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What the fuck is going on with the 5th Circuit? Last week we wrote about it putting a law into effect just after a district court had laid out why it was unconstitutional (this was about mandatory made up “health warnings” and age verification on adult content websites). This followed on the 5th Circuit doing something similar last year, that caused the Supreme Court to give the 5th a gentle wrist slap (which apparently has ignored the message). In both cases, we highlighted how crazy it is for the appeals court to say “put this law into effect immediately” with zero explanation, especially after the district court judges went into great detail to explain why the law is unconstitutional.
And… here we are again, just one week later. Just last week, Judge Alan Albright (the same judge Alan Albright who is somewhat infamous for touring the country telling patent trolls to file cases in his court, where he is the only judge, leading him to get somewhere around 25% of all patent cases in the country) shot down yet another terrible Texas law (apparently sometimes Judge Albright can get things right).
The law in question is HB 900 which requires public school libraries to hide any materials that snowflake Republicans are scared might teach their kids that gay and trans people exist and are human beings. As highlighted last week by Chris Geidner at LawDork, Judge Albright found the whole thing blatantly in violation of the 1st Amendment as it is textbook prior restraint:
First, the Court holds that READER is a prior restraint. Defendants’ claims that “READER does not prohibit communication of any kind” and “Defendants are not forbidding anyone from any speech,” ECF No. 19 at 29, cannot be squared with TEX. EDUC. CODE § 35.002(b), which states, “A library material vendor may not sell library material rated sexually explicit material . . . .” Once TEA has confirmed that a book’s proper content rating is sexually explicit, all future attempts to sell that book to school districts are prohibited by law. This suffices as an “administrative . . . order[] forbidding certain communications when issued in advance of the time that such communications are to occur.” See Alexander, 509 U.S. at 550. Defendants similarly get things backwards by claiming that this issue revolves around “an amorphous right of students to receive information.” ECF No. 19 at 29. But see Martin v. City of Struthers, 319 U.S. 141, 143 (1943) (“The right of freedom of speech and press has broad scope. . . . This freedom embraces the right to distribute literature and necessarily protects the right to receive it.”) (citation omitted) (emphasis added). For students to receive information, someone must be communicating it— namely, library material vendors such as Plaintiffs. READER’s prior restraint is on this communication. And it is no defense that books with sexually explicit or sexually relevant material can still be published and sold elsewhere, for the Supreme Court in Southeastern Promotions reminds us that “[e]ven if a privately owned forum had been available, that fact alone would not justify an otherwise impermissible prior restraint.” See 420 U.S. at 556; see also Schneider v. State of New Jersey, 308 U.S. 147, 163 (1939) (“[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”). It is therefore clear that READER is a prior restraint.
Answering the second question, like in Bantam Books and Southeastern Promotions, READER is an unconstitutional prior restraint. Because it does not consider whether books have literary, artistic, political or scientific value, as required by the Miller test, it sweeps a wide swath of constitutionally protected works within its definition of “sexually explicit material.” See Miller, 413 U.S. at 24. All books sold to a school district, even unquestionably non-obscene ones, are subject to READER’s rating regime. All books sold (or that have been sold) to a school district, even ones without a prior judicial determination of obscenity, are at risk of being labelled sexually explicit, either by the vendor or by the TEA. And, as explained supra Section III.B.4.a, READER nowhere mandates that either library material vendors or TEA evaluate books under Miller’s third prong. Such a regime is far too broad to fit within obscenity as a “narrowly defined exception[]” to the rule against prior restraints. See Se. Promotions, 420 U.S. at 559. And also like in Bantam Books and Southeastern Promotions, READER provides no opportunity for judicial review of the State’s final determinations. Indeed, booksellers have no opportunity to challenge the State’s “corrected” ratings or decision to ban them from selling books to public schools before the TEA, let alone a judicial body. In such circumstances, READER effectively makes TEA’s ratings final, and unappealable, which is unconstitutional. See Freedman, 380 U.S. at 58 (“[T]he requirement [of advance submission of films] cannot be administered in a manner which would lend an effect of finality to the censor’s determination whether a film constitutes protected expression.”).
The ruling is 59 pages with tons of careful details into how this law is unconstitutional and cannot go into effect.
A week later, and the 5th Circuit’s response is “put it into effect immediately” with the following explanation:
That’s it. That’s the whole damn thing.
The 5th Circuit is a lawless circuit.
This is the same thing it did last week with an “administrative stay.” The whole freaking point of “administrative stays” in the 5th Circuit is to temporarily leave in place the “status quo” so that the court can be fully briefed and make a decision. But in both of these cases, the court is using them for the opposite purpose. Rather than keeping in place the status quo in order to have time to be properly briefed, the lawless 5th Circuit is saying “let this law that has been credibly deemed unconstitutional go into effect immediately, and we’ll review the details later.”
That is, to put it mildly, fucking crazy.
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