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Suspended Texas state Attorney General Ken Paxton, right, talks with his attorney Tony Buzbee, left, before closing arguments in his impeachment trial in the Senate Chamber at the Texas Capitol, Friday, Sept. 15, 2023, in Austin, Texas. (AP Photo/Eric Gay)
Mere days after being acquitted of corruption and misconduct allegations by a Republican-led state senate, Texas Attorney General Ken Paxton (R) has jumped right back into the fray, lending his name to a brief supporting restrictive book regulations in the Lone Star State.
The failed impeachment effort against Paxton, who was accused of taking bribes, obstructing justice, issuing improper grand jury subpoenas, and violating state whistleblower laws by firing employees who reported his misconduct, came to an end Saturday. Thirty state senators spent around eight hours deliberating what they had heard from more than a dozen witnesses during the two-week trial, and, according to the Texas Tribune, not one of the 16 articles of impeachment came close to garnering the necessary 21 votes to convict.
By Wednesday, Paxton had submitted a brief to the Fifth U.S. Circuit in a case challenging the state’s newly enacted so-called READER law, which ostensibly aims to “create standards for ‘sexually explicit’ and ‘sexually relevant’ materials” available in school libraries. The law — officially titled the Restricting Explicit and Adult-Designated Educational Resources Act — would require booksellers to “categorize any books they sell or have ever sold to schools according to those standards and issue a recall for any ‘sexually explicit’ materials that they sold to schools.” It would also prohibit schools from purchasing any material deemed “sexually explicit” and obtain parental consent for students to read or check out any books deemed “sexually relevant.”
A group of booksellers who had contracted with the state to provide books to public schools sued, alleging that the law is unconstitutionally vague and overbroad, forced compelled speech, and acted as a prior restraint. On Monday, U.S. Federal Judge Alan Albright agreed, finding that the law violates the Free Speech clause of the First Amendment, and dismissed the state defendants’ motion to dismiss. He also issued an injunction barring enforcement of the law.
Albright appeared to take issue with the fact that third-party booksellers — and not state officials — were being tasked with creating the “sexually explicit” and “sexually relevant” standards, which could be reversed or overruled at any time by a state education agency.
“For whatever reason, Texas chose not to have anyone employed by the state at any level make the initial evaluation of the sexual content,” Albright wrote. “It chose instead to impose this extraordinarily difficult and prohibitively expensive burden solely on third parties with totally insufficient guidance. And worse still, no matter how much time and expense the third parties invest in complying, the State (through the Texas Education Agency) retained the power to unilaterally alter any decision made by the third party.”
Albright also noted that “the level of sexual content in each book” is “a subjective issue reasonable people can disagree about.”
The state appealed almost immediately.
In the appellate brief signed by Paxton, the now-reinstated attorney general argued that the plaintiffs in the case shouldn’t have sued because the standards they would have to follow haven’t been set.
“They lack standing because any dispute over whether a particular book is ‘sexually explicit’ is purely hypothetical: Defendants have not even set the standards that would apply in that determination,” the brief says.
“Because READER’s standards have not yet been implemented, any disputes about those standards are entirely speculative,” Paxton also says in the filing.
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Paxton also argues that the lawsuit is an overreach, barred by sovereign immunity.
“Instead of suing the local officials who might enforce READER, Plaintiffs seek to ‘control an officer in the exercise of his [or her] discretion’ in setting statewide policy,” the brief says.
Paxton also says the READER law doesn’t implicate the First Amendment, at least as far as the booksellers are concerned.
“READER does not trigger constitutional scrutiny because Plaintiffs have no First Amendment rights in this context,” the filing says. “Because implementing school-library policy is government speech, Plaintiffs cannot claim a First Amendment right to sell unlabeled sexually explicit books to public schools. Plaintiffs challenge two types of purported ‘speech’: labeling the books they sell and selling books to public schools. Neither triggers First Amendment scrutiny. Selling books is conduct — not speech. And any speech involved is that of the government — not Plaintiffs.”
Paxton says that the booksellers are not being “compelled” into any speech, and compared the still-undetermined standards to something consumers would see at a grocery store.
“Here, the ‘speech’ (a product label) informs public schools about how the product they are purchasing compares to READER’s standards,” the brief says. “Providing such information does not require the seller of the book to pass judgment or express a view on the validity of the standard or a book’s propriety to be shown to children. Rather, like a nutrition label’s food-allergen warning, the label tells the buyer what they are receiving. Such a label is rationally related to the governmental interest of protecting children from sexually explicit materials at school by establishing criteria for the books to enter the schoolhouse doors.”
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Paxton was accused of colluding with a real estate investor to employ a woman with whom Paxton had an extramarital affair in exchange for Paxton allegedly providing the investor with an FBI file related to an investigation of him. That investor, wealthy Paxton donor Nate Paul, was indicted in June for federal financial crimes.
Paxton had been suspended from serving as AG since the articles of impeachment were filed. A conviction would have removed him from the post entirely.
You can read Paxton’s brief here and Albright’s ruling here.
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