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)).

[* * *]

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:

[* * *]

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).

Comments

[Martinned2]

My initial reaction was also to be worried about vagueness, not speech compulsion. But it's a tricky one, I agree.

[Rossami]

That was my reaction, too.

That said, I think the problem stopped being borderline when the state added the requirement to "amend" the vendor's own speech with their own ratings, turning it into a much clearer case of compelled speech.

[M L]

A potential buyer of a product or asset will propose or require terms, including representations and warranties pertaining to the product. These are statements the buyer requires the seller to make as a condition of the transaction. They can be anything, and often take forms like "Except as disclosed on schedule A, the following things are true about the asset" or "Schedule B includes an accurate description of X Y and Z.." etc.

Is this routine commercial activity a first amendment violation when the government does it?

And then, with this other part about communicating TEA's ratings, I'm not steeped in the details but - supply agreements again often contain requirements for certain labeling, packaging, documentation, etc, all tailored to whatever the purchaser requires, and subject to any changes in those requirements over the term of a supply agreement which may be 5, 10, 20 years.

Routine commercial activity, but a first amendment violation if the government does it?

[#FFFFFFPride]

The next stop down this slope is some looney judge mandating schools carry this lgbtqp garbage.

[bernard11]

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).

This is weak. The first two examples describe information that the vendor is going to supply, whether compelled by the state or not. Further, the state has plenty of means to determine whether the software or the textbooks are worthwhile or whether it should discount some of the vendors' words as puffery.

And there is the issue of whether the items are well-suited to their purpose. For the software Texas can evaluate features, talk to other users about problems, and in fact see if it is an improvement. Similarly, for textbooks Texas can (if it wants to) evaluate the new books and determine whether the switch would be beneficial.

But that falls apart in the case of the library materials discussed here. If a book contains a picture of a woman's breast, does that mean it's not worthwhile for the students to read it?

One more thing. Why the burden on the vendors? Isn't the state capable of evaluating whether the books are appropriate - which will vary by the students' ages - or is there some reason they don't want to?

[Armchair]

"This is weak. The first two examples describe information that the vendor is going to supply, whether compelled by the state or not"

Never dealt with government contracting before I see. The government demands all sorts of information before buying a good or service.

[Jumaira]

Many private corporations now too require that you affirm that have a "diverse" workforce.

Because we all know that the old days of offices being all white men and being productive are a lie. The way to have productivity today is to have all leadership be black, Hispanic, women, homosexual, disabled, or all of the above.

[Absaroka]

"Why the burden on the vendors?"

Because that's what the customer wants?

We bought a new car recently. We invited dealers to supply us with offers for the car plus 4 rims for snow tires. A couple didn't want to bundle the snow tires. That's certainly OK, and it was equally OK for us to discard their bids.

As a customer, I could ask them to provide a certification that no part of the car was made by child labor, or that it has a 5 star crash rating, or anything else. Vendors who don't want to comply with my arbitrary demands can seen other customers, and I can seek other providers.

[Armchair]

Let's go further here for a second.

The Government regularly demands all sorts of certifications and evaluations in regards to items and services sold...especially to the government. This ranges from certification of lead levels in drinking water to FISMA compliance for IT products to minority owned business certifications for other contracts. Let's use the last one as an example.

Company A applies for a government contract under a minority owned business program. The government goes, "OK, can you testify that you are owned by a minority". The company goes "We're not going to tell you that. That would be compelling our speech. Give us the contract"

The government logically goes... "No".

But under this bizarre understanding, the government can't "compel" the speech of the company (in regards to their minority owned nature), and needs to accept the provisions anyway?

[Bill Poser]

"vendors must issue a recall for all material that is rated sexually explicit and in active use by a school district." This seems highly inappropriate and probably legally problematic in that it is ex post facto and an uncompensated taking. Its one thing to require the vendor to provide information about its offerings so that the purchaser may intelligently decide what to purchase. It is quite another to demand that a vendor that committed no fraud bear the cost of the purchaser changing its mind.

[M L]

At worst, it's a bad business deal/offer with unsatisfactory terms that nobody is forced to accept.

[Bill Poser]

Not if it applies to sales that took place prior to the enactment of the law, which is my understanding.

[M L]

It doesn’t apply to previous sales, I think, except as a condition on future sales. Which nobody has to engage in. From the dissent quoted above:

“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….
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 . . .”

[Soronel Haetir]

I do not have any problems when it comes to requiring speech about items government agents might purchase. I have a lot of problems when it comes to requiring such descriptions for products already transferred.

If you want to care about issues X, Y, Z when it comes to products A, B and C do so before buying, afterwards it is your concern, not mine as the vendor.

[Bill Poser]

The requirement that the vendor rate all of its products seems to me to impose an unnecessary burden. Many vendors will have a range of products only some of which are likely to be of interest to schools. Suppose, for example, that a bookseller has an extensive range of materials in foreign languages not studied in the local schools and which are not the home languages of any significant number of students. Why should they have to issue ratings for these? In some cases, they might not even be able to. My local bookstore will order anything it can get from its distributors, including books in languages which its staff cannot read. A vendor should be able to choose to offer only a subset of its products to a school district.

[Absaroka]

I agree. Or they just might think the burden of compliance not worth the profit in some cases. If they are talking about an order for 100k units of something really profitable, it's worth jumping through a lot of hoops. 10 units of something low margin...not so much.

[M L]

“seems to me to impose an unnecessary burden”

And the implications of that may be that this law is bad policy. Or that the contractual offer being made is unsatisfactory to sellers and should be rejected or pushed back on.

But the idea that this means there’s a first amendment violation seems bonkers to me.

[SimonP]

If Ho agrees with you, it's a good hint that your analysis is ends-motivated and probably analytically sloppy.

No irony at all in re-posting a weeks-old post promising to think more about the issue and inviting contrary viewpoints, with no edits and no link back to the original post. It's almost like you're saying, "Ho agrees with my initial impression, so I'm right, without further reasoning needed."

[I Callahan]

If Ho agrees with you, it’s a good hint that your analysis is ends-motivated and probably analytically sloppy.

Explain. Because the sentence you typed is sloppy thinking at it's most obvious. You start with a narrative and fit what you think is true around that narrative.

[Krenn]

Let me think about this.... I think this is the relevant law:

https://capitol.texas.gov/tlodocs/88R/billtext/html/HB00900I.htm

Which says:

"(a) In this section, "sexually explicit material" means any communication, language, or material, including a written description, photographic image, video image, or audio file, excluding library material directly related to required curriculum, as referenced in Section 28.002, Education Code, that describes or portrays sexual conduct, as defined by Section 43.25, Penal Code, in a patently offensive way, as defined by Section 43.21, Penal Code."

and then:
"(a) In this section, "sexually relevant material" means any communication, language, or material, including a written description, photographic image, video image, or audio file, excluding library material directly related to required curriculum, as referenced in Section 28.002, Education Code, that describes or portrays sexual conduct, as defined by Section 43.25, Penal Code."

So, 'merely; sexually relevant material means that's probably not obscene or offensive as such, and sexually explicit material means that it is also offensive. and there's an exception for material directly related to the school curiculum.

And the law also says:
ggg
" Sec. 35.002. RATING REQUIRED. (a) A school book vendor may
not sell a book to a school district or open-enrollment charter
school before issuing appropriate ratings related to sexually
relevant material and sexually explicit material. (b) A school book vendor may not sell a book containing sexually explicit material to a school district or open-enrollment charter school.

(c) Not later than September 1, 2023, each school book vendor shall develop and submit to the agency a list of each book containing sexually relevant material or sexually explicit material sold by the vendor to a school district or open-enrollment charter school before that date."

I see several problems there....

1. It's retroactive. It appears to require school book vendors to go back, list, rate, and publicize EVERY book they have EVER sold to school districts BEFORE the law was enacted. No way the state can get away with that sort or buyer's remorse.

2. There's an exception to the rating definitions for complying with school curriculum, but how should the vendors know what is or isn't in the school curriculum? much less what was or wasn't in the school curriculum back when any given book was originally sold. And the law seems to assume that all schools would have the SAME curriculum? that can't be true, can it?

3. if these definitions are linked to the penal code, then forcing retroactive testimony sounds an awful lot like a fifth amendment violation.

4. Why does Texas thing it's entitled to even specify what open-enrollment charter schools can or can't buy for their libraries? For that matter, why would a school book vendor even automatically KNOW who it's customers are, if the customers don't want to say? Are school book vendors now required to ask all customers whether or not the customer is legally a public school or open charter school? Is the school book vendor liable if their customer lies about that?

5. If I'm reading this right, I think this law actually applies to school book vendors incorporated or operating in Texas, but selling books to schools OUTSIDE of Texas. Who does Texas thing it is, specifying whether or not a corporation can sell certain books to out-of-state schools, when the out-of-state customer is perfectly willing to buy them as-is?

[M L]

1. The state has a right to decide what content is put in schools. I don't see a constitutional problem with this as far as being a means of curating that content. But is the state also saying they would get a refund for those previous transactions? If so, that seems problematic, but only in a commercial/financial way, not in a free speech way, and even then, if I understand correctly this is just a condition of future business which nobody is forced to accept. In business, if you offer unreasonable terms that nobody accepts, then you'll simply be forced to reconsider.

[vaadu]

How is this different than the ingredients label on a cereal box?
Total Fat
Carbohydrates
Sodium
Protein
Etc

[Brett Bellmore]

OK, imagine for a moment that the FDA required you to issue updated cereal box labels for any cereal your company has ever sold. no matter how long ago.

[M L]

Isn't it: imagine that the FDA wanted to buy 100,000 shipments of cereal from you, and as a condition of the transaction you had to update those labels, or alternatively just tell them to go pound sand and not do the deal?

[Drewski]

Read the opinion. If you still don't understand it, then consider the possibility that intellectual pursuits may just not be for you.

[Stephen Lathrop]

Whatever the pretense, Texas is interrogating the culture-war bonafides of would-be textbook vendors—and not limiting the questions to what is in the books on offer. Texas conditions purchases on the answers. Generalize that to any other ideological test, and then answer whether it ought to be legal.

[David Bremer]

Would you think it different if, say, a school was asking a vendor whether a textbook contains names in problems/examples from a diverse set of cultures? Or for a proposal to include information discussing how the book approaches systemic racism? Or for a question of how an English textbook contains selections from a fair profile of diverse authors?

I suspect that sort of inquiry is made all the time by school districts, and I suspect plenty of school districts use that information when selecting textbooks or books for libraries. Regardless, under this hypothetical scenario, do you think the school is "interrogating the culture-war bonafides" or is it simply asking for information so as to evaluate whether the district wishes to purchase that particular series of books?

I personally don't have an issue for it. I don't want my kids' school giving them books/lessons that contain inappropriate sexual material, and I would prefer that they read a mix of important classic literature and a cross-section of authors. If I think the school tips too far in any direction, I can take the issue up with the school board or at the ballot box.

[Brett Bellmore]

Some elements of the law are perfectly reasonable; Providing ratings of books a company proposes to sell? How can you take exception to that?

Some elements are kind of questionable, but maybe pass, such as requiring the companies to adopt the state's opinions of those books, if they differ from the company's.

Other elements, such as the retroactive rating and recall provision, are flatly crazy.

I can't help but think that the appropriate response to this law is that Texas finds that no publisher is willing to sell them text books, and they find they have to write and print their own.

But if it is upheld, the more likely result is some special purpose corporations are created to resell books to Texas, with no past sales to worry about.

[Drewski]

I'm inclined to think that part of the statute can be salvaged at the merits stage, although I haven't actually gone through it and considered severability. At this point, the panel got it exactly right. Judge Ho just wrote an op-ed that could pass muster as a blog post here but is embarrassing as a dissent.

[mydisplayname]

A somewhat related non-hypothetical hypothetical:

A government entity publishes statutes and rulemaking in a widely-available format which can be read by product X (and many other products). As a convenience to those who wish to actually see the statues and rulemaking, the government entity provides a hyperlink to a site, owned and operated by company Y, which enables free download of product X. It just so happens that company Y has embedded into product X advertisements for product Z, created and sold for a profit by company Y.

Is the government entity providing valuable advertising services to company Y at no cost to company Y? Has the government entity implicitly said that company Y is somehow better than all of the other companies implementing the widely-available format?

So what if the government entity decides it likes (for example) oats... but decides to repeatedly mention -- and provide hyperlinks to -- only those oats offered in a specific form by a specific company?

What if a government entity does _NOT_ ask questions about seemingly equivalent products and instead simply makes its own baseless choice? Tangentially, can a government become so addicted to a product or service that the offeror of that product or service receives special treatment so that the government can easily and reliably get its "fix"?