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Judge questions attorneys over use of ‘minors’ in new Arkansas library law

Judge: ‘Minors’ might be 5 or 17 by Josh Snyder | July 26, 2023 at 8:51 a.m.
FILE — The main branch of the Central Arkansas Library System in Little Rock is shown in this 2020 file photo. (Arkansas Democrat-Gazette/Thomas Metthe)

FAYETTEVILLE -- A federal judge questioned attorneys over the use of the term "minors" in a new Arkansas law on library materials during a hearing on Tuesday, just a week before it is scheduled to go into effect.

The hearing was held in response to a request to temporarily block the law, Act 372 of 2023. After hearing arguments from and questioning attorneys on both sides of the issue, U.S. District Judge Timothy L. Brooks said he expected to issue a written ruling on the request by the end of the week.

A motion filed June 22 by a coalition of 17 plaintiffs in the case asked Brooks to issue the preliminary injunction against the law.

Alternatively, the motion asked the judge to grant a temporary restraining order barring the application of two sections of the law until a decision is reached on the request for a preliminary injunction.

An accompanying brief argues that the plaintiffs will suffer "irreparable harm" if the preliminary injunction is not granted.

Act 372 is scheduled to take effect on Aug. 1. It was signed by Gov. Sarah Huckabee Sanders on March 30.

The lawsuit, which challenges the constitutionality of two of the law's six sections, was initially filed in U.S. District Court for the Western District of Arkansas on June 2. The defendants in the case include 28 prosecuting attorneys from across the state, as well as Crawford County and its chief executive.

The first of the contested sections, dubbed by the plaintiffs the "availability provision," creates a new Class A misdemeanor offense of furnishing a harmful item to a minor, thereby making library personnel and others open to criminal prosecution and up to a year in prison if they "knowingly" lend an item considered harmful to minors based on existing obscenity law.

The second section establishes statewide procedures for citizens to challenge the appropriateness of physical library materials that are available to the public.

During his questioning of the attorneys for the defense about both sections, Brooks said the law makes "no effort" to discern between what is harmful to 5-year-olds and what is harmful to 17-year-olds. He described the absence of discernment in the law as a "fatal defect."

Brooks asked Senior Assistant Attorney General Noah P. Watson, an attorney for the defense, how he would respond to the notion that libraries, bookstores and other entities referenced in the law would have to make decisions about what material they must curtail based on what is considered harmful for the youngest minors, with no regard for the oldest minors.

Brooks said that, under the law, a romance novel written by author Jackie Collins wouldn't be considered obscene for adults, but would meet that definition for a 17-year-old minor on the grounds that it wouldn't be allowable for a 5-year-old.

Watson defended the state's position, replying that the situations put forth by the judge were merely hypothetical. Courts cannot look at hypotheticals, he argued earlier during the trial; they can only consider the facts placed before the court.

"It's not like this is the first time this situation has presented itself," Brooks said, to which Watson replied that the situations the judge described were "wholly speculative."

Brooks said the law appeared to force prosecutors in a criminal case involving a librarian or bookseller to use what's harmful to a kindergartner as a standard for what is harmful to minors under the law, even if the content was not harmful to a 17-year-old.

"There's no binding precedent in this court over whether this is an unconstitutional standard," Watson said.

The questions asked over the use of "minor" in Act 372 were put forth by John T. Adams, an attorney for the plaintiffs, during his presentation on the section that creates a new misdemeanor. He also applied the same reasoning while arguing against the section that establishes a challenge process for library materials.

"Minors means all minors," he said.

Adams' statements regarding the use of "minors" in the law fell under two major arguments he made in his presentations, namely that sections of Act 372 were "overbroad" and "vague." His other fundamental argument was that the law imposes an unconstitutional "prior restraint." Libraries and bookstores have to start making decisions now about what materials can be accessed in their spaces, he said.

Watson denied the claim about prior restraint, saying that no speech is stopped under the law. He argued that prior restraint only exists if it stops speech before it occurs.

"It's just past speech," he said.

With regard to Adams' claim that sections of the law were vague, Watson said that the standard to be met for a person to "knowingly" lend a harmful item under the law would be such that it would be clear that the person knew the item was harmful. He also said that courts should apply dictionary definitions to the law to define terms considered vague by the plaintiffs.

Additionally, Watson described the curation of library materials as "government speech." He said that governments already take an active role in the selection of library materials, and that many libraries already have selection criteria in place to determine what books will be acquired and placed on shelves at libraries.

Brooks asked Watson whether a city council or quorum court must use the same criteria should a book challenge reach them, to which Watson answered that the city councils or quorum courts would look at the criteria. The judge commented that details about libraries' selection criteria were not included in the law.

During the hearing, Brooks also heard from an attorney for Crawford County, who sought to dismiss the challenge to the section on challenges to materials. He argued that Crawford County shouldn't also be a defendant in the case, saying that the county is "bound by the four corners of the act."

While the county intends to follow all enforceable law, the attorney said that any injury caused by the law "rests on the state of Arkansas."

Brooks said that, as with the request for a preliminary injunction, he will take the county's request for dismissal "under consideration."

In response to a request for comment on the hearing, Arkansas Attorney General Tim Griffin said in a statement through a spokesman, "I will continue to vigorously defend the constitutionality of Act 372."

Nate Coulter, the executive director of the Central Arkansas Library System, who is suing on his behalf and on behalf of the Central Arkansas Library System, said after the hearing that he and the coalition of plaintiffs appreciated the "bravery" of the librarians, booksellers and readers taking part in the trial, and that he thought the judge asked "great questions."

"I look forward to reading his ruling," Coulter said. "But we're not going to guess what it is."

The group of 17 plaintiffs in the case includes:

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

Nate Coulter, the executive director of the Central Arkansas Library System, suing on his own behalf and on behalf of the library system's board.

Adam Webb, the executive director of the Garland County Library, suing on his own behalf and in his individual capacity.

Pearl's Books, located in Fayetteville, and WordsWorth Books, located in Little Rock.

Several industry groups, including the Association of American Publishers and the Arkansas Library Association.

Information for this article was contributed by Joseph Flaherty of the Arkansas Democrat-Gazette.

CORRECTION: The plaintiffs' motion to request a preliminary injunction was filed June 22. An earlier version of this story incorrectly stated when the motion was filed.

Print Headline: Arkansas queried on library law term


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