United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50668 ____________ FILED January 17, 2024 Book People, Incorporated; VBK, Incorporated, doing Lyle W. Cayce business as Blue Willow Bookshop; Association of Clerk American Publishers; Authors Guild, Incorporated; Comic Book Legal Defense Fund; American Booksellers Association,

Plaintiffs—Appellees,

versus

Martha Wong, in her official capacity as the Chair of the Texas State Library and Archives Commission; Kevin Ellis, in his official capacity the Chair of the Texas State Board of Education; Mike Morath, in his official capacity as the Commissioner of the Texas Education Agency,

Defendants—Appellants. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 1:23-CV-858 ______________________________

Before Wiener, Willett, and Douglas, Circuit Judges. Don Willett, Circuit Judge: 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 Case: 23-50668 Document: 00517035265 Page: 2 Date Filed: 01/17/2024

No. 23-50668

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. Plaintiffs—two Texas bookstores, three national trade associations (representing booksellers, book publishers, and book authors), and a legal- defense organization—sued for injunctive relief, alleging that READER violates their rights under the First and Fourteenth Amendments. The district court granted Plaintiffs’ motion for a preliminary injunction. Texas immediately appealed. The question presented is narrow: Are Plaintiffs likely to succeed on their claims that READER violates their First Amendment rights? Controlling precedent suggests the answer is yes. We AFFIRM the district court’s grant of the preliminary injunction as to Commissioner Morath. We VACATE the preliminary injunction against Chairs Wong and Ellis and REMAND to the district court with instructions to dismiss Plaintiffs’ suit against them. We DENY AS MOOT the State’s motion for stay pending appeal. I Texas has about 5.3 million schoolchildren and nearly 9,000 K–12 campuses. In 2023, the Texas Legislature passed READER, which regulates the sale and purchase of public-school library materials. 1 The Act’s goals are to keep “sexually explicit” material out of school libraries and to require

_____________________ 1 88th Leg., R.S., ch. 808, 2023 Tex. Sess. Law Serv. 2539 (H.B. 900) (codified at Tex. Educ. Code §§ 33.021, 35.001–.008).

2 Case: 23-50668 Document: 00517035265 Page: 3 Date Filed: 01/17/2024