Judge blocks Arkansas obscenity law targeting libraries and bookstores

An Arkansas federal judge has temporarily blocked portions of a law that would put librarians and booksellers at risk of criminal prosecution for displaying materials deemed inappropriate for minors.

Arkansas Act 372 of 2023 was signed into law by Gov. Sarah Huckabee Sanders on March 31 and was set to go into effect Aug. 1. The act was challenged in a lawsuit filed by a coalition of public library entities from across the state.

Section 1 of the act would create the new criminal offense of “furnishing harmful materials to a minor,” which would be a Class A misdemeanor, the most serious level of misdemeanor in Arkansas, carrying a maximum sentence of one year in prison.

In an opinion issued July 29, Judge Timothy Brooks of the U.S. District Court for the Western District of Arkansas ruled that the section was likely too broad to stand.

“The Arkansas Supreme Court has already determined that ‘harmful to minors’ includes a broad category of protected speech,” Brooks wrote. “Take for example, a paperback romance novel, which contains descriptions of sex. 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.”

Brooks also noted that the law actually includes no limitation on whom the criminal liability may be applied to. That is, not only would librarians and booksellers be subject to prosecution, but parents would be, too.

“Arguably, if a parent were to act as a straw buyer or borrower of a book that is deemed harmful to a young minor, criminal liability would attach if the parent then provided the material to his 17-year-old child,” the judge says in a footnote.

Section 5 of Act 372 would mandate that public libraries create a system for dealing with material challenged by members of the public on the basis of its “appropriateness,” including removing the material or withdrawing it to areas inaccessible to minors. But the plaintiffs in the lawsuit challenging Act 372 were concerned the section — which includes no restriction on who may challenge materials or on what grounds — could wind up encouraging libraries to remove broad swaths of content claimed to be offensive by a vocal minority.

Brooks said in his opinion that the plaintiffs had shown this concern was not just speculation.

“Plaintiff Adam Webb, Garland County Library’s Executive Director, states that his library has already received a ‘blanket request’ to remove books from the collection due to their content and/or viewpoint, namely, ‘all materials with LGBTQ characters,’” Brooks wrote.

He also said the language in Section 5 was far too unclear to stand.

“In Section 5, the term ‘appropriateness’ is fatally vague, all but guaranteeing that the challenge procedure will result in books removed or relocated based on the content or viewpoint expressed therein,” Brooks wrote. “‘Appropriateness’ does not mean ‘harmful to minors,’ but instead means something else.”

Brooks temporarily enjoined the state from enforcing both Section 1 and Section 5 of Act 372..

The ACLU of Arkansas’ executive director, Holly Dickson, commended Brooks for the ruling.

“It’s regrettable that we even have to question whether our constitutional rights are still respected today,” Dickson said in a statement. The question we had to ask was — do Arkansans still legally have access to reading materials? Luckily, the judicial system has once again defended our highly valued liberties. We are committed to maintaining the fight to safeguard everyone’s right to access information and ideas.”

According to reporting from NPR, Arkansas Attorney General Tim Griffin said his office is reviewing the ruling and plans to continue to defend the law, though he did not immediately announce an appeal.

Act 372 was sponsored by Arkansas Republican State Sen. Dan Sullivan, who in June suggested the state should defund libraries affiliated with the American Library Association.

“The libraries are an institution, often like higher ed, that are far left and they have been a bastion of the left wing, they’re the ones holding the drag queen shows,” Sullivan said in a video shared June 28 by Right Wing Watch. “They’re the ones promoting Pride month. You know, our county library last year had huge pride signs and flags and books. This year, they backed that off, very little, because we took their money away. And you learn as a legislator really quick that if you want things to change, take their money, and then the negotiations start immediately.”

Published with permission of The American Independent Foundation.