Can the Government Say: If You Want to Sell Us These Products, You Must Answer Our Questions About Them?

From today's dissent from denial of rehearing en banc in Book People, Inc. v. Wong, written by Judge James Ho and joined by Jones, Smith, Duncan, and Engelhardt:

States have a profound interest in protecting the innocence of children from various adult activities. We don't let children buy alcohol. We don't let them gamble. They're not supposed to smoke.

We also shield them from sexually explicit materials. Nothing in the First Amendment prevents states from taking steps to shield children from such content. See, e.g., Ginsberg v. New York (1968) ("The well-being of its children is of course a subject within the State's constitutional power to regulate," "justify[ing] … limitations … upon the availability of sex material to minors"); FCC v. Pacifica Found. (1978) ("Bookstores and motion picture theaters … may be prohibited from making indecent material available to children."); New York v. Ferber (1982) ("we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights"); Thompson v. Oklahoma (1988) (in all "50 States," "no one under age 16 may purchase pornographic materials"); see also Pope v. Illinois (1987) (Stevens, J., dissenting) ("As for prohibiting sale or exhibition of sexually explicit material to minors … it has long been established that the State may go beyond the constitutional definition of obscenity.")….

The READER Act should be easy to affirm under these principles. The Act simply prohibits public school districts and open-enrollment charter schools from possessing, acquiring, and purchasing content with sexually explicit material for public school libraries. To facilitate transactions with book vendors, the Act asks vendors to inform the State if a book contains sexually explicit or sexually relevant material before selling it to a school district. It also asks vendors to inform the State of any books containing this material previously sold to a school district. And it directs the Texas Education Agency to post the names of books sold to school districts containing this material.

There is no basis for holding the READER Act unconstitutional under the First Amendment. The Supreme Court has long affirmed that schools have "the authority to remove books [from a school library] that are vulgar." Bethel Sch. Dist. No. 403 v. Fraser (1986) (citing Bd. of Educ. v. Pico (1982) (plurality opinion), … (Blackmun, J., concurring in part and in judgment), and … (Rehnquist, J., dissenting)).

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The panel concluded that the READER Act violates the First Amendment because the Act  unconstitutionally compels speech.

But I don't see how. The READER Act doesn't compel anyone to say anything. It simply provides that any vendor who wishes to sell books to public schools must answer certain questions prior to the sale—just as ordinary consumers often ask questions of merchants before deciding whether to make a purchase. As the panel acknowledged, the Act merely "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."

In short: The business can decline to respond, and the consumer can decline to purchase. That's not compelled speech—that's consumer speech.

The panel did not cite a single case that applies the compelled speech doctrine when the government is asking questions as a potential consumer— rather than compelling speech as a regulator armed with the coercive powers of the state. Every case cited by the panel involves government as regulator, not consumer. See, e.g., W.V. State Bd. of Educ. v. Barnette (1943) ("compelling the flag salute and pledge transcends constitutional limitations … and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control"); Wooley v. Maynard (1977) ("Here, as in Barnette, we are faced with a state measure which forces an individual, … to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable."); 303 Creative LLC v. Elenis (2023) ("Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.")….

According to the denial of rehearing order,

In the en banc poll, eight judges voted in favor of rehearing (Chief Judge Richman and Judges Jones, Smith, Elrod, Ho, Duncan, Engelhardt, and Oldham), and nine judges voted against rehearing (Judges Stewart, Southwick, Haynes, Graves, Higginson, Willett, Wilson, Douglas, and Ramirez).

Here is my post from when the panel opinion was handed down:

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From today's Fifth Circuit decision in Book People, Inc. v. Wong, written by Judge Don Willett and joined by Judges Jacques Wiener and Dana Douglas:

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 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….

The Act requires vendors to give all library material a rating of "sexually explicit," "sexually relevant," or "no rating." …

"Sexually explicit material" means any … material, … other than library material directly related to the curriculum required under Section 28.002(a), that describes, depicts, or portrays sexual conduct, … in a way that is patently offensive ….

"Sexually relevant material" [is defined the same way, but without the "patently offensive" requirement -EV].

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."And it defines "patently offensive" as "so offensive on its face as to affront current community standards of decency."

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. Material rated sexually explicit may not be sold to school districts and must be removed from library bookshelves. And vendors must issue a recall for all material that is rated sexually explicit and in active use by a school district. Material rated sexually relevant may not be "reserve[d], check[ed] out, or otherwise use[d] outside the school library" without written parental consent…. TEA must … post "each list submitted … in a conspicuous place on the agency's Internet website as soon as practicable." …

READER provides the following "rating guidelines" for vendors to follow in determining whether material is sexually explicit or sexually relevant. [Details omitted. -EV] … Once vendors submit their ratings, TEA "may review" the "material sold by a … vendor that is not rated or incorrectly rated by the vendor." If TEA undertakes this review and determines that a different rating, or no rating at all, should be applied to certain material, … the vendor then [must] "… rate the library material according to the agency's corrected rating …." ….

The court upheld a preliminary injunction blocking the law. It began by concluding that READER compels private speech, and doesn't just involve government speech (the way a government-administered rating system likely would); an excerpt:

[T]he public is not likely to attribute the ratings to the Agency…. [A]lthough 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….

[T]he State argues that the ratings are TEA's speech because the Act allows TEA to review the vendors' ratings and issue corrected ratings…. [But] 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….

And the court concluded that the compulsion was likely unconstitutional:

"[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." 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….

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.'" This exception has been applied to sex offender registration requirements, disclosures on IRS forms, and demographic information for the census. But we have noted that there is "limited" precedent on the exception. 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….

"Commercial speech is '[e]xpression related solely to the economic interests of the speaker and its audience.'" It has also been defined as "speech which does 'no more than propose a commercial transaction.'" … Assuming the ratings are commercial speech, we must decide whether they unconstitutionally compel Plaintiffs' speech. In Zauderer v. Office of Disciplinary Counsel (1985), 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.'" But "outside that context[,] it may not compel affirmance of a belief with which the speaker disagrees."

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 {the explicitness or graphic nature of a description or depiction of sexual conduct contained in the material[,] … whether the material consists predominantly of or contains multiple repetitions of depictions of sexual or excretory organs or activities[,] and … whether a reasonable person would find that the material intentionally panders to, titillates, or shocks the reader} 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.

I need to think about this more, but my tentative reaction is to be skeptical of the court's rationale. The government isn't generally ordering all publishers to rate their books. Rather, it is saying that, if you want to sell your books to a government purchaser, you have to give us certain information, which we'll use in various ways, including conveying it to the public. That seems to be a permissible requirement for the government to impose as buyer. (I acknowledge that this requirement isn't just for books sold to the State of Texas, but also for books sold to political subdivisions; but from a federal constitution perspective, that's all "the state," since the state Legislature has power over the state's subdivisions.)

Thus, for instance, if Texas is considering buying new versions of software, I think it can require companies to provide statements explaining how the new versions are better than the old (and thus why upgrading is justified), even if the statement is evaluative and not "purely factual and uncontroversial." If it's considering buying new textbooks for its college classes, I think it can require companies to provide statements explaining how they think their textbooks are better than their rivals', though of course that would be far from "purely factual and uncontroversial." And if it's considering buying new books for its libraries, I think it can require companies to state whether the books contain certain kinds of material (whether sexual content or vulgarities or racial slurs or what have you). The state doesn't have to buy products whose vendors aren't willing to answer the state's questions about the products.

To be sure, the requirement that companies change their ratings to comply with the TEA's demanded "correct[ions]" might be improper. (Why not have the TEA at that point just note on its site and in its communications to libraries the TEA's own rating, rather than requiring companies to provide, in their own voice, a rating that differs from what they themselves thought was right?) But as I read the court opinion, it applies to the requirement that the publishers provide their own ratings, and not just a requirement that they adopt the TEA's rating.

The court opinion also isn't focused on the requirement being for products that are themselves constitutionally protected, such as books; its logic would, I think, apply to my software example, and to lots of other examples: The court is focusing on the compulsion that the seller speak about its own products, something that sellers of all sorts of products (books or otherwise) do. And in any event, as my textbook example illustrates, I think the government can indeed insist that, before it buys any product—constitutionally protected or otherwise—the seller be willing to tell the government what the product does or contains.

Finally, note that the challengers argued that the READER requirements are unconstitutionally vague, and they might well be right, especially as to "so offensive on its face as to affront current community standards of decency" (which is related to one prong of the obscenity test, but might be impermissible when the other prongs, such as the serious value or the shameful-or-morbid-interest prong, are omitted). But the panel expressly declined to rest its decision on the vagueness argument, since it concluded that the law was likely an unconstitutional speech compulsion.

Again, though, this is my tentative thinking; I'd love to hear what others think (and of course we see that the three judges don't think about this the way I do).