A federal judge will decide later this week whether to temporarily block the law that changes how Arkansas libraries handle controversial material or let it go into effect next week as scheduled.
Act 372 of 2023 alters libraries’ material reconsideration processes and creates criminal liability for librarians who distribute content that some consider “obscene” or “harmful to minors.” Eighteen plaintiffs from across Arkansas — a group of libraries, bookstores, advocacy groups and individual library patrons — are challenging portions of the law in a suit filed last month.
John Adams, the plaintiffs’ lead attorney, told U.S. District Judge Timothy Brooks on Tuesday that the law creates a “content-based restriction” on librarians’ speech, violating the First Amendment. Adams also argued that the law is unclear about how librarians can avoid criminal charges because it does not specify whether the simple presence of certain books on a shelf would be illegal.
Act 372 states that anyone will be allowed to “challenge the appropriateness” of public libraries’ offerings. Adams argued that “appropriateness” is a vague and subjective term that the law does not narrow down in any way.
The defendants in the case are the prosecuting attorneys in each of Arkansas’ 28 judicial districts, as well as Crawford County and its county judge, Chris Keith.
The lead attorney for the state’s defense, Noah Watson of the Arkansas Attorney General’s Office, argued that the state has a certain amount of power to limit speech in the interest of protecting children from harm.
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” at all five branches in December 2022 after community members objected to their availability at multiple quorum court meetings. The plaintiffs chose to sue Crawford County and Keith after county officials cited Act 372 as a reason to keep the books segregated.
Attorneys representing the Crawford County defendants asked Brooks on Tuesday to dismiss the case against them, arguing that the plaintiffs had no standing to sue.
At the end of the nearly five-hour hearing, Brooks said he would take both the plaintiffs’ request for a preliminary injunction and Crawford County’s dismissal request under advisement.
“Unfettered discretion”
Act 372 requires a committee of library staff, selected by head librarians and “representative of diverse viewpoints,” to be the first to review challenged library materials.
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. The lawsuit challenges the governmental bodies’ “unfettered discretion… to decide whether materials are ‘appropriate’ without any definite procedural safeguards or standards.”
Brooks asked Watson why the law requires a diversity of viewpoints on the initial review committee if the viewpoints within the challenged material are irrelevant to the committee’s decision.
Watson pointed out the phrase in the law that forbids books from being “withdrawn solely for the viewpoints expressed within the material.”
Brooks asked if the word “solely” implies that material could be relocated for several reasons, including if those making the decision “finds [the material] at our current point in history to be undesirable.”
“There has to be some viewpoint discrimination when the government is curating what to provide citizens,” Watson replied.
Upon prompting from Brooks, Watson said both the potential relocation of books and their initial availability on library shelves are forms of government speech.
Adams said he did not believe any rational Arkansan would consider the books on a library shelf to fully and accurately represent the government’s point of view.
“Libraries routinely carry Mein Kampf,” he said. “No reasonable person thinks that the county or state is endorsing Nazi propaganda.”
Potential criminalization
Library employees who “knowingly” distribute obscene material or inform others of how to obtain it would risk conviction of a Class D felony, Act 372 states. Knowingly possessing obscene material would risk conviction of a Class A misdemeanor.
Adams said this portion of the law would force librarians to “err on the side of staying out of jail” by creating a segregated section of the library, removing certain books from the library entirely or banning minors from the premises.
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. Adams repeatedly said this decision is a precedent that invalidates Act 372.
Watson argued that minors are legally considered a class regardless of age and that there is no precedent establishing a “minor-by-minor calculus.”
However, Brooks said the class distinction did not change the fact that he saw “not much daylight between the ultimately fatal defects” of the 2003 law and the “availability provision” of Act 372.
He added that the text of the law does not necessarily apply to judicially obscene content but does single out “nudity or sexual conduct.”
“Certainly one could think of any number of books or materials that would not be harmful to a married 17-year-old [but] very obviously would be harmful to a kindergartner, and yet this statute makes no effort to discern between the two,” Brooks said.
