appeal, Defendants sought a stay pending appeal and,
alternatively, an administrative stay. A different panel of this court granted
the administrative stay and ordered that the motion to stay pending appeal be
carried with the case. We now review the district court’s rulings with respect
to Defendants’ sovereign immunity and Plaintiffs’ preliminary injunction.
II
We review the district court’s standing and sovereign-immunity
determinations de novo. 37 And “[w]e review the district court’s grant of
[Plaintiffs’] preliminary injunction for abuse of discretion, reviewing
underlying factual findings for clear error and legal conclusions de novo.” 38
III
We first address whether Plaintiffs have standing and, if so, whether
their claims are ripe. 39
_____________________
35
Id. § 33.021.
36
Id. § 35.004–.008.
37
Tex. All. for Retired Ams. v. Scott, 28 F.4th 669, 671 (5th Cir. 2022). We also
review ripeness de novo. Braidwood Mgmt., Inc. v. EEOC, 70 F.4th 914, 923 (5th Cir. 2023).
38
Harrison v. Young, 48 F.4th 331, 339 (5th Cir. 2022).
39
All. for Hippocratic Med. v. FDA, 78 F.4th 210, 227 (5th Cir. 2023) (“[A]n
injunction is always improper if the district court lacked jurisdiction.”), cert. granted sub
9
Case: 23-50668 Document: 00517035265 Page: 10 Date Filed: 01/17/2024
No. 23-50668
A
Plaintiffs “bear[] the burden of establishing the three familiar
elements of standing.” 40 They “must have (1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the defendant, and
(3) that is likely to be redressed by a favorable judicial decision.” 41 Plaintiffs
seek injunctive relief, so they must show “a continuing injury or threatened
future injury, not a past one.” 42 To do so, Plaintiffs “must show that ‘the
threatened injury is certainly impending, or there is a substantial risk that the
harm will occur.’” 43 “[T]he threat of future injury [must be] sufficiently
likely.” 44 Injuries that are predicated “‘on a highly attenuated chain of
possibilities’ or that ‘require guesswork as to how independent
decisionmakers will exercise their judgment’” will not suffice. 45
_____________________
nom. Danco Lab’ys, L.L.C. v. All. Hippocratic Med., No. 23-236, 2023 WL 8605744 (U.S.
Dec. 13, 2023), and cert. granted sub nom. FDA v. All. Hippocratic Med., No. 23-235, 2023
WL 8605746 (U.S. Dec. 13, 2023), and cert. denied, No. 23-395, 2023 WL 8605749 (U.S.
Dec. 13, 2023).
40
Abdullah v. Paxton, 65 F.4th 204, 208 (5th Cir. 2023) (internal quotation marks
and citation omitted); Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
41
Spokeo, 578 U.S. at 338 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992)).
42
Missouri v. Biden, 83 F.4th 350, 366 (5th Cir. 2023) (internal quotation marks and
citation omitted), stayed and cert. granted sub nom. Murthy v. Missouri, 144 S. Ct. 7 (U.S.
Oct. 20, 2023).
43
All. for Hippocratic Med., 78 F.4th at 227 (quoting Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 158 (2014)).
44
Id.; see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (explaining
that an injury must be “actual or imminent” meaning that it is “certainly impending”).
45
All. for Hippocratic Med., 78 F.4th at 227 (quoting Clapper, 568 U.S. at 410, 413).
10
Case: 23-50668 Document: 00517035265 Page: 11 Date Filed: 01/17/2024
No. 23-50668
At this stage, Plaintiffs “must clearly show only that each element of
standing is likely to obtain in the case at hand.” 46 Our analysis will focus on
the two booksellers’ standing because “[t]he presence of any one plaintiff
with standing to pursue injunctive relief . . . satisfies Article III’s case-or-
controversy requirement.” 47
We first consider injury in fact.
1
The Bookseller Plaintiffs allege that READER unconstitutionally
compels their speech and that, if they comply with the law, they will suffer
economic and reputational injuries.
In a pre-enforcement challenge, Plaintiffs can establish an injury in
fact if they show that “(1) [they] ha[ve] an intention to engage in a course of
conduct arguably affected with a constitutional interest, (2) [their] intended
future conduct is arguably proscribed by the policy in question, and (3) the
threat of future enforcement of the challenged policies is substantial.” 48 We
conclude that Plaintiffs have met all three elements here.
First, Plaintiffs have alleged their intention to engage in a course of
conduct arguably affected with a constitutional interest. They have alleged
that they have sold books to public schools and that they intend to continue
doing so. Selling books is arguably affected with a First Amendment
_____________________
46
Missouri v. Biden, 83 F.4th at 366–67 (quoting Speech First, Inc. v. Fenves, 979 F.3d
319, 330 (5th Cir. 2020)).
47
Id. (emphasis omitted) (citing Rumsfeld v. F. for Acad. & Institutional Rts., Inc.,
547 U.S. 47, 52 n.2 (2006)).
48
Speech First, 979 F.3d at 330 (cleaned up) (quoting Susan B. Anthony List, 573
U.S. at 161–64).
11
Case: 23-50668 Document: 00517035265 Page: 12 Date Filed: 01/17/2024
No. 23-50668
interest. 49 And Plaintiffs have an interest in selling books without being
coerced to speak the State’s preferred message—the ratings. 50 The State’s
position is that READER does not implicate Plaintiffs’ First Amendment
rights at all, but as explained below, 51 we are unpersuaded. And for standing
purposes, Plaintiffs must only prove that the conduct they intend to engage
in is “arguably affected” with a constitutional interest. 52 They have done so.
Second, READER arguably proscribes Plaintiffs’ continued sales to
public schools. The two Bookseller Plaintiffs are indisputably “library
material vendors” under the statute, so they are subject to its rating
provisions. 53 By its plain terms, § 35.002 forbids library-material vendors
from selling books to school districts until they provide the required ratings. 54
_____________________
49
See Prison Legal News v. Livingston, 683 F.3d 201, 212 (5th Cir. 2012)
(“Government interference with one’s attempts to sell or distribute written material
unquestionably satisfies Article III’s injury-in-fact requirement.”); see also id. 212 n.3 (“In
fact, Bantam Books took as its starting point that book distributors have standing to
challenge censorship schemes.” (citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64 n.6
(1963))); Genusa v. City of Peoria, 619 F.2d 1203, 1218 (7th Cir. 1980) (“The freedom to
operate a bookstore is unquestionably protected by the First Amendment. Preservation of
freedom of expression requires protection of the means of disseminating expression.”); Bd.
of Educ. v. Pico, 457 U.S. 853, 867 (1982) (“The right of freedom of speech and
press . . . embraces the right to distribute literature, and necessarily protects the right to
receive it.” (alteration in original) (quoting Martin v. Struthers, 319 U.S. 141, 143 (1943))).
50
See 303 Creative LLC v. Elenis, 600 U.S. 570, 586 (2023) (“Nor does it matter
whether the government seeks to compel a person to speak its message when he would
prefer to remain silent or to force an individual to include other ideas with his own speech
that he would prefer not to include.”).
51
See infra Part IV.A.1.
52
Speech First, 979 F.3d at 330.
53
A library-material vendor “includes any entity that sells library material to a
public primary or secondary school in [Texas].” Tex. Educ. Code § 35.001(1).
54
Id. § 35.002(a) (“A library material vendor may not sell library materials to a
school district . . . unless the vendor has issued appropriate ratings . . . .” (emphasis
added)).
12
Case: 23-50668 Document: 00517035265 Page: 13 Date Filed: 01/17/2024
No. 23-50668
Thus, the statute arguably “facially restrict[s]” Plaintiffs’ intended future
conduct. 55
Third, we assume that Plaintiffs face a credible threat of enforcement
because the State has provided no “compelling contrary evidence.” 56 The
State’s main argument is that, despite READER’s plain language, the Act
doesn’t actually prevent Plaintiffs from selling books because READER
lacks a mechanism for Defendants to enforce the rating system or the library
standards against these Plaintiffs. The State is half right.
True, the State cannot enforce the library-collection standards against
Plaintiffs. Although school districts must adhere to Chapter 33’s library-
collection standards, no Plaintiff has any duty under that chapter. 57 No
Plaintiff brings any claims under Chapter 33, and indeed, the district court
did not enjoin its enforcement.
But Chapter 35 facially forbids Plaintiffs from selling books to public
schools unless they comply with the statute and provide ratings. 58 Still, the
State maintains that the rating system, too, can be enforced only against the
school districts—not Plaintiffs. That the State enforces READER through
school districts is not fatal to Plaintiffs’ standing. Courts have found that
_____________________
55
See Speech First, 979 F.3d at 335.
56
Id. (collecting cases) (“[In] pre-enforcement challenges to recently enacted (or,
at least, non-moribund) statutes that facially restrict expressive activity by the class to
which the plaintiff belongs, courts will assume a credible threat of prosecution in the
absence of compelling contrary evidence.” (citation omitted)).
57
See Tex. Educ. Code § 33.021(b) (describing standards “that a school district
shall consider in developing, implementing, or expanding library services” (emphasis
added)); id. § 33.0021(c) (describing “standards for school library collection development
that a school district shall adhere to in developing or implementing the district’s library
collection development policies” (emphasis added)).
58
Id. § 35.002(a).
13
Case: 23-50668 Document: 00517035265 Page: 14 Date Filed: 01/17/2024
No. 23-50668
plaintiffs have standing to sue government entities that injure them through
another entity. 59 Although an injury cannot be “‘the result of the
independent action of some third party not before the court,’ that does not
exclude injury produced by determinative or coercive effect upon the action
of someone else.” 60 The State admits that the Agency Commissioner is
empowered to enforce the Act against school districts, 61 which means the
school districts’ purchasing decisions are determined or coerced by the State
through READER.
We assume there is a credible threat of enforcement and conclude that
Plaintiffs have sufficiently established an injury in fact under our pre-
enforcement standing precedent.
Independent of its alleged constitutional injuries, Plaintiffs have also
established an injury in fact by alleging an economic injury. 62 Plaintiffs allege
that READER causes “significant economic damages” in four ways.
• First, Blue Willow alleges that it has already lost business.
It has sold over $200,000 in books to Katy ISD in the past
5–7 years, but as a result of READER, Katy ISD has
paused all purchasing, including from Blue Willow.
_____________________
59
See Bennett v. Spear, 520 U.S. 154, 169 (1997) (holding that ranchers had standing
to challenge an agency’s biological opinion, which caused a third party to reduce the water
available to the ranchers; the injury of reduced water was fairly traceable to the biological
opinion even though the third party retained responsibility for water allocation); Air Evac
EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 513 (5th Cir. 2017)
(rejecting the defendants’ argument that the plaintiffs could not prove traceability or
redressability because the challenged statutory provision was “not directly ‘enforced’
against [the plaintiffs]”).
60
Bennett, 520 U.S. at 169 (cleaned up).
61
See Tex. Educ. Code § 39.003(a), (d).
62
Plaintiffs also allege reputational injury. We need not reach this issue, however,
because we find that they have standing based on their constitutional and economic injuries.
14
Case: 23-50668 Document: 00517035265 Page: 15 Date Filed: 01/17/2024
No. 23-50668
• Second, Plaintiffs allege that they will lose money between
September 1, 2023 (when the law goes into effect), and
April 1, 2024 (when ratings are due), because READER
prohibits vendors from selling any books to public schools
until they have complied with the rating requirements.
• Third, Plaintiffs allege that complying with READER will
require them to divert extensive time and resources from
their normal operations. Blue Willow estimates that
compliance will cost between $200 and $1,000 per book
and estimates that the cost to rate books already sold will be
between $4 million and $500 million. It alleges that
compliance costs alone will put it out of business because
its annual sales are just over $1 million.
• Fourth, Blue Willow alleges that 20% of its sales are to
schools or related to school author visits and festivals. It
alleges that, if schools are no longer able to buy from them,
it will lose most of this revenue.
“[E]conomic harm—like damage to one’s business interest—is a
quintessential Article III injury.” 63 We have found a “concrete injury” when
a plaintiff is “forced to divert time and resources away from their regular
[business].” 64
The State contends that these economic injuries cannot confer
standing because the vendors are not required to participate in the rating
system and their alleged injuries are not imminent. We are not persuaded.
Plaintiffs allege that they will be harmed if they comply with READER and
harmed if they don’t. If Plaintiffs try to comply, they have alleged that it will
_____________________
63
All. for Hippocratic Med, 78 F.4th at 235; TransUnion LLC v. Ramirez, 594 U.S.
413, 425 (2021) (explaining that “monetary harms” are among the “[t]he most
obvious . . . traditional tangible harms” that “readily qualify as concrete injuries under
Article III”).
64
All. for Hippocratic Med., 78 F.4th at 235.
15
Case: 23-50668 Document: 00517035265 Page: 16 Date Filed: 01/17/2024
No. 23-50668
cost them potentially millions of dollars to rate and review books. And if they
don’t comply, the law at least facially prohibits them from selling any books
to schools—which would cost Blue Willow nearly 20% of its revenue. These
are concrete, cognizable injuries sufficient to confer standing, and the fact
that the vendors are not required to participate in the program does not
change that. 65
2
Next, we consider whether Plaintiffs’ injuries are fairly traceable to
Defendants’ actions and redressable by the requested relief. To prove
traceability, Plaintiffs must allege “a causal connection between the injury
and the conduct complained of.” 66 “Tracing an injury is not the same as
seeking its proximate cause.” 67 Where, as here, “a causal relation between
injury and challenged action depends upon the decision of an independent
third party . . . standing is not precluded, but it is ordinarily substantially
more difficult to establish.” 68 To meet its burden, Plaintiffs “must show at
the least ‘that third parties will likely react in predictable ways.’” 69 And to
satisfy the redressability requirement, Plaintiffs must show that a “favorable
_____________________
65
That said, we agree with the State that Katy ISD’s decision to pause purchasing
due to “uncertainty surrounding [READER]” cannot confer standing. Katy ISD
allegedly paused purchasing until the school board created a procedure for evaluating
books. Thus, the decision was apparently based on the district’s internal process for
implementing READER and has no connection to Plaintiffs.
66
Lujan, 504 U.S. at 560.
67
K.P. v. LeBlanc, 627 F.3d 115, 123 (5th Cir. 2010) (citing Bennett, 520 U.S. at 168–
69).
68
California v. Texas, 141 S. Ct. 2104, 2117 (2021) (internal quotation marks and
citation omitted).
69
Id. (quoting Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566 (2019)).
16
Case: 23-50668 Document: 00517035265 Page: 17 Date Filed: 01/17/2024
No. 23-50668
decision will relieve a discrete injury to [themselves].” 70 It must be “likely,
as opposed to merely speculative, that the injury will be redressed by a
favorable decision.” 71
Plaintiffs’ injuries are traceable to the State’s enforcement of
READER, but only to Commissioner Morath. Although Chairs Wong and
Ellis are responsible for promulgating the library-collection standards, those
standards are not enforceable against Plaintiffs, and Plaintiffs have not
explained how their injuries are otherwise traceable to Chairs Wong or
Ellis.72
To enforce READER, Commissioner Morath is required to collect
ratings from vendors and post them on the Agency’s website. 73 He has
discretion to review vendors’ ratings, and if he does, he must notify vendors
of the updated ratings and their duty to conform their rating to the
Agency’s. 74 He must then post the names of the vendors that don’t accept
_____________________
70
Air Evac EMS, 851 F.3d at 514 (quoting Larson v. Valente, 456 U.S. 228, 243 n.15
(1982)).
71
Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 181
(2000).
72
The State also argues that Chairs Wong and Ellis are entitled to sovereign
immunity. Although we need not reach this question, we note that we would reach the same
conclusion because Plaintiffs have not shown that either Wong or Ellis have the required
connection to READER’s enforcement. They are responsible for formulating the library
standards for public schools, but “authority to promulgate [policy], standing alone, is not
the power to enforce that policy” under Ex parte Young. Haverkamp v. Linthicum, 6 F.4th
662, 670 (5th Cir. 2021) (per curiam). And the policies that Wong and Ellis are responsible
for promulgating are enforceable only against school districts, not Plaintiffs. See Tex.
Educ. Code § 33.021(b), (c).
73
Tex. Educ. Code § 35.002(e) (“The agency shall post each list submitted
under Subsection (c) or (d) in a conspicuous place on the agency’s Internet website as soon
as practicable.” (emphasis added)).
74
Id. § 35.003(a) (“If the agency determines that the library material is required to
be rated as sexually explicit material or sexually relevant material or to receive no rating at
17
Case: 23-50668 Document: 00517035265 Page: 18 Date Filed: 01/17/2024
No. 23-50668
the Agency’s updated ratings on the Agency’s website. 75 As the State
explained at the hearing before the district court, Commissioner Morath also
has the authority to enforce § 35.003(d), which prohibits school districts
from purchasing books from vendors who are on the noncompliance list,
through a special investigation and sanctions. 76 Because Commissioner
Morath “oversee[s] the [challenged] process” 77 and because his actions are
“among those [that] would contribute to Plaintiffs’ harm,” 78 Plaintiffs’
injuries can be traced to the Commissioner’s enforcement of READER. 79 If
Commissioner Morath is enjoined, he cannot prohibit school districts from
purchasing books from any vendors, either because the vendors did not
initially provide ratings or because they refused to accept the Agency’s
updated ratings. The ACLU of Texas and Constitutional Law Scholars, as
amicus curiae, make the good point that enjoining the Commissioner from
enforcing READER would free Plaintiffs from the injurious dilemma that
READER creates: either submit unconstitutionally compelled ratings to the
Agency at great expense or refuse to comply and lose customers and revenue.
_____________________
all under that subsection, the agency shall provide written notice to the vendor.” (emphases
added)).
75
Id. § 35.003(c) (“The agency shall post and maintain in a conspicuous place on
the agency’s Internet website a list of library material vendors who fail to comply with
Subsection (b).” (emphasis added)).
76
Id. § 39.003(a), (d).
77
Air Evac EMS, 851 F.3d at 514 (finding traceability satisfied where “state
defendants oversee the [challenged] process,” reasoning that the “state defendants’
oversight” of the challenged program “places state defendants among those who cause [the
plaintiff’s] injury”).
78
K.P., 627 F.3d at 123.
79
See Missouri v. Biden, 83 F.4th at 370 (“The dispositive question is whether the
Individual Plaintiffs’ censorship can also be traced to government-coerced enforcement of
those policies. We agree with the district court that it can be.” (emphasis omitted)).
18
Case: 23-50668 Document: 00517035265 Page: 19 Date Filed: 01/17/2024
No. 23-50668
Plaintiffs’ claims are traceable to the Commissioner and redressable
by an injunction against him.
B
Plaintiffs have standing, but this alone does not earn them their day in
court. Their claims must also be ripe. In determining whether a claim is ripe,
we must consider two factors: “(1) ‘the fitness of the issues for judicial
decision’ and (2) ‘the hardship to the parties of withholding court
consideration.’” 80 “[A] claim is ‘fit for judicial decision’ if it presents a pure
question of law that needs no further factual development.” 81 “[I]f a claim is
‘contingent [on] future events that may not occur as anticipated, or indeed
may not occur at all,’ the claim is not ripe.” 82
Plaintiffs’ claims are fit for our review. No other factual or legal
developments are required for us to decide this case. The State, however,
argues that READER’s regulatory scheme is not yet established. It points
to § 35.007, which allows the Education Commissioner to “adopt rules as
necessary to administer this chapter,” and § 33.021, which requires TEA to
promulgate its implementing rules for library-collection standards. On
October 27, the Commission published its first proposed rule governing the
implementation of the library-collection standards. 83 The State says that this
rule vests school districts with responsibility for implementing the standards,
provides additional evaluation and selection criteria for school districts, and
_____________________
80
Braidwood Mgmt., 70 F.4th at 930 (quoting Abbott Lab’ys v. Gardner, 387 U.S.
136, 149 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).
81
Id.
82
Id. (alteration in original) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473
U.S. 568, 580–81 (1985)).
83
See 48 Tex. Reg. 6291, 692 (to be codified at 13 Tex. Admin. Code § 4.2)
(proposed Oct. 27, 2023).
19
Case: 23-50668 Document: 00517035265 Page: 20 Date Filed: 01/17/2024
No. 23-50668
may obviate Plaintiffs’ constitutional concerns. But the State does not
explain how the proposed rule affects the rating system or the standards by
which vendors are to rate library materials. Indeed, it can’t because this rule
only affects the library-collection standards.
The State also argues that because READER doesn’t penalize the
absence of an initial rating for a particular book, any harm that might come
from a dispute about a hypothetical future rating hinges on future events that
may or may not occur. According to the State, Plaintiffs will not be injured
until the vendors either refuse to comply with the rating system or rate books
in the wrong categories and then refuse to adopt the Agency’s corrected
ratings and land themselves on the noncompliance list. But the State ignores
Plaintiffs’ immediate economic injury of having to assign ratings to library
material at all. Plaintiffs’ First Amendment challenges to READER are
“pure question[s] of law” that need no further factual or legal
development. 84
Finally, if we withheld our consideration of Plaintiffs’ claims, the
hardship to Plaintiffs would not be minimal, as the State contends. As
explained above, Plaintiffs allege that complying with the law will cost
valuable time and resources. For example, Blue Willow alleged that the
compliance costs alone could put it out of business.
Plaintiffs’ claims are ripe.
C
Having concluded that Plaintiffs have standing to assert their First
Amendment claims and that their claims are ripe for review, we turn to the
_____________________
84
See Braidwood Mgmt., 70 F.4th at 930.
20
Case: 23-50668 Document: 00517035265 Page: 21 Date Filed: 01/17/2024
No. 23-50668
final jurisdictional question: whether Commissioner Morath is entitled to
sovereign immunity.
Generally, “sovereign immunity bars private suits against
nonconsenting states in federal court.” 85 This bar also applies to suits like
this one “against state officials or agencies that are effectively suits against a
state.” 86 Under the Ex parte Young exception to sovereign immunity,
however, a plaintiff can seek prospective injunctive relief “against individual
state officials acting in violation of federal law.” 87 These state officials must
“have some connection with the enforcement of the allegedly
unconstitutional law.” 88 Here, Plaintiffs sued for injunctive relief based on
an ongoing violation of the First Amendment. The question is whether
Commissioner Morath has the required connection to READER’s
enforcement.
To satisfy the required enforcement connection, the state official
must have a duty beyond “the general duty to see that the laws of the state
are implemented.” 89 Rather, the official must have “the particular duty to
enforce the statute in question and a demonstrated willingness to exercise
that duty.” 90 This analysis is “‘provision-by-provision’: The officer must
enforce ‘the particular statutory provision that is the subject of the
_____________________
85
City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019).
86
Id.
87
Id. (citation omitted).
88
United States v. Abbott, 85 F.4th 328, 337 (5th Cir. 2023) (internal quotation
marks and citation omitted).
89
City of Austin, 943 F.3d at 999–1000 (quoting Morris v. Livingston, 739 F.3d 740,
746 (5th Cir. 2014)).
90
Id. at 1000 (quoting Morris, 739 F.3d at 746).
21
Case: 23-50668 Document: 00517035265 Page: 22 Date Filed: 01/17/2024
No. 23-50668
litigation.’” 91 We have defined “enforcement” as “compulsion or
constraint,” 92 so “[i]f the official does not compel or constrain anyone to
obey the challenged law, enjoining that official could not stop any ongoing
constitutional violation.” 93 Plaintiffs need only show a “scintilla of
enforcement by the relevant state official.” 94 We have noted that the
“Article III standing analysis and Ex parte Young analysis ‘significantly
overlap,’” 95 such that “a finding of standing tends toward a finding” that a
plaintiff may sue the official under the Ex parte Young exception. 96
Plaintiffs have shown that Commissioner Morath has a sufficient
connection to READER’s enforcement. The State again urges that
Commissioner Morath’s only enforcement authority is over school districts
and, if Plaintiffs are compelled to or constrained from doing anything, it is by
school districts, not the State.
True, the enforcement here “is not the same type of direct
enforcement found in Ex Parte Young, for instance, where the attorney
general threatened civil and criminal prosecution.” 97 But “such enforcement
is not required.” 98 Plaintiffs have identified specific actions that this court
can enjoin: Commissioner Morath is ultimately responsible for collecting and
_____________________
91
Tex. All. for Retired Ams., 28 F.4th at 672 (quoting Tex. Democratic Party v. Abbott,
978 F.3d 168, 179 (5th Cir. 2020)).
92
Id. (quoting City of Austin, 943 F.3d at 1000).
93
Id.
94
Tex. Democratic Party, 978 F.3d at 179 (internal quotation marks and citation
omitted).
95
City of Austin, 943 F.3d at 1002 (quoting Air Evac EMS, 851 F.3d at 520).
96
Id.
97
Air Evac EMS, 851 F.3d at 519.
98
Id.; see also City of Austin, 943 F.3d at 1001.
22
Case: 23-50668 Document: 00517035265 Page: 23 Date Filed: 01/17/2024
No. 23-50668
posting the vendors’ lists of ratings, reviewing those ratings to determine
whether a corrected rating is required, notifying vendors when their ratings
are overridden, and posting lists of noncompliant vendors on TEA’s website.
And he is responsible for ensuring that school districts comply with
READER’s prohibition on buying material from vendors that violate this
statute. 99
We agree with Plaintiffs that these acts “compel[] them to submit
ratings with which they disagree,” and “constrain[] them from continuing to
do business with school districts if they fail to submit the required ratings or
decline to acquiesce in the State’s revised ratings.” That Commissioner
Morath enforces the law through the school districts doesn’t change our
analysis. 100
Because Commissioner Morath has a sufficient connection to the
statute’s enforcement, Plaintiffs can sue him under Ex parte Young.
IV
Satisfied that we have jurisdiction, we now turn to the merits of the
preliminary injunction. “A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.” 101
_____________________
99
See also supra Part III.A.2; Air Evac EMS, 851 F.3d at 513–14 (“[T]here is
significant overlap between standing and Ex Parte Young’s applicability.”).
100
See supra, Part III.A.1.
101
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
23
Case: 23-50668 Document: 00517035265 Page: 24 Date Filed: 01/17/2024
No. 23-50668
A
We first consider whether Plaintiffs have shown a likelihood of
success on the merits of their First Amendment claims. Plaintiffs assert that
READER violates the First Amendment in three ways. They argue that
it unconstitutionally compels their speech, is unconstitutionally vague, and is
an unconstitutional prior restraint. 102 The State believes that Plaintiffs are
unlikely to succeed on any of these claims because (1) READER does not
affect Plaintiffs’ First Amendment rights at all because the ratings are
government speech, and (2) even if READER compels speech, the
government operations and commercial-speech exceptions to the compelled-
speech doctrine apply.
1
Before turning to the merits of Plaintiffs’ First Amendment claims,
we address the State’s argument that READER involves government
speech and thus does not affect Plaintiffs’ First Amendment rights at all. 103
_____________________
102
In their complaint, Plaintiffs also alleged that READER was an
unconstitutional delegation of government authority. The district court apparently agreed,
although it didn’t make an express holding or provide any analysis on this argument.
Plaintiffs do not address this argument on appeal. Because they are likely to prove a First
Amendment violation on other grounds, we need not address this argument anyway.
103
The State also briefly argues for the first time on appeal that under Rust v.
Sullivan, 500 U.S. 173, 193 (1991), the State “is free to expend public funds on public
interest programs, or not,” so it can “lawfully consider whether a children’s book is
sexually explicit or relevant when deciding how to expend public funds on school library
material.” “As we have consistently held, ‘arguments not raised before the district court
are [forfeited] and cannot be raised for the first time on appeal.’” Sindhi v. Raina, 905 F.3d
327, 333 (5th Cir. 2018) (quoting LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387
(5th Cir. 2007)).
24
Case: 23-50668 Document: 00517035265 Page: 25 Date Filed: 01/17/2024
No. 23-50668
“When government speaks, it is not barred by the Free Speech Clause
from determining the content of what it says.” 104 When “the State is
speaking on its own behalf, the First Amendment strictures that attend the
various types of government-established forums do not apply.” 105 Whether
speech is government speech or private speech requires “a holistic inquiry
designed to determine whether the government intends to speak for itself or
to regulate private expression.” 106 Three types of evidence “guide the
analysis”: “the history of the expression at issue; the public’s likely
perception as to who (the government or a private person) is speaking; and
the extent to which the government has actively shaped or controlled the
expression.” 107 “Our review is not mechanical; it is driven by a case’s context
rather than the rote application of rigid factors.” 108Applying this framework,
we conclude that the ratings are not government speech.
First, the State does not point to any history of book ratings, and we
haven’t found any ourselves. Instead, the State directs us to the “abundant
history” of other labels and media ratings, such as ratings for movies and
video games, and warning labels on cigarettes. In its view, those labels operate
largely the same as READER’s rating system. But READER’s rating
system is different from these examples in two important ways. One, as
Plaintiffs note, movie and video game ratings are entirely voluntary. 109 There
_____________________
104
Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207 (2015).
105
Id. at 215.
106
Shurtleff v. City of Boston, 596 U.S. 243, 252 (2022).
107
Id.
108
Id.
109
See Douglas Dow, Motion Picture Ratings, MTSU: Free Speech Ctr.,
https://firstamendment.mtsu.edu/article/motion-picture-ratings (last updated Sept. 19,
2023) (“The ratings system is voluntary, and there is no legal requirement that filmmakers
submit their films for rating.” (emphasis added)); Frequently Asked Questions, Ent.
25
Case: 23-50668 Document: 00517035265 Page: 26 Date Filed: 01/17/2024
No. 23-50668
are no legal requirements that any entity submit ratings before sale. By
contrast, READER’s rating system requires third-party sellers to rate library
materials before they can sell them to public schools. And two, READER
does not require vendors to apply a government-created warning label on
library material before sale, like tobacco or alcohol warnings. As explained in
Part IV.B.2, the Supreme Court has approved these kinds of warning labels
because they are “purely factual and uncontroversial.” 110 We cannot say the
same for READER’s ratings.
Second, we agree with Plaintiffs that the public is not likely to attribute
the ratings to the Agency. READER does not clearly state how TEA will
post the initial rating lists on its website, and the State’s representations on
this issue have been conflicting. In its brief, it says that the law does not
require TEA “to identify or otherwise associate any vendor with any book or
any rating.” But at the hearing before the district court, the State conceded
that the lists would be posted under each vendor’s name. It explained that
this would be necessary because otherwise, “[t]here would be no other way
for the school district[s] to know who they can purchase from.” We think
that the State’s representation to the district court is most consistent with
READER’s text. 111 So 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.
_____________________
Software Ratings Bd., https://www.esrb.org/faqs (noting that the rating system for
video games is voluntary).
110
See Zauderer v. Off. of Disciplinary Couns. of Sup. Ct. of Ohio, 471 U.S. 626, 651
(1985).
111
See Tex. Educ. Code § 35.002(e) (requiring the Agency to post “each list”
submitted by vendors).
26
Case: 23-50668 Document: 00517035265 Page: 27 Date Filed: 01/17/2024
No. 23-50668
We are not persuaded by the State’s characterization of the ratings as
a “form of consistency review” that is a “purely ministerial task” instead of
an expression of the vendors’ opinion on the subject matter being rated. An
act is ministerial “[w]here the law prescribes and defines the duties to be
performed with such precision and certainty as to leave nothing to the
exercise of discretion or judgment.” 112 Here, the statute requires vendors to
undertake a fact-intensive process of weighing and balancing factors to rate
library material. This process is highly discretionary and is neither precise
nor certain. 113
Third, and finally, the State argues that the ratings are TEA’s speech
because the Act allows TEA to review the vendors’ ratings and issue
corrected ratings. This argument, however, can’t be squared with the text.
Section 35.003 allows TEA to notify the vendors that a corrected rating is
needed. It is the vendor that must issue the corrected rating—not the agency.
The corrected rating is again put on TEA’s website and attributed to the
vendor. And, as the district court concluded, although TEA may review
ratings, it doesn’t have to. So as the district court noted, if TEA decided not
to review the ratings, “the only government action involved would be limited
to placing an unedited list, prepared exclusively by the vendors, online.”
In sum, the district court was correct that the government-speech
doctrine does not apply. The ratings are the vendor’s speech, not the
government’s.
_____________________
112
Morris v. Dearborne, 181 F.3d 657, 674 (5th Cir. 1999) (alteration in original)
(quoting Downing v. Brown, 935 S.W.2d 112, 114 (Tex. 1996)).
113
See generally Jacobellis v. Ohio, 378 U.S. 184, 187 (1964) (describing the “‘dim
and uncertain line’ that often separates obscenity from constitutionally protected
expression”).
27
Case: 23-50668 Document: 00517035265 Page: 28 Date Filed: 01/17/2024
No. 23-50668
2
Because READER affects Plaintiffs’ First Amendment rights, we
turn to the merits of Plaintiffs’ First Amendment claims. We start and end
with their compelled-speech claim because we conclude that Plaintiffs are
likely to succeed on the merits of that claim.
Plaintiffs allege that READER is “textbook compelled speech” in
two ways. First, they argue that it coerces them to review library material and
issue ratings as a condition to selling books to public schools. TEA then posts
those ratings on its website, attributing them to Plaintiffs. Second, if TEA
disagrees with one of Plaintiffs’ ratings, the law requires Plaintiffs to adopt
TEA’s “corrected” rating. TEA then attributes the corrected rating to the
vendors on its website. If Plaintiffs do not comply with either provision, they
are prohibited from selling to school districts.
“[T]he right of freedom of thought protected by the First
Amendment against state action includes both the right to speak freely and
the right to refrain from speaking at all.” 114 Here, Plaintiffs “wish to stay
silent and not express any public view on the appropriateness of various
books.” But the law requires Plaintiffs to “either speak as the State
demands” or suffer the consequences. 115
In response to Plaintiffs’ compelled speech claim, the State argues
that two exceptions to the compelled-speech doctrine apply: (1) the
government-operations exception and (2) the commercial-speech exception.
_____________________
114
Wooley v. Maynard, 430 U.S. 705, 714 (1977); see also 303 Creative, 600 U.S. at
586.
115
See 303 Creative, 600 U.S. at 589.
28
Case: 23-50668 Document: 00517035265 Page: 29 Date Filed: 01/17/2024
No. 23-50668
a
First, government operations. We have recognized that “[t]here is no
right to refrain from speaking when ‘essential operations of government
require it for the preservation of an orderly society.’” 116 This exception has
been applied to sex offender registration requirements, 117 disclosures on IRS
forms, 118 and demographic information for the census. 119 But we have noted
that there is “limited” precedent on the exception. 120 Even assuming that
READER’s rating system is part of an essential government operation, the
ratings are unlike any information to which courts have applied the exception.
READER requires vendors to decide whether library materials are sexually
explicit or sexually relevant according to guidelines that require them to
undertake a contextual analysis of material, weighing and balancing several
factors. This goes beyond a mere disclosure of demographic or similar factual
information. We therefore conclude that the exception does not apply.
b
Second, commercial speech. “Commercial speech is ‘[e]xpression
related solely to the economic interests of the speaker and its audience.’” 121
_____________________
116
United States v. Arnold, 740 F.3d 1032, 1035 (5th Cir. 2014) (quoting United
States v. Sindel, 53 F.3d 874, 878 (8th Cir. 1995)).
117
Id.
118
Sindel, 53 F.3d at 878.
119
Morales v. Daley, 116 F. Supp. 2d 801, 816 (S.D. Tex. 2000); see also Fowler v.
Stitt, No. 22-CV-115-JWB-SH, 2023 WL 4010694, at *8 (N.D. Okla. June 8, 2023) (holding
that an Oklahoma policy forbidding gender changes on birth certificates was not
government-compelled speech).
120
Arnold, 740 F.3d at 1035 (noting “[o]ur limited sister-court precedent”).
121
Express Oil Change, L.L.C. v. Miss. Bd. of Licensure for Pro. Eng’rs & Surveyors,
916 F.3d 483, 487 n.2 (5th Cir. 2019) (alteration in original) (quoting Cent. Hudson Gas &
Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980)).
29
Case: 23-50668 Document: 00517035265 Page: 30 Date Filed: 01/17/2024
No. 23-50668
It has also been defined as “speech which does ‘no more than propose a
commercial transaction.’” 122 The “commercial speech doctrine rests heavily
on ‘the common-sense distinction between speech proposing a commercial
transaction . . . and other varieties of speech.’” 123
Assuming the ratings are commercial speech, we must decide whether
they unconstitutionally compel Plaintiffs’ speech. In Zauderer, 124 the
Supreme Court explained that “the State may at times ‘prescribe what shall
be orthodox in commercial advertising’ by requiring the dissemination of
‘purely factual and uncontroversial information.’” 125 But “outside that
context[,] it may not compel affirmance of a belief with which the speaker
disagrees.” 126
According to the State, Zauderer applies here because the library-
material ratings are “purely factual and uncontroversial” like a nutrition
label; they simply tell the buyer what they are receiving rather than pass
_____________________
122
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748,
762 (1976) (quoting Pittsburgh Press Co. v. Human Rels. Comm’n, 413 U.S. 376, 385 (1973));
see also Gibson v. Tex. Dep’t of Ins.—Div. of Workers’ Comp., 700 F.3d 227, 235 (5th Cir.
2012) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983), for the same
definition).
123
Zauderer, 471 U.S. at 637 (alteration in original) (some internal quotation marks
omitted) (quoting Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455–56 (1987)).
124
“Zauderer is best read simply as an application of Central Hudson, not a different
test altogether.” Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18, 20–21 (D.C. Cir. 2014)
(en banc) (Kavanaugh, J., concurring). It “tells us what Central Hudson’s ‘tailored in a
reasonable manner’ standard means in the context of compelled commercial disclosures:
The disclosure must be purely factual, uncontroversial, not unduly burdensome, and
reasonably related to the Government’s interest.” Id.
125
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 573 (1995)
(quoting Zauderer, 471 U.S. at 651); see also Nat’l Inst. of Fam. & Life Advocs. v. Becerra
(NIFLA), 138 S. Ct. 2361, 2372 (2018) (collecting cases).
126
Hurley, 515 U.S. at 573.
30
Case: 23-50668 Document: 00517035265 Page: 31 Date Filed: 01/17/2024
No. 23-50668
judgment or express a view on the material’s appropriateness for children.
We disagree. The ratings READER requires are neither factual nor
uncontroversial. The statute requires vendors to undertake contextual
analyses, weighing and balancing many factors to determine a rating for each
book. 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. 127
We conclude that neither exception applies. Plaintiffs are thus likely
to succeed on their compelled speech claim. 128 Accordingly, we need not
address whether they are also likely to succeed on their claims that
READER is a prior restraint or unconstitutionally vague.
B
Finally, we turn to the remaining preliminary-injunction factors. We
first consider whether Plaintiffs are likely to suffer irreparable harm absent
_____________________
127
See NIFLA, 138 S. Ct. at 2372 (holding that Zauderer had no application because
the compelled notice required plaintiffs to disclose information about state-sponsored
services, including abortion, which was “anything but an ‘uncontroversial’ topic”). In fact,
one potential application of READER’s ratings has already caused controversy. During
legislative hearings, a state representative testified that READER might require vendors
to ban a Pulitzer Prize winning novel, which garnered media attention. And the availability
of certain books in public-school libraries has been a controversial topic of debate
throughout the country.
128
The State also broadly argues that a school library is a nonpublic forum, so
Plaintiffs’ First Amendment rights “are necessarily limited.” It relies on two student-
speech cases for this proposition, Bethel School District No. 403 v. Fraser, 478 U.S. 675
(1986), and Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). True, these cases
speak to public schools’ ability to limit student speech at school, especially “where the
speech is sexually explicit and the audience may include children.” Fraser, 478 U.S. at 684.
But the State does not explain how these student-speech cases affect Plaintiffs’ compelled
speech claim, and we find nothing in the caselaw that suggests how one might inform the
other. If anything, a school is just as improper as any other place for compelled speech. See
W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
31
Case: 23-50668 Document: 00517035265 Page: 32 Date Filed: 01/17/2024
No. 23-50668
the injunction, and if so, we must “balance the equities and consider whether
an injunction serves the public interest.” 129
1
We have already concluded that Plaintiffs are likely to sustain
economic and constitutional injuries. We now consider whether those
injuries are irreparable. “An irreparable harm is one ‘for which there is no
adequate remedy at law.’” 130
“When an alleged deprivation of a constitutional right is involved,
most courts hold that no further showing of irreparable injury is
necessary.” 131 Indeed, the Supreme Court has said that “[t]he loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” 132 Because READER threatens Plaintiffs’
right to be free from compelled speech, Plaintiffs have shown an irreparable
injury.
They have also shown that they will suffer irreparable economic
injury. We have explained that although compliance costs are not always
recoverable, 133 “complying with a regulation later held invalid almost always
produces the irreparable harm of nonrecoverable compliance costs.” 134 Even
_____________________
129
All. for Hippocratic Med., 78 F.4th at 251.
130
Id. (quoting Louisiana v. Biden, 55 F.4th 1017, 1033–34 (5th Cir. 2022)).
131
Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012)
(quoting 11A Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 2948.1 (2d ed. 1995)).
132
See Elrod v. Burns, 427 U.S. 347, 373 (1976).
133
See Louisiana v. Biden, 55 F.4th at 1034.
134
Texas v. EPA, 829 F.3d 405, 433 (2016) (quoting Thunder Basin Coal Co. v. Reich,
510 U.S. 200, 220–21 (1994) (Scalia, J., concurring in part and in the judgment)).
32
Case: 23-50668 Document: 00517035265 Page: 33 Date Filed: 01/17/2024
No. 23-50668
if the bookstores could pass along some costs to their customers, Blue Willow
has alleged here that the compliance costs alone “threatens the very
existence of [its] business.” 135 Recovering costs won’t resurrect Blue Willow
if compliance costs put it out of business.
2
Plaintiffs’ risk of irreparable harm must be weighed against any injury
the State would sustain. 136 Where the State is appealing an injunction, its
interest and harm merge with the public interest. 137
“When a statute is enjoined, the State necessarily suffers the
irreparable harm of denying the public interest in the enforcement of its
laws.” 138 We agree with the State that it has an interest in protecting children
from harmful library materials. But “neither [the State] nor the public has
any interest in enforcing a regulation that violates federal law.” 139 Indeed,
“[i]njunctions protecting First Amendment freedoms are always in the
public interest.” 140 Because Plaintiffs are likely to succeed on the merits of
their First Amendment claim, the State and the public won’t be injured by an
injunction of a statute that likely violates the First Amendment.
_____________________
135
Id. at 434 (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)).
136
See All. for Hippocratic Med., 78 F.4th at 251.
137
See Veasey v. Abbott, 870 F.3d 387, 391 (5th Cir. 2017) (per curiam); Nken v.
Holder, 556 U.S. 418, 435 (2009).
138
Veasey, 870 F.3d at 391; see also All. for Hippocratic Med., 78 F.4th at 251.
139
All. for Hippocratic Med., 78 F.4th at 251.
140
Opulent Life Church, 697 F.3d at 298 (quoting Christian Legal Soc’y v. Walker,
453 F.3d 853, 859 (7th Cir. 2006)).
33
Case: 23-50668 Document: 00517035265 Page: 34 Date Filed: 01/17/2024
No. 23-50668
V
For these reasons, we AFFIRM the district court’s grant of the
preliminary injunction as to Commissioner Morath. We VACATE the
preliminary injunction against Chairs Wong and Ellis and REMAND to the
district court with instructions to dismiss Plaintiffs’ suit against them. We
DENY AS MOOT the State’s motion for stay pending appeal.
34