People For the American Way Foundation

Biden Judges Cast Deciding Votes to Preserve Anti-Censorship Ruling in Texas

Biden Judges Cast Deciding Votes to Preserve Anti-Censorship Ruling in Texas

Judges Dana Douglas and Irma Ramirez, nominated by President Biden to the Fifth Circuit court of appeals, cast deciding votes in a 9-8 full court decision that preserved and refused to rehear a three-judge panel decision, which upheld a preliminary injunction against a Texas censorship law. The April 2024 ruling was in Book People Inc. v Wong.


What is the background of this case?

In 2023, Texas passed HB 900, which required all booksellers selling books to public schools to rate all such books as “sexually explicit,”  “sexually relevant,” or “no rating.” Federal district judge Alan Albright temporarily blocked the law, calling it “textbook compelled speech” in violation of the First Amendment.

A panel of three Fifth Circuit judges, including Judge Douglas, Trump nominee Don Willett, and George HW Bush nominee Jacques Wiener, affirmed the preliminary injunction. Judge Willett wrote a 34-page opinion in January that all three judges joined, sending the case back to the district court.

At some point, however, another judge on the Fifth Circuit requested that the decision re reconsidered and that all eligible judges vote on whether to do so. That vote took place in April.


What Happened When the Reconsideration Vote Occurred And Why is it Important?

The panel announced on April 16 that the attempt to reconsider its ruling failed by a vote of 9-8. In addition to Judges Douglas and Ramirez, those voting to deny rehearing  included three other judges nominated by Democratic presidents and four by Republican presidents, including two Trump nominees. Trump judge James Ho wrote a strong dissent, joined by two other Trump judges and two nominated by President Reagan.

The court’s decision to preserve the injunction against the Texas censorship law is obviously important to the booksellers and others in that case as well as to the schools and schoolchildren of Texas. Although the ruling came with no explanation, it does offer an important lesson in judicial arithmetic for the Fifth Circuit, including Texas, Mississippi, and Louisiana. When the very conservative Fifth Circuit judges are divided on an issue like censorship or the First Amendment, the addition of fair-minded judges can make a huge difference in a case’s outcome. This makes it all the more important that prompt action be taken to confirm fair-minded judges like Douglas and Ramirez for the sake of justice on all our federal courts.