Fayetteville-based judge will decide by end of the week whether library law should be put on hold

Ruling expectedby end of week

Fayettevilles public library is not a member of the Washington County system but is a plaintiff in a lawsuit seeking to block Act 372, which deals with people challenging books and other material in libraries. The act is set to take effect Aug. 1 unless an injunction or temporary restraining order is granted. A hearing on that is set for Tuesday. Visit nwaonline.com/photo for todays photo gallery. (NWA Democrat-Gazette/J.T. Wampler)

FAYETTEVILLE -- A federal judge said Tuesday he will decide by the end of the week whether to grant a temporary injunction in a lawsuit challenging provisions of a new state law criminalizing giving minors library material deemed to be obscene.

U.S. District Judge Timothy L. Brooks has been asked to issue a preliminary injunction, pending a decision on the merits of the plaintiffs' claims. Attorneys for a coalition of plaintiffs suing to overturn two provisions of Act 372 asked Brooks to block enforcement of contested elements of the law.

If the two provisions are allowed to take effect, the plaintiffs' First Amendment rights could be affected in a variety of ways, the brief says. Those include librarians and booksellers facing prosecution for failing to censor constitutionally protected speech; libraries and bookstores struggling to comply with the vague mandates of the law; and bookstore and library patrons being faced with rapid erosion of their access to constitutionally protected material, without procedural protections allowing them to advocate for retention of challenged materials.

The law is scheduled to take effect Tuesday.

The group of 17 plaintiffs includes the public libraries of Fayetteville and Eureka Springs, as well as the Little Rock-based Central Arkansas Library System.

The lawsuit is challenging two of Act 372's six sections, including a new Class A misdemeanor offense for furnishing a harmful item to a minor. Library personnel and others could face criminal prosecution and up to a year in jail if they "knowingly" lend an item deemed harmful to minors based on existing obscenity law.

Attorneys for the plaintiffs have dubbed that the "availability provision."

"This will necessarily force libraries and bookstores to confine to a secure 'adults only' area -- and so to segregate from their general patrons and customers -- any item that might be deemed harmful to the youngest minor, even if there is no constitutional basis for limiting its availability to older minors or adults," according to the complaint.

John Adams, an attorney for the plaintiffs, told Brooks librarians and booksellers will have to figure out a way to either keep minors off their premises or keep some material out of sight of minors. He said the law is overbroad, short on specifics and borders on prior restraint.

The previous law had a "safe harbor" or immunity defense for public libraries and schools, but the new law will strip away those protections, Adams said.

Brooks repeatedly quizzed lawyers for the state and the Crawford County Library system, both defendants, on whether having different assessments for different ages will pass constitutional muster. Brooks questioned whether what is deemed harmful to a 5-year-old will control what is deemed inappropriate for a 17-year-old and whether that's a fatal flaw in the law.

The second challenged section establishes procedures for people to challenge the appropriateness of library material made available to the public.

Successful challenges could result in the material being "relocated within the library's collection to an area that is not accessible" to minors, according to the law.

Should library officials refuse to move an item, their decision could be appealed to the local city council in the case of a municipal library, or quorum court in the case of a county library.

Court filings on behalf of the plaintiffs refer to the section as the "challenge procedure." A separate section of the law establishes a similar challenge process for school districts.

Brooks questioned who will make those assessments and what criteria will be used. He also asked whether assessments will be different for removal of a book as opposed to selecting material to go on the library shelves. He also questioned whether those opposed to pulling a book off the shelves would have a chance to have their voices heard during an appeal process and what would be required in terms of public notice.

The law puts librarians at risk of going to jail for a year based on a one-sided process of complaint and review, Adams said.

Lawyers for the defendants countered that argument is hypothetical.

Gov. Sarah Huckabee Sanders signed the legislation March 30. The complaint was filed in U.S. District Court for the Western District of Arkansas on June 2.

Temporary injunction

A court order prohibiting an action by a party to a lawsuit until there has been a trial or other court action. The purpose of a temporary injunction is to maintain the status quo and prevent irreparable damage or change before the legal questions are determined. After the trial or other ruling, the court may issue a permanent injunction or dissolve the temporary injunction.


The story was updated to correct John Adams' name.