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Enforcement of two parts of new Arkansas law on library materials temporarily blocked by federal judge

Judge puts two provisions on hold pending final ruling by Joseph Flaherty | July 30, 2023 at 7:33 a.m.
U.S. District Judge Timothy L. Brooks (left) and Arkansas state Sen. Dan Sullivan, R-Jonesboro, are shown in these file photos from 2016 and 2023, respectively. (Left, NWA Democrat-Gazette file photo; right, Arkansas Democrat-Gazette/Staci Vandagriff)

A federal judge in Fayetteville on Saturday temporarily blocked enforcement of two provisions of Act 372, a new state law on library materials, days before the law was scheduled to take effect on Tuesday.

Citing the potential for the curtailing of the plaintiffs' First Amendment rights in the absence of a preliminary injunction, the decision puts the contested parts of the law on hold pending a final ruling on their constitutionality.

In a 49-page order, U.S. District Judge Timothy L. Brooks of the Western District of Arkansas signaled a willingness to side with the plaintiffs on the constitutional issues.

The judge wrote that "the passage of Act 372 prompts a few simple, yet unanswered questions. For example: What has happened in Arkansas to cause its communities to lose faith and confidence in their local librarians? What is it that prompted the General Assembly's newfound suspicion? And why has the State found it necessary to target librarians for criminal prosecution?"

Attorneys in the case had appeared before Brooks during a July 25 hearing in Fayetteville on the plaintiffs' request for a preliminary injunction or temporary restraining order.

State Sen. Dan Sullivan, R-Jonesboro, was the lead sponsor of the legislation, which was signed into law by Gov. Sarah Huckabee Sanders on March 30.

A coalition of more than a dozen plaintiffs on June 2 filed a lawsuit in an effort to overturn two of Act 372's six sections as unconstitutional, claiming violations of the First and 14th amendments to the U.S. Constitution.

[DOCUMENT: Read the judge's injunction on parts of the law »]

The group of plaintiffs includes the public libraries in Eureka Springs and Fayetteville, the Little Rock-based Central Arkansas Library System, trade associations and two bookstores.

The lawsuit names as defendants the prosecuting attorneys serving in Arkansas' 28 judicial districts, as well as Chris Keith, the county judge of Crawford County. The complaint also names Crawford County itself as a defendant.

In the complaint, attorneys for the plaintiffs wrote that the county "has acted to segregate constitutionally protected materials in the Crawford County Library, and its attorney defended the decision to segregate those materials with reference to its impending obligation under Act 372 to create an area inaccessible to minors."

In a separate order issued on Saturday, Brooks denied a request to dismiss Crawford County and Keith as defendants.

One contested section of the legislation establishes a new Class A misdemeanor offense of furnishing a harmful item to a minor, incorporating definitions from existing obscenity law.

Individuals who knowingly provide a minor with a harmful item, or who knowingly make a harmful item available to a minor, could be imprisoned for up to a year if convicted.

In a brief filed June 22, attorneys for the plaintiffs wrote that the so-called availability provision "threatens librarians and booksellers with criminal prosecution for providing protected expression to people with a constitutional right to receive it. Under the statute, librarians and booksellers could face criminal liability for providing a 17-year-old with a book that was only potentially 'harmful' to a 5- or 6-year-old."

Faced with the provision, and depending on "their respective budgets and tolerance for criminal legal risk," library and bookstore personnel might undertake steps like banning patrons under 18 altogether or removing from their shelves books that the law could consider to be "harmful," regardless of their scientific or literary value, the brief said.

The other contested section sets a process for individuals to challenge the appropriateness of materials held in a public library's collection.

Under the law, library personnel would be required to relocate the material to an area inaccessible to minors in response to a successful challenge; a decision not to relocate the material 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.

Brooks opened his order issued Saturday by quoting Ray Bradbury, the author of "Fahrenheit 451," who wrote, "There is more than one way to burn a book. And the world is full of people running about with lit matches."

With regard to the section of the law establishing the new misdemeanor offense, Brooks determined the language to be overly broad in such a way that it was likely to pose an unjustified burden on older minors' ability to access age-appropriate library books.

"If libraries and bookstores continue to allow individuals under the age of 18 to enter, the only way librarians and booksellers could comply with the law would be to keep minors away from any material considered obscene as to the youngest minors -- in other words, any material with any amount of sexual content," the judge wrote.

Brooks found its terms to be vague, writing that the "use of 'presents,' 'makes available,' and 'shows' leaves librarians and booksellers unsure about whether placing books known to contain sexual content on the bookshelves may subject them to liability once a minor walks through the front door."

The judge called the section on challenges to library materials "very poorly drafted."

He wrote that the plaintiffs "have a high likelihood of success in proving that several critical terms in [the section] are too vague to be understood and implemented effectively without also allowing those tasked with enforcing the law to adopt unconstitutional, impermissible interpretations."

Additionally, by imposing content-based restrictions on protected speech, the challenge procedure laid out in the law is rendered unconstitutional, Brooks wrote.

"The Court finds that Plaintiffs have established a likelihood that [the section] would permit, if not encourage, library committees and local governmental bodies to make censorship decisions based on content or viewpoint, which would violate the First Amendment," he wrote.

In a statement provided by a spokesman via email following the ruling on Saturday, Arkansas Attorney General Tim Griffin said, "We are reviewing the judge's opinion and will continue to vigorously defend the law."

Nate Coulter, the executive director of the Central Arkansas Library System, said in a statement via text message that he was "relieved that for now the dark cloud that was hanging over [the library system's] librarians has lifted -- they will not be threatened with jail for making books available to our patrons."

The four other sections of Act 372 not addressed in the coalition's lawsuit are still set to go into effect.

One section establishes a similar challenge process for school districts' media centers while another section strips language from state law shielding school and library personnel from prosecution for disseminating material claimed to be obscene.

Print Headline: State library law partially blocked


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