In recent years, book bans have emerged as a significant issue in our ongoing culture wars. In 2022, the most recent year for which data is available, more books were challenged in schools and libraries than in the previous three years combined. Bans have largely been instituted at the local level, on a case-by-case basis, as activists and parents target titles that discuss topics they view as controversial—race, gender, sex, and sexual identity are common themes, though not the only ones that end up challenged—but in the 2023 legislative session, Texas attempted to intervene on the topic in a more comprehensive way. 

The result was House Bill 900, a law that, among other things, required booksellers to rate the contents of every book they sold to school libraries and created penalties for vendors that sold books the state found inappropriate to those institutions. In June, the bill was signed into law by Governor Greg Abbott, who claimed that “some school libraries have books with sexually explicit and vulgar materials” as he declared that he was “signing a law that gets that trash out of our schools.”

Shortly after Abbott signed the law, a pair of Texas bookstores sued the state. The lawsuit, which was filed by Houston’s Blue Willow Bookshop and Austin-based BookPeople, along with a group of free speech organizations, argued that HB 900’s requirement essentially compelled the private businesses to engage in speech by requiring them to create a rating system for the materials they sold. 

The suit was successful in a Waco district court in the fall, but the trajectory of lawsuits that challenge laws passed in the Lege on constitutional grounds is familiar to longtime observers: when a lower-level federal court rules against Texas’s law, the decision is often overturned by the highly conservative U.S. Court of Appeals for the Fifth Circuit. At that point, plaintiffs have to decide whether to appeal the decision to the increasingly conservative U.S. Supreme Court, and risk setting a broader precedent, or to let the Fifth Circuit’s decision lie. 

In the case of HB 900, though, no such calculus was necessary. On Monday, the Fifth Circuit issued an uncommon ruling against the state, rejecting arguments from the Texas Education Agency—the suit’s lead defendant—that claimed that requiring booksellers to rate books was a mere administrative task. “This process is highly discretionary and is neither precise nor certain,” the court’s opinion read. “The statute requires vendors to undertake contextual analyses, weighing and balancing many factors to determine a rating for each book,” a process the opinion said was “anything but the mere disclosure of factual information.” 

The plaintiffs had several issues with the law—tasking short-staffed booksellers with reading every single book any customer wanted to order would be an impossible task, for instance—but, according to Blue Willow owner Valerie Koehler, the real sticking point was being required by law to offer opinions on the contents of the books she sold. “I think common sense has prevailed,” she told Texas Monthly. “It’s not really up to the vendor to rate these books, where they’re compelling us to rate a book that they could then say, ‘No, that’s not a good rating.’ They were making us take a stand, and then were still in charge of whether our standards were right or not.” 

The future of the law is still undecided—representatives from the office of the attorney general and the Texas Education Agency did not return requests for interviews—but the state would face an uphill battle with the Supreme Court after losing at the typically reliable Fifth Circuit. Koehler is accordingly optimistic—and reflective—about the struggle. 

“We’ve never said, ‘We’re not going to carry that book because we don’t believe in it.’ We’ll carry it on our shelves if we think someone is going to come in and ask for it. That’s what we do as a business,” she said. “I didn’t take a stand against Greg Abbott; I took a stand as a business, for common sense, and my First Amendment rights as a bookseller.”