17 plaintiffs plan to challenge Arkansas’ library obscenity law
Central Arkansas Library System will be the lead plaintiff after its board votes to move forward with a federal lawsuit
Central Arkansas Library System board members Bob Brown (center), Alexis Sims (second from right) and Esperanza Massana-Crane (right) listen to discussion of a state law changing how libraries handle challenges to material on Thursday, May 25, 2023. (Tess Vrbin/Arkansas Advocate)
The Central Arkansas Library System and 16 other plaintiffs plan to sue the state of Arkansas over two sections of a new law that changes how libraries handle material that some consider “obscene.”
The CALS board of directors voted Thursday to file a federal lawsuit challenging the portions of Act 372 of 2023 that alter libraries’ material reconsideration processes and create criminal liability for librarians who distribute content that the law says is “harmful to minors.”
Libraries, bookstores, advocacy groups and individual library patrons are among the plaintiffs in the suit.
CALS needs clarity on what these parts of the law mean in order to ensure compliance with the law and that librarians can do their jobs without risking arrest, said John Adams, an attorney with the Fuqua Campbell firm in Little Rock representing CALS.
The law, which goes into effect Aug. 1, states that anyone will be allowed to “challenge the appropriateness” of public libraries’ offerings, but it does not define “appropriateness” or provide any “standard that we’re expected to use” to determine this, Adams said.
Proponents of the law have said no one under 18 should be able to access content pertaining to racism, sexual activity and LGBTQ+ topics, calling it “indoctrination.” Opponents of the law say this content reflects the community and that restricting access amounts to censorship.
Under the law, a committee of five to seven people selected by head librarians would review challenged material and vote in a public meeting on whether to keep it where it is currently shelved or relocate it to an area of the library that minors cannot access. A complainant may appeal the committee’s decision if the majority votes not to relocate the material, and county judges or county quorum courts would hear appeals and have the final say.
Libraries do not have “segregated spaces” that minors are banned from entering, Adams said.
This part of the law would be “totally impractical to enforce,” even in one of the state’s largest library systems, CALS executive director Nate Coulter said. He gave an example of a frequently challenged book, “All Boys Aren’t Blue” by George M. Johnson, that is available in the library, but not in the sections aimed at children or teens.
“If a 16-year-old is looking for that book and goes up to the fifth floor, and that book is on the shelf in the collection, have we violated that risk of criminal penalty?” Coulter said. “It’s in our collection, but we’re not going to have enough staff to put at the head of every row of books or someone to check [patrons’] ID and make sure they’re 18.”
Library employees that “knowingly” distribute obscene material or inform others of how to obtain it would risk conviction of a Class D felony, the law states. Knowingly possessing obscene material would risk conviction of a Class A misdemeanor.
Adams said Act 372 is not clear enough to conclude that librarians could not be charged in the hypothetical situation Coulter mentioned.
The law had four Republican sponsors in the Legislature, including Rep. Mary Bentley. She represents the entirety of Perry County, which is within the CALS system and has a library branch in her hometown of Perryville. CALS also has 13 branches in Pulaski County, and the board is made of 14 members, including Coulter.
Alexis Sims, the Maumelle branch representative on the board, was the only member to vote against the resolution to file the lawsuit. Esperanza Massana-Crane, one of the Little Rock branch representatives, abstained from the vote.
Adams said he did not have a draft of the legal complaint prepared Thursday but expects to have it ready to file early next week.
Arkansas’ definition of obscenity is “that to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest,” with prurient meaning overtly sexual.
While Act 372 was moving through the Legislature, some lawmakers said they did not believe legislative bodies such as quorum courts should be tasked with judicial decisions.
Additionally, librarians have no way of knowing while checking out a book to a minor if a judge will later rule that the book is obscene, Adams said.
Act 372 is “virtually identical” to a 2003 state law that banned displays of reading material deemed “harmful to minors,” Adams said. The Arkansas Supreme Court struck down the law in 2004.
Then-Gov. Mike Huckabee signed the 2003 law; his daughter, Gov. Sarah Huckabee Sanders, signed Act 372 in March.
One of the problems with the previous law was that it declared “harmful” material to be applicable to all minors and did not differentiate based on children’s ages. Act 372 has the same problem, Adams said.
“If some given book was inappropriate for a 7-year-old, it might be illegal for a bookseller or a librarian to display it or give it to a 17-year-old,” he said.
He added that he shelved books at his local library when he was 17.
“How’s that going to work [for today’s kids] if some parts of the collection have to be segregated or sequestered?” he said.
CALS will fund the lawsuit via “donors and private foundations, as well as organizations offering pro bono legal services,” according to the board’s resolution.
The library system’s website includes a link to an explanation of Act 372 and a message from Coulter encouraging people to donate to the legal effort.
Sims, who voted against the resolution, said there are better ways for the board to use donations from the public, such as for building renovations. Enough co-plaintiffs had signed onto the lawsuit that CALS would not stop it by declining to participate, she said.
She added that she would have preferred to see a draft of the legal complaint before the board voted, and that her vote did not mean she supported Act 372.
“As a granddaughter of Cuban political refugees, I am not for book-banning, and I’m very proud of the CALS collection,” Sims said.
Who is challenging Act 372 in federal court?
Seventeen entities have signed onto the planned federal lawsuit against Arkansas’ law changing how libraries handle content challenges. Attorney John Adams read the list aloud at Thursday’s Central Arkansas Library System board meeting.
- Central Arkansas Library System
- Fayetteville Public Library
- The Eureka Springs Carnegie Public Library
- Garland County Library executive director Adam Webb
- CALS executive director Nate Coulter
- Arkansas Library Association
- Advocates for All Arkansas Libraries
- The Authors Guild, the oldest and largest professional organization for writers in the United States
- The American Booksellers’ Association
- The Association of American Publishers
- The Freedom to Read Foundation
- The Comic Book Legal Defense Fund
- WordsWorth Books, an independent bookstore in Little Rock
- Pearl’s Books, an independent bookstore in Fayetteville
- Hayden Kirby, a 17-year-old CALS patron and a student at Little Rock Central High School
- Jennie Kirby, Hayden’s mother
- Olivia Farrell, an adult CALS patron
Board members Bob Brown and Dustin McDaniel said they understood Sims’ point of view but believed the courts needed to provide clarity on the law sooner than later.
“We don’t really know what Act 372 says as far as ramifications,” said Brown, who made the motion to pass the resolution. “…I think we’re kind of flying blind.”
McDaniel said he disapproved of soliciting funds for the litigation via the system website but ultimately supported the resolution.
“I think it would be woefully negligent on our part not to get clarification from a court before we subject any of our employees to potentially being handcuffed [and] potentially having to go to court,” said McDaniel, who was Arkansas’ attorney general from 2007 to 2015.
Luke McCoy, communications director for the conservative Family Council, urged the board during the meeting’s public comment period not to file the lawsuit. He reminded the board that they are unelected officials while the legislators in the state House and Senate who passed Act 372 with sizable majorities were elected.
“Sit this one out,” McCoy said. “Let someone else with standing challenge the law.”
He claimed opponents of the bill that became Act 372 told state legislators they were “totally comfortable with allowing” children access to sexually explicit library material.
But Brittani Brooks, a school librarian from Little Rock, told the House Judiciary Committee in March that librarians know better than to check out “a steamy Harlequin romance” to a young child.
McCoy, who is a Pulaski County Justice of the Peace from Sherwood, said he and his fellow Republican justices “will probably make [the lawsuit] an issue” next time the county judge has to appoint a member of the CALS board. The county judge appoints two members, and Brown and McDaniel currently hold those positions.
Neighboring Saline County has been the battleground for the statewide debate over what library content is appropriate for children, and county Judge Matt Brumley reminded the county’s library board on Monday that he is responsible for appointing its members. Brumley said library director Patty Hector’s statement that “there is nothing wrong with” books facing conservative backlash gave him “a high degree of concern” about library leadership.
Hector has refused to follow a recommendation from the county quorum court to “relocate materials that are not subject matter or age appropriate for children, due to their sexual content or imagery, to an area that is not accessible to children.” The court passed the resolution in April, calling it a proactive move before Act 372 goes into effect.
Supporters and opponents of both the Saline County resolution and Act 372 have agreed that parents have the right to know what their children are reading.
Angela Hunter, a mother of two from Little Rock, encouraged the CALS board to vote for the lawsuit against Act 372. She said CALS already “has a robust system for challenging materials.”
“I think [the law] micromanages something that doesn’t need it, and I think it goes against the basic freedoms of our democracy,” Hunter said.
Every library system in Arkansas has a policy to address challenges from the public, and those policies will have to be altered to comply with Act 372. The existing policies are rarely used throughout the state, and people who challenge books often want them to be removed rather than relocated, the Advocate reported earlier this month.
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