Answering Our Questions: The Key to Selling Your Products to Us

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:
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:
And the court concluded that the compulsion was likely unconstitutional:
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).