After Inexplicably Allowing Unconstitutional Book Ban To Stay Alive For Six Months, The Fifth Circuit Finally Shuts It Down
from the nonsensically-delaying-justice dept
Texas is in a close race with Florida for the title of “Most Unconstitutional Laws Enacted.” Florida’s legislators will probably end up taking this title because they seem crazier/more productive than their counterparts in Texas.
But let’s not encourage those Texas underachievers! These are bad laws written by worse people. They’re almost universally incapable of surviving a constitutional challenge.
Unless they’re passed in the Fifth Circuit. Then all bets are off. The Fifth Circuit Court of Appeals has upheld obviously unconstitutional laws twice in recent months. And six months ago it chose to allow Texas to enforce its unconstitutional book ban simply by refusing to keep an injunction put in place by the district court.
It’s not like it was a close question. The lower court’s ruling explained in detail how the state’s READER Act (Restricting Explicit and Adult-Designated Educational Resources) violated the Constitution so hard it could not possibly be allowed to remain in force. This decision was appealed and, last September, the Appeals Court inexplicably decided the law could be enforced until it finally got around to examining the case.
Nearly six months later, the Appeals Court has finally handed down its ruling. And it’s not even a close question here, either, which makes this delay all that more frustrating.
The law requires book vendors selling to school libraries to issue sexual-content ratings for all books they have sold or will sell. Books containing “sexually explicit” or “sexually relevant” content must be flagged as such, subjecting them to possible removal or restricted access.
Books flagged by the new rating system must be submitted to the Texas Education Agency (TEA), which enforces the restriction/removal process. Any books sold in the past that make the list must be “recalled” from the educational institutions that purchased them. The law also requires booksellers to list flagged books “in a conspicuous place on the agency’s Internet website.”
Clearly the law violates the First Amendment. Not only is it prior restraint (because it deters booksellers from offering certain books for sale), it’s also compelled speech — the forcible application of ratings to books in order to continue selling books to school libraries.
As the book vendor plaintiffs point out, sales are pretty much nonexistent as schools have paused all purchasing until the rating system is in place. They also point out it could cost several million dollars to vet all past and present books carried by these vendors — something that will likely put at least one vendor (Blue Willow) completely out of business.
The state argued that even if those allegations are true, the government can still violate the First Amendment because the “commercial speech” exception applies. While it’s true commercial speech can be regulated to ensure consumers receive factual and accurate information, that’s not what’s happening here. From the opinion [PDF]:
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 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.
And while “thinking about the children” can sometimes be a cognizable government interest demanding a limited incursion on constitutional rights, this ain’t it, Texas.
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.”
The long-paused injunction is back on. As the court notes, there’s very little chance the state of Texas will be harmed by being unable to enforce a statute that “likely violates the First Amendment.” It goes back down to the court that got this right the first time. And, with any luck, this temporary injunction should swiftly be made permanent.
Filed Under: 1st amendment, 5th circuit, book ban, free speech, texas, zauderer
Comments on “After Inexplicably Allowing Unconstitutional Book Ban To Stay Alive For Six Months, The Fifth Circuit Finally Shuts It Down”
/s/Inexplicably/Indefensibly/
A friendly editorial suggestion: while I think many of us can think of explanations for the Fifth’s unwillingness to act on this stupid law, it’s clear that doing so was a gross dereliction of duty.
So I propose modifying the headline to read “After Indefensibly Allowing Unconstitutional Book Ban To Stay Alive For Six Months, The Fifth Circuit Finally Shuts It Down”
There’s a simple explanation. They knew even they couldn’t do the mental gymnastics required for this to pass Constitutional muster, but they wanted it to stand anyway for as long as possible.
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On the one hand that would explain it, however the counter argument is ‘when has that ever stopped them before?’
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I mean, that seems to be the standard operation. They virtue signal to their base by “doing something” and “for the children”. Then, after wasting millions on lawsuits and fines and other consequences for trying to break the law, they blame Democrats and SJWs for having less money and try it again. Bonus points when it’s a company they own that clearly benefits from the wasted money…
I dont mind opinions.
But,
Who is to say, Whose is MORE appropriate then Others?
WE NEED TO CREATED A STATE THAT CAN HOLD ALL CONSERVATIVE PEOPLES, and let them have a debate on What is what.
Live by the BOOK(?), Die by the Book(?).
I can not defend being Conservative, unless you can give me a Basis for the Rules and regulation of WHERE IN HELL you get What Should be, What?
40+ different Christian sects, all with Minor changes to opinion of what and HOW the Bible is read and practiced.
I see those that Raise and praise the Bible and carry a GUN?? Isnt that what Christ was fighting?
The Word conservative is Only being used to Cover up what they all want, and its ALL different. If we dont know what you are talking about, HOW can we FIX YOU OF the environment you live in.
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Christ chased temple merchants off with a fucking bullwhip. He did this because they were using His Father’s name to exploit people.
Not only would Christ likely be carrying a gun, but he would likely be lining up his sights on those most fervently toting the Bible.
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To add to this, repentance is required for grace. There is no repentance among the right wing for the hurt that ripples through the fabric of society from their sins.
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While I agree that Jesus would likely harshly condemn most of the most fervent Bible thumpers—far more so than nonbelievers, sinners, or enemies—I don’t agree with your idea of him toting a gun around. Let me know when a bullwhip can kill people anywhere near as readily as a gun, then the comparison might be apt.
Though, I don’t recall him using a whip in the first place, just overturning tables and stuff. Why would he even have had a whip on his person in the first place, anyways? I could just be misremembering, though, and it’s not a big deal either way for me.
Outside of that, though, I don’t recall any other instance where he uses force against anyone. He seemed to prefer using words against the ones who misused his Father’s name. The closest I can think of is his casting out demons (and even then, he really just convinced them to possess a bunch of pigs instead or something) and the time he cursed a fig tree (which is clearly meant as a metaphor for what would/did happen with the temple merchants, anyways). He even chastised Peter for trying to defend Jesus using a sword when Judas betrayed him.
I just can’t see that Jesus—the one who’d tell people to forgive “not seven times, but seventy times seven”, to “turn the other cheek”, “love thy enemies”, and treat others as they would want to be treated—turning a gun on people.
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The Bible leaves out most of his adolescence. And you might want to brush up on what the second coming is about. It’s not peace and love for unrepentant sinners.
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I’m sure it was a buddy-comedy, with The Big JC and his rowdy band partying it up
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Revelations reads more like a fever dream than an actual prophecy. I’m not convinced that it should have been in the Bible in the first place. And as for the Bible leaving out Jesus’s adolescence, what is your point? Nothing else talks about his adolescence, either, so nobody has any idea about what he was like at that age.
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Revelations is a weird thing. I grew up in a religious school, but because it was in the UK we never got taught any kind of literalism or end times stuff, and it was never a function or public or political life like it is in the US. By the time I learned about things like the Rapture or Revelations in terms of the Evangelical idea of it, I’d already moved way past the idea that the Bible was anything other than useful parables and morality plays.
If I take anything from it mo, it’s things like Jesus would have been very angry at people profiteering from the church and that you should welcome those different from yourself. Which doesn’t mesh well with the “everything’s literal, even those stuff that contradicts the other suff, and you should hate in order to be raptured” take some seem to have.
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There have been works that try to fill in those years, the fact that he might have been sexually active as an adult or that he did spend a lot of time hanging around sex workers. They tend to get banned, and IIRC there’s some heavy editing around the council of Nicaea.
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As bhull242 says, there’s absolutely no mention of a whip of any description in the relevant verse.
Re: For those others
I found a site with the simplified reading the the laws from the bible.
From the original.
To those that Wish to live by the Laws of the bible.. Good luck, and dont tell your wife or children.
https://www.jmu.edu/dukehallgallery/exhibitions-past-2018-2019/the-613-mitzvot.shtml
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Theoretically, even if we could put them all in one state, there’s nothing stopping them from leaving that state and trying to force others to go along with their further warped ideas.
You know, like Karens already do?
MAGA-Republicans want to rule over everybody. ☹️
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Not in elementary schools
I’m against all book bans but let’s not test the limits of the first amendment by using children 11 and younger as the battleground.
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Ah, don’t kid yourself, davec.
You’ll gladly let 11 year olds be the battleground if it means not inconveniencing the people you like. Like Uvalde cops.
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How does this get through, but if I include a link to a story from /r/NotADragQueen, that’s enough for my post to never appear?
Because it likely contains disturbing stuff? Also, I’d imagine Reddit links get caught in moderation automatically.
At a guess, because you’re posting anonymously, links are more likely to get caught by the spam filter than if you don’t include one? The spam filter here is manually moderated so it’s easy for things to get overlooked as IIRC they get hundreds, if not thousands, of posts a day in there.
But, if I understand that subreddit well enough, the point is easily communicated without a direct link – people claim that drag queen are the biggest threat, yet when actual pedos and groomers are located it’s way more likely to be religious leader and almost never a drag queen. Which these people didn’t even care about until they had to stop attacking gay people in general and focus their hate on trans people, who they don’t understand are not the same as crossdressers or drag performers…
That’s nonsense.
Everybody knows that assigned-male-at-birth individuals wearing women’s clothes and putting on thick makeup and being FABULOUS is not disturbing. Anyone who disagrees is obviously a homophobe, duh.