United States Court of Appeals

for the Fifth Circuit ____________

No. 23-50668

____________

Book People, Incorporated; VBK, Incorporated, doing 

business as Blue Willow Bookshop; Association of 

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 publicschool bookshelves, the Texas Legislature in 2023 passed the Restricting 

Explicit and Adult-Designated Educational Resources Act (READER). In 

United States Court of Appeals

Fifth Circuit

FILED

January 17, 2024

Lyle W. Cayce

Clerk

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2

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 legaldefense 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). 

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parental consent for any “sexually relevant” material.2 It aims to accomplish 

these goals through (1) library-collection standards imposed on school 

districts, and (2) a rating system for all library materials, imposed on librarymaterial vendors.3 Only the rating system affects Plaintiffs, but we address 

both parts in turn.

A

First, the library-collection standards. READER amends Chapter 33 

of the Texas Education Code to require the Texas State Library and Archives 

Commission (the Commission), with approval by majority vote of the Texas 

State Board of Education, to “adopt standards for school library collection 

development.”4 The standards must, in relevant part, prohibit school 

districts from possessing, purchasing, or acquiring “(i) harmful material, as 

defined by Section 43.24, Penal Code; (ii) library material rated sexually 

explicit by the . . . vendor; or (iii) library material that is pervasively vulgar or 

educationally unsuitable as referenced in Pico v. Board of Education, 457 U.S. 

853 (1982).”5 School districts must follow these standards in “developing or 

implementing the district’s library collection development policies.”6 The 

Commission must review and update its standards every five years.7

The district court did not enjoin enforcement of this chapter, and the

library standards are not at issue on appeal. 

_____________________

2 See Tex. Educ. Code §§ 33.021(d)(2)(A)(ii), 35.005.

3 See id. §§ 33.021, 35.001–.008.

4 Id. § 33.021(c).

5 Id. § 33.021(d)(2)(A).

6 Id. § 33.021(c).

7 Id. § 33.021(d)(1). 

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B

What is instead at issue is READER’s vendor-rating system. To 

comply with READER, library-material vendors “may not sell library 

materials to a school district . . . unless [they have] issued appropriate 

ratings” for library materials they have previously sold to a school district or 

open-enrollment charter school8 and that remain in active use by a district or 

school.

9 The Act requires vendors to give all library material a rating of 

“sexually explicit,” “sexually relevant,” or “no rating.”10

The Act defines “sexually explicit” and “sexually relevant” this way:

“Sexually explicit material” means any communication, 

language, or material, including a written description, 

illustration, photographic image, video image, or audio file, 

other than library material directly related to the curriculum 

required under Section 28.002(a), that describes, depicts, or 

portrays sexual conduct, as defined by Section 43.25, Penal 

Code, in a way that is patently offensive, as defined by Section 

43.21, Penal Code.11

“Sexually relevant material” means any communication, 

language, or material, including a written description, 

illustration, photographic image, video image, or audio file, 

other than library material directly related to the curriculum 

required under Section 28.002(a), that describes, depicts, or 

_____________________

8 The Act applies to both school districts and open-enrollment charter schools, but 

we will refer to school districts for simplicity. 

9 Id. § 35.002(a).

10 See id. §§ 35.002(a), 35.003. “Library material” is not defined in the statute, but 

Plaintiffs submit that it could include books, magazines, newspapers, audio and audiovisual 

materials, and reference works.

11 Id. § 33.021; id. § 35.001 (“‘Sexually explicit material’ has the meaning assigned 

by Section 33.021.”).

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portrays sexual conduct, as defined by Section 43.25, Penal 

Code.12

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.”13 And 

it defines “patently offensive” as “so offensive on its face as to affront 

current community standards of decency.”14

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.15 Material rated sexually explicit may not be sold 

to school districts and must be removed from library bookshelves.

16 And 

vendors must issue a recall for all material that is rated sexually explicit and 

in active use by a school district.

17 Material rated sexually relevant may not

be “reserve[d], check[ed] out, or otherwise use[d] outside the school 

library” without written parental consent.18

Vendors must submit to TEA their list of ratings by April 1, 2024.19

TEA must then post “each list submitted . . . in a conspicuous place on the 

_____________________

12 Id. § 35.001(3).

13 Tex. Penal Code § 43.25.

14 Id. § 43.21.

15 Tex. Educ. Code § 35.002(c). 

16 Id. § 35.002(b).

17 Id. 

18 Id. § 35.005.

19 Id. § 35.002(c).

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agency’s Internet website as soon as practicable.”20 The Act requires the 

vendors to conduct this review yearly, with updated ratings due September 1 

of each year.21

1

READER provides the following “rating guidelines” for vendors to 

follow in determining whether material is sexually explicit or sexually 

relevant. First, a vendor “must perform a contextual analysis of the material 

to determine whether the material describes, depicts, or portrays sexual 

conduct in a way that is patently offensive.”22 There are three factors that “a 

vendor must consider” in performing the contextual analysis:

(1) the explicitness or graphic nature of a description or 

depiction of sexual conduct contained in the material;

(2) whether the material consists predominantly of or contains 

multiple repetitions of depictions of sexual or excretory 

organs or activities; and

(3) whether a reasonable person would find that the material 

intentionally panders to, titillates, or shocks the reader.23

In examining these factors, “a vendor must weigh and balance each factor 

and conclude whether the library material is patently offensive, recognizing 

that . . . each instance of a description, depiction, or portrayal of sexual 

conduct contained in a material may present a unique mix of factors.”24 And 

finally, in making the patently offensive determination, READER instructs 

_____________________

20 Id. § 35.002(e).

21 Id. § 35.002(d).

22 Id. § 35.0021(a). 

23 Id. § 35.0021(b). 

24 Id. § 35.0021(c).

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that a vendor “must consider the full context in which the description, 

depiction, or portrayal of sexual conduct appears, to the extent possible, 

recognizing that contextual determinations are necessarily highly factspecific and require the consideration of contextual characteristics that may 

exacerbate or mitigate the offensiveness of the material.”25

2

Once vendorssubmit their ratings, TEA “may review” the “material 

sold by a . . . vendor that is not rated or incorrectly rated by the vendor.”26 If 

TEA undertakes this review and determines that a different rating, or no 

rating at all, should be applied to certain material, “the agency shall provide 

written notice to the vendor,” which “must include information regarding 

the vendor’s duty under this section and provide the corrected rating 

required for the library material.”27

After receiving notice, the vendor then has 60 days to “(1) rate the 

library material according to the agency’s corrected rating; and (2) notify the 

agency of the action taken under Subdivision (1).”28 “The agency shall post 

and maintain in a conspicuous place on [its] Internet website a list of library 

material vendors who fail to comply” after receiving notice.29 School districts 

are prohibited from purchasing library materials from vendors on the 

noncompliance list.30 Vendors on the list may petition the agency for removal 

_____________________

25 Id. § 35.0021(d).

26 Id. § 35.003(a).

27 Id.

28 Id. § 35.003(b).

29 Id. § 35.003(c).

30 Id. § 35.003(d).

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from the list, and TEA may remove a vendor from the list only if it is satisfied 

that the vendor has rated the material according to TEA’s corrected rating.31

C

Plaintiffs are two Texas bookstores, three national trade associations, 

and a legal-defense organization.32 The bookstores have sold and would like 

to continue selling library material to public-school libraries. In July 2023, 

before READER went into effect, Plaintiffs sued the State Defendants33 and 

sought a preliminary injunction under 42 U.S.C. § 1983, alleging that 

READER violates the First and Fourteenth Amendments. Plaintiffs 

asserted various First Amendment theories, including that READER

unconstitutionally compels private speech, is unconstitutionally vague and 

overbroad, is a prior restraint, and is an unconstitutional delegation of 

government authority. Plaintiffs sought to enjoin the State Defendants from 

enforcing READER in its entirety. 

The State opposed the preliminary injunction and moved to dismiss 

the suit under Federal Rule of Civil Procedure 12(b)(1), arguing that 

Plaintiffs’ claims were unripe, that Plaintiffs lacked standing, and that 

Defendants were entitled to sovereign immunity.34

_____________________

31 Id. § 35.003(e).

32 Book People, Inc.; VBK, Inc. d/b/a Blue Willow Bookshop; American 

Booksellers Association (ABA); Association of American Publishers (AAP); Authors 

Guild, Inc.; and Comic Book Legal Defense Fund.

33 Martha Wong, Chair of Texas State Library and Archives Commission; Kevin 

Ellis, Chair of the Texas Board of Education; and Mike Morath, Commissioner of 

Education.

34 Plaintiffs also moved to dismiss under Rule 12(b)(6), but the denial of that motion 

is not before us on appeal.

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The district court denied the motion to dismiss and entered a 

preliminary injunction prohibiting Defendants from enforcing §§ 35.001,

35.002, 35.0021, and 35.003 of READER. It did not, however, enjoin 

enforcement of the library-standards provision35 or other provisions of 

Chapter 35 concerning the State’s review and reporting of certain library 

materials.36 Defendants sought a stay of the injunction in the district court, 

which the court denied from the bench. 

On appeal, Defendants sought a stay pending appeal and,

alternatively, an administrative stay. A different panel of this court granted 

the administrative stay and ordered that the motion to stay pending appeal be 

carried with the case. We now review the district court’s rulings with respect 

to Defendants’ sovereign immunity and Plaintiffs’ preliminary injunction.

II

We review the district court’s standing and sovereign-immunity

determinations de novo.37 And “[w]e review the district court’s grant of 

[Plaintiffs’] preliminary injunction for abuse of discretion, reviewing 

underlying factual findings for clear error and legal conclusions de novo.”38

III

We first address whether Plaintiffs have standing and, if so, whether 

their claims are ripe.

39

_____________________

35 Id. § 33.021.

36 Id. § 35.004–.008.

37 Tex. All. for Retired Ams. v. Scott, 28 F.4th 669, 671 (5th Cir. 2022). We also 

review ripeness de novo. Braidwood Mgmt., Inc. v. EEOC, 70 F.4th 914, 923 (5th Cir. 2023). 

38 Harrison v. Young, 48 F.4th 331, 339 (5th Cir. 2022).

39 All. for Hippocratic Med. v. FDA, 78 F.4th 210, 227 (5th Cir. 2023) (“[A]n 

injunction is always improper if the district court lacked jurisdiction.”), cert. granted sub 

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A

Plaintiffs “bear[] the burden of establishing the three familiar 

elements of standing.”40 They “must have (1) suffered an injury in fact, 

(2) that is fairly traceable to the challenged conduct of the defendant, and 

(3) that is likely to be redressed by a favorable judicial decision.”41 Plaintiffs 

seek injunctive relief, so they must show “a continuing injury or threatened 

future injury, not a past one.”42 To do so, Plaintiffs “must show that ‘the 

threatened injury is certainly impending, or there is a substantial risk that the 

harm will occur.’”43 “[T]he threat of future injury [must be] sufficiently 

likely.”44 Injuries that are predicated “‘on a highly attenuated chain of 

possibilities’ or that ‘require guesswork as to how independent 

decisionmakers will exercise their judgment’” will not suffice.45

_____________________

nom. Danco Lab’ys, L.L.C. v. All. Hippocratic Med., No. 23-236, 2023 WL 8605744 (U.S. 

Dec. 13, 2023), and cert. granted sub nom. FDA v. All. Hippocratic Med., No. 23-235, 2023 

WL 8605746 (U.S. Dec. 13, 2023), and cert. denied, No. 23-395, 2023 WL 8605749 (U.S. 

Dec. 13, 2023).

40 Abdullah v. Paxton, 65 F.4th 204, 208 (5th Cir. 2023) (internal quotation marks 

and citation omitted); Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).

41 Spokeo, 578 U.S. at 338 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61

(1992)).

42 Missouri v. Biden, 83 F.4th 350, 366 (5th Cir. 2023) (internal quotation marks and 

citation omitted), stayed and cert. granted sub nom. Murthy v. Missouri, 144 S. Ct. 7 (U.S. 

Oct. 20, 2023).

43 All. for Hippocratic Med., 78 F.4th at 227 (quoting Susan B. Anthony List v. 

Driehaus, 573 U.S. 149, 158 (2014)).

44 Id.; see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (explaining 

that an injury must be “actual or imminent” meaning that it is “certainly impending”).

45 All. for Hippocratic Med., 78 F.4th at 227 (quoting Clapper, 568 U.S. at 410, 413).

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At this stage, Plaintiffs “must clearly show only that each element of 

standing is likely to obtain in the case at hand.”46 Our analysis will focus on 

the two booksellers’ standing because “[t]he presence of any one plaintiff 

with standing to pursue injunctive relief . . . satisfies Article III’s case-orcontroversy requirement.”47

We first consider injury in fact.

1

The Bookseller Plaintiffs allege that READER unconstitutionally 

compels their speech and that, if they comply with the law, they will suffer 

economic and reputational injuries. 

In a pre-enforcement challenge, Plaintiffs can establish an injury in 

fact if they show that “(1) [they] ha[ve] an intention to engage in a course of 

conduct arguably affected with a constitutional interest, (2) [their] intended 

future conduct is arguably proscribed by the policy in question, and (3) the 

threat of future enforcement of the challenged policies is substantial.”48 We 

conclude that Plaintiffs have met all three elements here.

First, Plaintiffs have alleged their intention to engage in a course of 

conduct arguably affected with a constitutional interest. They have alleged 

that they have sold books to public schools and that they intend to continue 

doing so. Selling books is arguably affected with a First Amendment 

_____________________

46 Missouri v. Biden, 83 F.4th at 366–67 (quoting Speech First, Inc. v. Fenves, 979 F.3d 

319, 330 (5th Cir. 2020)).

47 Id. (emphasis omitted) (citing Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 

547 U.S. 47, 52 n.2 (2006)).

48 Speech First, 979 F.3d at 330 (cleaned up) (quoting Susan B. Anthony List, 573 

U.S. at 161–64).

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interest.49 And Plaintiffs have an interest in selling books without being 

coerced to speak the State’s preferred message—the ratings.

50 The State’s 

position is that READER does not implicate Plaintiffs’ First Amendment

rights at all, but as explained below,51 we are unpersuaded. And for standing 

purposes, Plaintiffs must only prove that the conduct they intend to engage 

in is “arguably affected” with a constitutional interest.52 They have done so. 

Second, READER arguably proscribes Plaintiffs’ continued sales to 

public schools. The two Bookseller Plaintiffs are indisputably “library 

material vendors” under the statute, so they are subject to its rating 

provisions.53 By its plain terms, § 35.002 forbids library-material vendors 

from selling books to school districts until they provide the required ratings.54

_____________________

49 See Prison Legal News v. Livingston, 683 F.3d 201, 212 (5th Cir. 2012) 

(“Government interference with one’s attempts to sell or distribute written material 

unquestionably satisfies Article III’s injury-in-fact requirement.”); see also id. 212 n.3 (“In 

fact, Bantam Books took as its starting point that book distributors have standing to 

challenge censorship schemes.” (citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64 n.6

(1963))); Genusa v. City of Peoria, 619 F.2d 1203, 1218 (7th Cir. 1980) (“The freedom to 

operate a bookstore is unquestionably protected by the First Amendment. Preservation of 

freedom of expression requires protection of the means of disseminating expression.”); Bd. 

of Educ. v. Pico, 457 U.S. 853, 867 (1982) (“The right of freedom of speech and 

press . . . embraces the right to distribute literature, and necessarily protects the right to 

receive it.” (alteration in original) (quoting Martin v. Struthers, 319 U.S. 141, 143 (1943))).

50 See 303 Creative LLC v. Elenis, 600 U.S. 570, 586 (2023) (“Nor does it matter 

whether the government seeks to compel a person to speak its message when he would 

prefer to remain silent or to force an individual to include other ideas with his own speech 

that he would prefer not to include.”).

51 See infra Part IV.A.1.

52 Speech First, 979 F.3d at 330.

53 A library-material vendor “includes any entity that sells library material to a 

public primary or secondary school in [Texas].” Tex. Educ. Code § 35.001(1).

54 Id. § 35.002(a) (“A library material vendor may not sell library materials to a 

school district . . . unless the vendor has issued appropriate ratings . . . .” (emphasis 

added)).

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Thus, the statute arguably “facially restrict[s]” Plaintiffs’ intended future

conduct.55 

Third, we assume that Plaintiffs face a credible threat of enforcement

because the State has provided no “compelling contrary evidence.”56 The 

State’s main argument is that, despite READER’s plain language, the Act 

doesn’t actually prevent Plaintiffs from selling books because READER

lacks a mechanism for Defendants to enforce the rating system or the library 

standards against these Plaintiffs. The State is half right. 

True, the State cannot enforce the library-collection standards against 

Plaintiffs. Although school districts must adhere to Chapter 33’s librarycollection standards, no Plaintiff has any duty under that chapter.

57 No 

Plaintiff brings any claims under Chapter 33, and indeed, the district court 

did not enjoin its enforcement. 

But Chapter 35 facially forbids Plaintiffs from selling books to public 

schools unless they comply with the statute and provide ratings.

58 Still, the 

State maintains that the rating system, too, can be enforced only against the 

school districts—not Plaintiffs. That the State enforces READER through 

school districts is not fatal to Plaintiffs’ standing. Courts have found that 

_____________________

55 See Speech First, 979 F.3d at 335.

56 Id. (collecting cases) (“[In] pre-enforcement challenges to recently enacted (or, 

at least, non-moribund) statutes that facially restrict expressive activity by the class to 

which the plaintiff belongs, courts will assume a credible threat of prosecution in the 

absence of compelling contrary evidence.” (citation omitted)). 

57 See Tex. Educ. Code § 33.021(b) (describing standards “that a school district 

shall consider in developing, implementing, or expanding library services” (emphasis 

added)); id. § 33.0021(c) (describing “standards for school library collection development 

that a school district shall adhere to in developing or implementing the district’s library 

collection development policies” (emphasis added)).

58 Id. § 35.002(a).

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plaintiffs have standing to sue government entities that injure them through 

another entity.59 Although an injury cannot be “‘the result of the 

independent action of some third party not before the court,’ that does not 

exclude injury produced by determinative or coercive effect upon the action 

of someone else.”60 The State admits that the Agency Commissioner is 

empowered to enforce the Act against school districts,

61 which means the

school districts’ purchasing decisions are determined or coerced by the State 

through READER. 

We assume there is a credible threat of enforcement and conclude that 

Plaintiffs have sufficiently established an injury in fact under our preenforcement standing precedent.

Independent of its alleged constitutional injuries, Plaintiffs have also 

established an injury in fact by alleging an economic injury.62 Plaintiffs allege 

that READER causes “significant economic damages” in four ways.

• First, Blue Willow alleges that it has already lost business. 

It has sold over $200,000 in books to Katy ISD in the past 

5–7 years, but as a result of READER, Katy ISD has 

paused all purchasing, including from Blue Willow. 

_____________________

59 See Bennett v. Spear, 520 U.S. 154, 169 (1997) (holding that ranchers had standing 

to challenge an agency’s biological opinion, which caused a third party to reduce the water 

available to the ranchers; the injury of reduced water was fairly traceable to the biological 

opinion even though the third party retained responsibility for water allocation); Air Evac 

EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 513 (5th Cir. 2017) 

(rejecting the defendants’ argument that the plaintiffs could not prove traceability or 

redressability because the challenged statutory provision was “not directly ‘enforced’ 

against [the plaintiffs]”).

60 Bennett, 520 U.S. at 169 (cleaned up).

61 See Tex. Educ. Code § 39.003(a), (d).

62 Plaintiffs also allege reputational injury. We need not reach this issue, however, 

because we find that they have standing based on their constitutional and economic injuries.

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• Second, Plaintiffs allege that they will lose money between 

September 1, 2023 (when the law goes into effect), and 

April 1, 2024 (when ratings are due), because READER

prohibits vendors from selling any books to public schools 

until they have complied with the rating requirements.

• Third, Plaintiffs allege that complying with READER will 

require them to divert extensive time and resources from 

their normal operations. Blue Willow estimates that 

compliance will cost between $200 and $1,000 per book 

and estimates that the cost to rate books already sold will be 

between $4 million and $500 million. It alleges that 

compliance costs alone will put it out of business because 

its annual sales are just over $1 million.

• Fourth, Blue Willow alleges that 20% of its sales are to 

schools or related to school author visits and festivals. It 

alleges that, if schools are no longer able to buy from them, 

it will lose most of this revenue. 

“[E]conomic harm—like damage to one’s business interest—is a 

quintessential Article III injury.”63 We have found a “concrete injury” when 

a plaintiff is “forced to divert time and resources away from their regular 

[business].”64

The State contends that these economic injuries cannot confer

standing because the vendors are not required to participate in the rating 

system and their alleged injuries are not imminent. We are not persuaded. 

Plaintiffs allege that they will be harmed if they comply with READER and 

harmed if they don’t. If Plaintiffs try to comply, they have alleged that it will

_____________________

63 All. for Hippocratic Med, 78 F.4th at 235; TransUnion LLC v. Ramirez, 594 U.S. 

413, 425 (2021) (explaining that “monetary harms” are among the “[t]he most 

obvious . . . traditional tangible harms” that “readily qualify as concrete injuries under 

Article III”).

64 All. for Hippocratic Med., 78 F.4th at 235.

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cost them potentially millions of dollars to rate and review books. And if they 

don’t comply, the law at least facially prohibits them from selling any books 

to schools—which would cost Blue Willow nearly 20% of its revenue. These 

are concrete, cognizable injuries sufficient to confer standing, and the fact 

that the vendors are not required to participate in the program does not 

change that.

65

2

Next, we consider whether Plaintiffs’ injuries are fairly traceable to 

Defendants’ actions and redressable by the requested relief. To prove 

traceability, Plaintiffs must allege “a causal connection between the injury 

and the conduct complained of.”66 “Tracing an injury is not the same as 

seeking its proximate cause.”67 Where, as here, “a causal relation between 

injury and challenged action depends upon the decision of an independent 

third party . . . standing is not precluded, but it is ordinarily substantially 

more difficult to establish.”68 To meet its burden, Plaintiffs “must show at 

the least ‘that third parties will likely react in predictable ways.’”69 And to 

satisfy the redressability requirement, Plaintiffs must show that a “favorable 

_____________________

65 That said, we agree with the State that Katy ISD’s decision to pause purchasing 

due to “uncertainty surrounding [READER]” cannot confer standing. Katy ISD

allegedly paused purchasing until the school board created a procedure for evaluating 

books. Thus, the decision was apparently based on the district’s internal process for

implementing READER and has no connection to Plaintiffs. 

66 Lujan, 504 U.S. at 560.

67 K.P. v. LeBlanc, 627 F.3d 115, 123 (5th Cir. 2010) (citing Bennett, 520 U.S. at 168–

69).

68 California v. Texas, 141 S. Ct. 2104, 2117 (2021) (internal quotation marks and 

citation omitted).

69 Id. (quoting Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566 (2019)).

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decision will relieve a discrete injury to [themselves].”70 It must be “likely, 

as opposed to merely speculative, that the injury will be redressed by a 

favorable decision.”71

Plaintiffs’ injuries are traceable to the State’s enforcement of 

READER, but only to Commissioner Morath. Although Chairs Wong and 

Ellis are responsible for promulgating the library-collection standards, those

standards are not enforceable against Plaintiffs, and Plaintiffs have not 

explained how their injuries are otherwise traceable to Chairs Wong or 

Ellis.72

To enforce READER, Commissioner Morath is required to collect 

ratings from vendors and post them on the Agency’s website.73 He has 

discretion to review vendors’ ratings, and if he does, he must notify vendors

of the updated ratings and their duty to conform their rating to the 

Agency’s.74 He must then post the names of the vendors that don’t accept 

_____________________

70 Air Evac EMS, 851 F.3d at 514 (quoting Larson v. Valente, 456 U.S. 228, 243 n.15 

(1982)).

71 Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 181 

(2000).

72 The State also argues that Chairs Wong and Ellis are entitled to sovereign 

immunity. Although we need not reach this question, we note that we would reach the same 

conclusion because Plaintiffs have not shown that either Wong or Ellis have the required 

connection to READER’s enforcement. They are responsible for formulating the library 

standards for public schools, but “authority to promulgate [policy], standing alone, is not 

the power to enforce that policy” under Ex parte Young. Haverkamp v. Linthicum, 6 F.4th 

662, 670 (5th Cir. 2021) (per curiam). And the policies that Wong and Ellis are responsible 

for promulgating are enforceable only against school districts, not Plaintiffs. See Tex. 

Educ. Code § 33.021(b), (c).

73 Tex. Educ. Code § 35.002(e) (“The agency shall post each list submitted 

under Subsection (c) or (d) in a conspicuous place on the agency’s Internet website as soon 

as practicable.” (emphasis added)).

74 Id. § 35.003(a) (“If the agency determines that the library material is required to 

be rated as sexually explicit material or sexually relevant material or to receive no rating at 

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the Agency’s updated ratings on the Agency’s website.75 As the State 

explained at the hearing before the district court, Commissioner Morath also 

has the authority to enforce § 35.003(d), which prohibits school districts 

from purchasing books from vendors who are on the noncompliance list, 

through a special investigation and sanctions.

76 Because Commissioner

Morath “oversee[s] the [challenged] process”77 and because his actions are 

“among those [that] would contribute to Plaintiffs’ harm,”78 Plaintiffs’ 

injuries can be traced to the Commissioner’s enforcement of READER.79 If 

Commissioner Morath is enjoined, he cannot prohibit school districts from 

purchasing books from any vendors, either because the vendors did not 

initially provide ratings or because they refused to accept the Agency’s 

updated ratings. The ACLU of Texas and Constitutional Law Scholars, as 

amicus curiae, make the good point that enjoining the Commissioner from 

enforcing READER would free Plaintiffs from the injurious dilemma that 

READER creates: either submit unconstitutionally compelled ratings to the 

Agency at great expense or refuse to comply and lose customers and revenue.

_____________________

all under that subsection, the agency shall provide written notice to the vendor.” (emphases 

added)).

75 Id. § 35.003(c) (“The agency shall post and maintain in a conspicuous place on 

the agency’s Internet website a list of library material vendors who fail to comply with 

Subsection (b).” (emphasis added)).

76 Id. § 39.003(a), (d).

77 Air Evac EMS, 851 F.3d at 514 (finding traceability satisfied where “state 

defendants oversee the [challenged] process,” reasoning that the “state defendants’ 

oversight” of the challenged program “places state defendants among those who cause [the 

plaintiff’s] injury”).

78 K.P., 627 F.3d at 123.

79 See Missouri v. Biden, 83 F.4th at 370 (“The dispositive question is whether the 

Individual Plaintiffs’ censorship can also be traced to government-coerced enforcement of 

those policies. We agree with the district court that it can be.” (emphasis omitted)).

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Plaintiffs’ claims are traceable to the Commissioner and redressable 

by an injunction against him.

B

Plaintiffs have standing, but this alone does not earn them their day in 

court. Their claims must also be ripe. In determining whether a claim is ripe,

we must consider two factors: “(1) ‘the fitness of the issues for judicial 

decision’ and (2) ‘the hardship to the parties of withholding court 

consideration.’”80 “[A] claim is ‘fit for judicial decision’ if it presents a pure 

question of law that needs no further factual development.”81 “[I]f a claim is 

‘contingent [on] future events that may not occur as anticipated, or indeed 

may not occur at all,’ the claim is not ripe.”82

Plaintiffs’ claims are fit for our review. No other factual or legal 

developments are required for us to decide this case. The State, however,

argues that READER’s regulatory scheme is not yet established. It points 

to § 35.007, which allows the Education Commissioner to “adopt rules as 

necessary to administer this chapter,” and § 33.021, which requires TEA to

promulgate its implementing rules for library-collection standards. On 

October 27, the Commission published its first proposed rule governing the 

implementation of the library-collection standards.83 The State says that this

rule vestsschool districts with responsibility for implementing the standards, 

provides additional evaluation and selection criteria for school districts, and 

_____________________

80 Braidwood Mgmt., 70 F.4th at 930 (quoting Abbott Lab’ys v. Gardner, 387 U.S. 

136, 149 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).

81 Id. 

82 Id. (alteration in original) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 

U.S. 568, 580–81 (1985)).

83 See 48 Tex. Reg. 6291, 692 (to be codified at 13 Tex. Admin. Code § 4.2) 

(proposed Oct. 27, 2023). 

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may obviate Plaintiffs’ constitutional concerns. But the State does not 

explain how the proposed rule affects the rating system or the standards by 

which vendors are to rate library materials. Indeed, it can’t because this rule 

only affects the library-collection standards.

The State also argues that because READER doesn’t penalize the 

absence of an initial rating for a particular book, any harm that might come 

from a dispute about a hypothetical future rating hinges on future events that 

may or may not occur. According to the State, Plaintiffs will not be injured 

until the vendors either refuse to comply with the rating system or rate books 

in the wrong categories and then refuse to adopt the Agency’s corrected 

ratings and land themselves on the noncompliance list. But the State ignores 

Plaintiffs’ immediate economic injury of having to assign ratings to library 

material at all. Plaintiffs’ First Amendment challenges to READER are 

“pure question[s] of law” that need no further factual or legal 

development.84

Finally, if we withheld our consideration of Plaintiffs’ claims, the 

hardship to Plaintiffs would not be minimal, as the State contends. As 

explained above, Plaintiffs allege that complying with the law will cost 

valuable time and resources. For example, Blue Willow alleged that the 

compliance costs alone could put it out of business.

Plaintiffs’ claims are ripe.

C

Having concluded that Plaintiffs have standing to assert their First 

Amendment claims and that their claims are ripe for review, we turn to the 

_____________________

84 See Braidwood Mgmt., 70 F.4th at 930.

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final jurisdictional question: whether Commissioner Morath is entitled to 

sovereign immunity.

Generally, “sovereign immunity bars private suits against 

nonconsenting states in federal court.”85 This bar also applies to suits like 

this one “against state officials or agencies that are effectively suits against a 

state.”86 Under the Ex parte Young exception to sovereign immunity,

however, a plaintiff can seek prospective injunctive relief “against individual 

state officials acting in violation of federal law.”87 These state officials must

“have some connection with the enforcement of the allegedly 

unconstitutional law.”88 Here, Plaintiffs sued for injunctive relief based on 

an ongoing violation of the First Amendment. The question is whether

Commissioner Morath has the required connection to READER’s 

enforcement. 

To satisfy the required enforcement connection, the state official

must have a duty beyond “the general duty to see that the laws of the state 

are implemented.”89 Rather, the official must have “the particular duty to 

enforce the statute in question and a demonstrated willingness to exercise 

that duty.”90 This analysis is “‘provision-by-provision’: The officer must 

enforce ‘the particular statutory provision that is the subject of the 

_____________________

85 City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019).

86 Id.

87 Id. (citation omitted).

88 United States v. Abbott, 85 F.4th 328, 337 (5th Cir. 2023) (internal quotation 

marks and citation omitted).

89 City of Austin, 943 F.3d at 999–1000 (quoting Morris v. Livingston, 739 F.3d 740, 

746 (5th Cir. 2014)).

90 Id. at 1000 (quoting Morris, 739 F.3d at 746).

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litigation.’”91 We have defined “enforcement” as “compulsion or 

constraint,”92 so “[i]f the official does not compel or constrain anyone to 

obey the challenged law, enjoining that official could not stop any ongoing 

constitutional violation.”93 Plaintiffs need only show a “scintilla of 

enforcement by the relevant state official.”94 We have noted that the 

“Article III standing analysis and Ex parte Young analysis ‘significantly 

overlap,’”95 such that “a finding of standing tends toward a finding” that a 

plaintiff may sue the official under the Ex parte Young exception.96

Plaintiffs have shown that Commissioner Morath has a sufficient 

connection to READER’s enforcement. The State again urges that 

Commissioner Morath’s only enforcement authority is over school districts 

and, if Plaintiffs are compelled to or constrained from doing anything, it is by 

school districts, not the State.

True, the enforcement here “is not the same type of direct 

enforcement found in Ex Parte Young, for instance, where the attorney 

general threatened civil and criminal prosecution.”97 But “such enforcement 

is not required.”98 Plaintiffs have identified specific actions that this court 

can enjoin: Commissioner Morath is ultimately responsible for collecting and 

_____________________

91 Tex. All. for Retired Ams., 28 F.4th at 672 (quoting Tex. Democratic Party v. Abbott, 

978 F.3d 168, 179 (5th Cir. 2020)).

92 Id. (quoting City of Austin, 943 F.3d at 1000).

93 Id.

94 Tex. Democratic Party, 978 F.3d at 179 (internal quotation marks and citation 

omitted).

95 City of Austin, 943 F.3d at 1002 (quoting Air Evac EMS, 851 F.3d at 520).

96 Id.

97 Air Evac EMS, 851 F.3d at 519.

98 Id.; see also City of Austin, 943 F.3d at 1001. 

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posting the vendors’ lists of ratings, reviewing those ratings to determine 

whether a corrected rating is required, notifying vendors when their ratings 

are overridden, and posting lists of noncompliant vendors on TEA’s website. 

And he is responsible for ensuring that school districts comply with 

READER’s prohibition on buying material from vendors that violate this 

statute. 99

We agree with Plaintiffs that these acts “compel[] them to submit 

ratings with which they disagree,” and “constrain[] them from continuing to 

do business with school districts if they fail to submit the required ratings or 

decline to acquiesce in the State’s revised ratings.” That Commissioner 

Morath enforces the law through the school districts doesn’t change our 

analysis.

100

Because Commissioner Morath has a sufficient connection to the 

statute’s enforcement, Plaintiffs can sue him under Ex parte Young.

IV

Satisfied that we have jurisdiction, we now turn to the merits of the 

preliminary injunction. “A plaintiff seeking a preliminary injunction must 

establish that he is likely to succeed on the merits, that he is likely to suffer 

irreparable harm in the absence of preliminary relief, that the balance of 

equities tips in his favor, and that an injunction is in the public interest.”101

_____________________

99 See also supra Part III.A.2; Air Evac EMS, 851 F.3d at 513–14 (“[T]here is 

significant overlap between standing and Ex Parte Young’s applicability.”).

100 See supra, Part III.A.1.

101 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

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A

We first consider whether Plaintiffs have shown a likelihood of 

success on the merits of their First Amendment claims. Plaintiffs assert that 

READER violates the First Amendment in three ways. They argue that

it unconstitutionally compels their speech, is unconstitutionally vague, and is 

an unconstitutional prior restraint.102 The State believes that Plaintiffs are 

unlikely to succeed on any of these claims because (1) READER does not 

affect Plaintiffs’ First Amendment rights at all because the ratings are 

government speech, and (2) even if READER compels speech, the 

government operations and commercial-speech exceptionsto the compelledspeech doctrine apply. 

1

Before turning to the merits of Plaintiffs’ First Amendment claims, 

we address the State’s argument that READER involves government 

speech and thus does not affect Plaintiffs’ First Amendment rights at all.

103

_____________________

102 In their complaint, Plaintiffs also alleged that READER was an 

unconstitutional delegation of government authority. The district court apparently agreed, 

although it didn’t make an express holding or provide any analysis on this argument.

Plaintiffs do not address this argument on appeal. Because they are likely to prove a First 

Amendment violation on other grounds, we need not address this argument anyway. 

103 The State also briefly argues for the first time on appeal that under Rust v. 

Sullivan, 500 U.S. 173, 193 (1991), the State “is free to expend public funds on public 

interest programs, or not,” so it can “lawfully consider whether a children’s book is 

sexually explicit or relevant when deciding how to expend public funds on school library 

material.” “As we have consistently held, ‘arguments not raised before the district court 

are [forfeited] and cannot be raised for the first time on appeal.’” Sindhi v. Raina, 905 F.3d 

327, 333 (5th Cir. 2018) (quoting LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 

(5th Cir. 2007)). 

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“When government speaks, it is not barred by the Free Speech Clause 

from determining the content of what it says.”104 When “the State is 

speaking on its own behalf, the First Amendment strictures that attend the 

various types of government-established forums do not apply.”105 Whether 

speech is government speech or private speech requires “a holistic inquiry 

designed to determine whether the government intends to speak for itself or 

to regulate private expression.”106 Three types of evidence “guide the 

analysis”: “the history of the expression at issue; the public’s likely 

perception as to who (the government or a private person) is speaking; and 

the extent to which the government has actively shaped or controlled the 

expression.”107 “Ourreview is not mechanical; it is driven by a case’s context 

rather than the rote application of rigid factors.”108Applying this framework, 

we conclude that the ratings are not government speech. 

First, the State does not point to any history of book ratings, and we 

haven’t found any ourselves. Instead, the State directs us to the “abundant 

history” of other labels and media ratings, such as ratings for movies and

video games, and warning labels on cigarettes.In its view, those labels operate 

largely the same as READER’s rating system. But READER’s rating 

system is different from these examples in two important ways. One, as 

Plaintiffs note, movie and video game ratings are entirely voluntary.

109 There 

_____________________

104 Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207 (2015).

105 Id. at 215.

106 Shurtleff v. City of Boston, 596 U.S. 243, 252 (2022).

107 Id. 

108 Id. 

109 See Douglas Dow, Motion Picture Ratings, MTSU: Free Speech Ctr.,

https://firstamendment.mtsu.edu/article/motion-picture-ratings (last updated Sept. 19, 

2023) (“The ratings system is voluntary, and there is no legal requirement that filmmakers 

submit their films for rating.” (emphasis added)); Frequently Asked Questions, Ent. 

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are no legal requirements that any entity submit ratings before sale. By 

contrast, READER’s rating system requires third-party sellers to rate library 

materials before they can sell them to public schools. And two, READER

does not require vendors to apply a government-created warning label on 

library material before sale, like tobacco or alcohol warnings. As explained in 

Part IV.B.2, the Supreme Court has approved these kinds of warning labels 

because they are “purely factual and uncontroversial.”110 We cannot say the 

same for READER’s ratings. 

Second, we agree with Plaintiffs that the public is not likely to attribute 

the ratings to the Agency. READER does not clearly state how TEA will 

post the initial rating lists on its website, and the State’s representations on 

this issue have been conflicting. In its brief, it says that the law does not 

require TEA “to identify or otherwise associate any vendor with any book or 

any rating.” But at the hearing before the district court, the State conceded 

that the lists would be posted under each vendor’s name. It explained that 

this would be necessary because otherwise, “[t]here would be no other way 

for the school district[s] to know who they can purchase from.” We think 

that the State’s representation to the district court is most consistent with 

READER’s text.111 So although 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. 

_____________________

Software Ratings Bd., https://www.esrb.org/faqs(noting that the rating system for 

video games is voluntary).

110 See Zauderer v. Off. of Disciplinary Couns. of Sup. Ct. of Ohio, 471 U.S. 626, 651 

(1985). 

111 See Tex. Educ. Code § 35.002(e) (requiring the Agency to post “each list” 

submitted by vendors).

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We are not persuaded by the State’s characterization of the ratings as 

a “form of consistency review” that is a “purely ministerial task” instead of 

an expression of the vendors’ opinion on the subject matter being rated. An 

act is ministerial “[w]here the law prescribes and defines the duties to be 

performed with such precision and certainty as to leave nothing to the 

exercise of discretion or judgment.”112 Here, the statute requires vendors to 

undertake a fact-intensive process of weighing and balancing factors to rate 

library material. This process is highly discretionary and is neither precise 

nor certain.113

Third, and finally, the State argues that the ratings are TEA’s speech 

because the Act allows TEA to review the vendors’ ratings and issue 

corrected ratings. This argument, however, can’t be squared with the text. 

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. So as the district court noted, if TEA decided not 

to review the ratings, “the only government action involved would be limited 

to placing an unedited list, prepared exclusively by the vendors, online.” 

In sum, the district court was correct that the government-speech 

doctrine does not apply. The ratings are the vendor’s speech, not the 

government’s.

_____________________

112 Morris v. Dearborne, 181 F.3d 657, 674 (5th Cir. 1999) (alteration in original)

(quoting Downing v. Brown, 935 S.W.2d 112, 114 (Tex. 1996)).

113 See generally Jacobellis v. Ohio, 378 U.S. 184, 187 (1964) (describing the “‘dim 

and uncertain line’ that often separates obscenity from constitutionally protected 

expression”).

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2

Because READER affects Plaintiffs’ First Amendment rights, we 

turn to the merits of Plaintiffs’ First Amendment claims. We start and end 

with their compelled-speech claim because we conclude that Plaintiffs are 

likely to succeed on the merits of that claim. 

Plaintiffs allege that READER is “textbook compelled speech” in 

two ways. First, they argue that it coerces them to review library material and 

issue ratings as a condition to selling books to public schools. TEA then posts 

those ratings on its website, attributing them to Plaintiffs. Second, if TEA

disagrees with one of Plaintiffs’ ratings, the law requires Plaintiffs to adopt 

TEA’s “corrected” rating. TEA then attributes the corrected rating to the 

vendors on its website. If Plaintiffs do not comply with either provision, they 

are prohibited from selling to school districts.

“[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.”114 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.115

In response to Plaintiffs’ compelled speech claim, the State argues

that two exceptions to the compelled-speech doctrine apply: (1) the 

government-operations exception and (2) the commercial-speech exception.

_____________________

114 Wooley v. Maynard, 430 U.S. 705, 714 (1977); see also 303 Creative, 600 U.S. at 

586.

115 See 303 Creative, 600 U.S. at 589.

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a

First, government operations. 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.’”116 This exception has 

been applied to sex offender registration requirements,117 disclosures on IRS

forms,118 and demographic information for the census.119 But we have noted 

that there is “limited” precedent on the exception.120 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. 

b

Second, commercial speech. “Commercial speech is ‘[e]xpression 

related solely to the economic interests of the speaker and its audience.’”121

_____________________

116 United States v. Arnold, 740 F.3d 1032, 1035 (5th Cir. 2014) (quoting United 

States v. Sindel, 53 F.3d 874, 878 (8th Cir. 1995)).

117 Id. 

118 Sindel, 53 F.3d at 878.

119 Morales v. Daley, 116 F. Supp. 2d 801, 816 (S.D. Tex. 2000); see also Fowler v. 

Stitt, No. 22-CV-115-JWB-SH, 2023 WL 4010694, at *8 (N.D. Okla. June 8, 2023) (holding 

that an Oklahoma policy forbidding gender changes on birth certificates was not 

government-compelled speech).

120 Arnold, 740 F.3d at 1035 (noting “[o]ur limited sister-court precedent”).

121 Express Oil Change, L.L.C. v. Miss. Bd. of Licensure for Pro. Eng’rs & Surveyors, 

916 F.3d 483, 487 n.2 (5th Cir. 2019) (alteration in original) (quoting Cent. Hudson Gas & 

Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980)).

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It has also been defined as “speech which does ‘no more than propose a 

commercial transaction.’”122 The “commercial speech doctrine rests heavily 

on ‘the common-sense distinction between speech proposing a commercial 

transaction . . . and other varieties of speech.’”123

Assuming the ratings are commercial speech, we must decide whether 

they unconstitutionally compel Plaintiffs’ speech. In Zauderer,124 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.’”125 But “outside that 

context[,] it may not compel affirmance of a belief with which the speaker 

disagrees.”126

According to the State, Zauderer applies here because the librarymaterial ratings are “purely factual and uncontroversial” like a nutrition 

label; they simply tell the buyer what they are receiving rather than pass 

_____________________

122 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 

762 (1976) (quoting Pittsburgh Press Co. v. Human Rels. Comm’n, 413 U.S. 376, 385 (1973)); 

see also Gibson v. Tex. Dep’t of Ins.—Div. of Workers’ Comp., 700 F.3d 227, 235 (5th Cir. 

2012) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983), for the same 

definition).

123 Zauderer, 471 U.S. at 637 (alteration in original) (some internal quotation marks 

omitted) (quoting Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455–56 (1987)).

124 “Zauderer is best read simply as an application of Central Hudson, not a different 

test altogether.” Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18, 20–21 (D.C. Cir. 2014) 

(en banc) (Kavanaugh, J., concurring). It “tells us what Central Hudson’s ‘tailored in a 

reasonable manner’ standard means in the context of compelled commercial disclosures: 

The disclosure must be purely factual, uncontroversial, not unduly burdensome, and 

reasonably related to the Government’s interest.” Id.

125 Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 573 (1995)

(quoting Zauderer, 471 U.S. at 651); see also Nat’l Inst. of Fam. & Life Advocs. v. Becerra

(NIFLA), 138 S. Ct. 2361, 2372 (2018) (collecting cases).

126 Hurley, 515 U.S. at 573.

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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.127

We conclude that neither exception applies. Plaintiffs are thus likely 

to succeed on their compelled speech claim.128 Accordingly, we need not 

address whether they are also likely to succeed on their claims that 

READER is a prior restraint or unconstitutionally vague. 

B

Finally, we turn to the remaining preliminary-injunction factors. We 

first consider whether Plaintiffs are likely to suffer irreparable harm absent 

_____________________

127 See NIFLA, 138 S. Ct. at 2372 (holding that Zauderer had no application because 

the compelled notice required plaintiffs to disclose information about state-sponsored 

services, including abortion, which was “anything but an ‘uncontroversial’ topic”). In fact, 

one potential application of READER’s ratings has already caused controversy. During 

legislative hearings, a state representative testified that READER might require vendors 

to ban a Pulitzer Prize winning novel, which garnered media attention. And the availability 

of certain books in public-school libraries has been a controversial topic of debate 

throughout the country. 

128 The State also broadly argues that a school library is a nonpublic forum, so 

Plaintiffs’ First Amendment rights “are necessarily limited.” It relies on two studentspeech cases for this proposition, Bethel School District No. 403 v. Fraser, 478 U.S. 675 

(1986), and Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). True, these cases 

speak to public schools’ ability to limit student speech at school, especially “where the 

speech is sexually explicit and the audience may include children.” Fraser, 478 U.S. at 684.

But the State does not explain how these student-speech cases affect Plaintiffs’ compelled 

speech claim, and we find nothing in the caselaw that suggests how one might inform the 

other. If anything, a school is just as improper as any other place for compelled speech. See 

W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

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the injunction, and if so, we must “balance the equities and consider whether 

an injunction serves the public interest.”129

1

We have already concluded that Plaintiffs are likely to sustain 

economic and constitutional injuries. We now consider whether those

injuries are irreparable. “An irreparable harm is one ‘for which there is no 

adequate remedy at law.’”130

“When an alleged deprivation of a constitutional right is involved, 

most courts hold that no further showing of irreparable injury is 

necessary.”131 Indeed, the Supreme Court has said that “[t]he loss of First 

Amendment freedoms, for even minimal periods of time, unquestionably 

constitutes irreparable injury.”132 Because READER threatens Plaintiffs’ 

right to be free from compelled speech, Plaintiffs have shown an irreparable 

injury.

They have also shown that they will suffer irreparable economic 

injury. We have explained that although compliance costs are not always 

recoverable,133 “complying with a regulation later held invalid almost always

produces the irreparable harm of nonrecoverable compliance costs.”134 Even 

_____________________

129 All. for Hippocratic Med., 78 F.4th at 251.

130 Id. (quoting Louisiana v. Biden, 55 F.4th 1017, 1033–34 (5th Cir. 2022)).

131 Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012) 

(quoting 11A Charles Alan Wright, Arthur R. Miller & Mary Kay 

Kane, Federal Practice and Procedure § 2948.1 (2d ed. 1995)).

132 See Elrod v. Burns, 427 U.S. 347, 373 (1976).

133 See Louisiana v. Biden, 55 F.4th at 1034.

134 Texas v. EPA, 829 F.3d 405, 433 (2016)(quoting Thunder Basin Coal Co. v. Reich, 

510 U.S. 200, 220–21 (1994) (Scalia, J., concurring in part and in the judgment)).

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if the bookstores could pass along some costs to their customers, Blue Willow 

has alleged here that the compliance costs alone “threatens the very 

existence of [its] business.”135 Recovering costs won’t resurrect Blue Willow 

if compliance costs put it out of business. 

2

Plaintiffs’ risk of irreparable harm must be weighed against any injury 

the State would sustain.136 Where the State is appealing an injunction, its 

interest and harm merge with the public interest.137

“When a statute is enjoined, the State necessarily suffers the 

irreparable harm of denying the public interest in the enforcement of its 

laws.”138 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.”139 Indeed,

“[i]njunctions protecting First Amendment freedoms are always in the 

public interest.”140 Because Plaintiffs are likely to succeed on the merits of 

their First Amendment claim, the State and the public won’t be injured by an 

injunction of a statute that likely violates the First Amendment. 

_____________________

135 Id. at 434 (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)).

136 See All. for Hippocratic Med., 78 F.4th at 251.

137 See Veasey v. Abbott, 870 F.3d 387, 391 (5th Cir. 2017) (per curiam); Nken v. 

Holder, 556 U.S. 418, 435 (2009).

138 Veasey, 870 F.3d at 391; see also All. for Hippocratic Med., 78 F.4th at 251.

139 All. for Hippocratic Med., 78 F.4th at 251.

140 Opulent Life Church, 697 F.3d at 298 (quoting Christian Legal Soc’y v. Walker, 

453 F.3d 853, 859 (7th Cir. 2006)).

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V

For these reasons, 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.

Case: 23-50668 Document: 00517035265 Page: 34 Date Filed: 01/17/2024