A federal judge temporarily blocked portions of the law that would have changed how Arkansas libraries handle controversial material and put the availability of certain books in the hands of elected officials.
U.S. District Judge Timothy Brooks granted plaintiffs’ request to enjoin two of the five sections of Act 372 of 2023, which would alter libraries’ material reconsideration processes and create criminal liability for librarians who distribute content that some consider “obscene” or “harmful to minors.”
Brooks’ decision means much of Act 372 will not go into effect in the next few days as originally scheduled.
The 18 plaintiffs include libraries, bookstores, advocacy groups and individual library patrons. Lead attorney John Adams argued at a hearing on Tuesday that Act 372 unfairly restricts librarians’ speech and is unclear about how librarians can avoid the criminal charges put forth in the law.
Brooks concluded that the challenged portions of the law were too vague and could lead to arbitrary interpretation and “content-based restrictions” that violate the First Amendment right to freedom of expression, which would cause the plaintiffs “irreparable harm.”
The Central Arkansas Library System and its executive director, Nate Coulter, are two of the plaintiffs. Coulter said in a statement Saturday that he was “extremely pleased and gratified” by Brooks’ ruling.
“I’m relieved that for now the dark cloud that was hanging over CALS’ librarians has lifted — they will not be threatened with jail for making books available to our patrons,” Coulter said.
He also said he appreciated Brooks’ affirmation that “the librarian’s only enemy is the censor who judges contrary opinions to be dangerous, immoral, or wrong.”
The lack of clarity seems to have been by design. After all, by keeping the pivotal terms vague, local governing bodies have greater flexibility to assess a given challenge however they please rather than how the Constitution dictates.
– U.S. District Judge Timothy Brooks
Supporters of Act 372, both in public and in the Arkansas Legislature, have said the policy is necessary to keep “pornographic” content out of children’s reach. Opponents of the law have said it will be used to reduce access to content that reflects the general public, such as the LGBTQ+ community.
The Crawford County Library System moved children’s books with LGBTQ+ topics to a segregated “social section,” accessible only to adults, at all five branches in December 2022 after county residents objected to their availability at multiple quorum court meetings. County officials have cited the law as a reason to keep the books segregated.
The plaintiffs challenging Act 372 chose to sue Crawford County and Crawford County Judge Chris Keith, in addition to the prosecuting attorneys in each of Arkansas’ 28 judicial districts.
In a ruling separate from the one granting the injunction, Brooks denied the Crawford County defendants’ request to dismiss the case against them alone.
Defense attorneys for both the state and Crawford County argued Tuesday that the plaintiffs’ claims were “merely speculative or hypothetical,” but the plaintiffs proved “they will suffer imminent, particularized injuries” under the challenged portions of Act 372, Brooks wrote in his 49-page ruling.
He said he saw merit in the plaintiffs’ claim that “libraries and bookstores may eliminate many, if not all, books from their collections that contain any sexual content” in order not to run afoul of the new law.
“If merely having a book accessible on the shelf where a minor can reach it will potentially subject librarians and booksellers to criminal penalties, such books may simply be removed,” Brooks wrote. “As a result, these patrons claim their First Amendment right to access non-obscene (i.e., constitutionally protected) reading material will be dramatically curtailed.”
A 2003 state law banned displays of reading material deemed “harmful to minors,” a phrase included in Act 372. Then-Gov. Mike Huckabee signed the 2003 law; his daughter, Gov. Sarah Huckabee Sanders, signed Act 372 in March.
The Arkansas Supreme Court struck down the previous law in 2004, partially basing the ruling on the fact that the law did not differentiate based on children’s ages.
Brooks upheld this precedent in his ruling, saying that both the previous law and the current law were too broad, especially since the 2004 ruling “already determined that ‘harmful to minors’ includes a broad category of protected speech,” he wrote.
“Take for example, a paperback romance novel, which contains descriptions of sex,” Brooks said. “It is unlikely young minors would be interested in reading such a book, but if for some reason it were ‘made available’ to them in bookstores or libraries, booksellers and librarians could possibly face penalties — depending on how that term was construed.”
Keeping all individuals under 18 away from books that are not appropriate for younger minors “would likely impose an unnecessary and unjustified burden on any older minor’s ability to access free library books appropriate to his or her age and reading level,” Brooks wrote.
One of the plaintiffs is 17-year-old Hayden Kirby of Little Rock, who stated in court documents that she often goes to the library “unaccompanied by a parent” and would have trouble finding library materials at her reading level if they were relocated on the basis of being unsuitable for younger minors.
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Act 372 requires a committee of library staff, selected by head librarians and “representative of diverse viewpoints,” to be the first to review library materials challenged on the basis of “appropriateness.”
If a challenger disagrees with the library committee’s decision, city or county elected officials will have the final say on where material is placed.
Brooks called this portion of the law “very poorly drafted,” especially since it “provides no criteria to guide the governmental body’s evaluation.”
“Perhaps any vagueness may be chalked up to the General Assembly’s haste to enact Act 372, but the lack of clarity seems to have been by design,” he wrote. “After all, by keeping the pivotal terms vague, local governing bodies have greater flexibility to assess a given challenge however they please rather than how the Constitution dictates.”
Since the law does not define appropriateness or cite libraries’ material selection criteria as a guide, Brooks said it is “difficult, if not impossible, to assess a challenged book’s ‘appropriateness’ without considering its content, message, and/or viewpoint.”
Act 372 prohibits material from being “withdrawn solely for the viewpoints expressed within.” Brooks’ ruling repeated his statement from Tuesday that the word “solely” implies material could be relocated for several reasons, including its expressed viewpoints.
He also repeated that requiring a diversity of viewpoints on the initial review committee would not matter if the viewpoints within the challenged material would be irrelevant to the committee’s decision.
Act 372 did not pass the House Judiciary Committee in March until it had been amended to say library materials would be relocated to an area inaccessible to minors, not removed from the premises, if elected officials find them to be “obscene.”
However, the law “contemplates challenges to appropriateness writ large, not just with respect to minors,” Brooks wrote.
“The law, then, must allow for withdrawal,” he said. “Otherwise, where would such a book — deemed broadly inappropriate for all readers, regardless of age — be placed?”
Brooks also said the state’s attorneys did not prove a “compelling state interest” for the challenge procedure outlined in this portion of Act 372.
Adam Webb, the Garland County Library executive director and one of the plaintiffs against Act 372, said in court documents that the library received “a blanket request” to remove all books with LGBTQ+ characters. Webb said he declined the request and expected those books to be challenged under Act 372.
In contrast, the creation of “social sections” at Crawford County’s libraries was a “compromise” in light of public outcry about LGBTQ+ children’s books, the library system’s then-director said.
The “social sections” are evidence of Crawford County’s interpretation of the challenge provision of Act 372, Brooks wrote in his ruling.
Attorneys for the Crawford County defendants argued Tuesday that the plaintiffs had no standing to sue them. Brooks disagreed in his denial of the defendants’ motion to dismiss them from the case, since the county and its county judge will be responsible for implementing Act 372 if it goes into effect and if appeals reach the county government.
“Their lead argument is that Plaintiffs have no First Amendment right to receive information in a public library and that Crawford County may legally censor and deprive the public access to material at any time and for any reason,” Brooks wrote. “They cite no authority for this position.”
The county and Keith, along with the county’s library board and interim library director, are facing a separate lawsuit from three parents who argue that the “social sections” violate the First Amendment.
The rest of Act 372
Three sections of Act 372 will go into effect this week since they have not been challenged in court.
The law removes schools and public libraries from the part of Arkansas state code that previously exempted them from prosecution “for disseminating a writing, film, slide, drawing, or other visual reproduction that is claimed to be obscene” under existing obscenity laws.
The state’s 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.
Act 372 did not change the definition of obscenity, but it adds the loaning of library materials to the statute governing the possession and distribution of obscene material. Employees of public or school libraries that “knowingly” distribute obscene material or inform others of how to obtain it would risk conviction for a Class D felony, the law states.
The new law also changes the way that school libraries handle challenges to material, similarly to the law’s blocked section pertaining to public libraries. School librarians would create committees to review challenges, and if the committee does not relocate a book, the challenger could appeal the decision to the school board.
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