This post has been updated significantly since it was first published.
A federal judge in Fayetteville stopped Arkansas’s new book censorship law in its tracks Saturday, handing a victory to a group of 18 plaintiffs, including libraries, library patrons and booksellers.
U.S. District Judge Timothy Brooks issued an order for a preliminary injunction after hearing oral arguments earlier this week from attorneys representing the plaintiffs and Arkansas Attorney General Tim Griffin’s office. The ruling means the most controversial parts of Act 372, which the state legislature passed earlier this year, will be placed on hold while the legal battle over its constitutionality plays out.
The law was scheduled to go into effect on Tuesday, Aug. 1.
Sponsored by state Senator Dan Sullivan (R-Jonesboro), Act 372 aims to restrict what books children can access in two key ways. First, it imposes a new criminal penalty on anyone who makes “harmful” materials available to minors, putting librarians and bookstore employees in danger of being charged with a Class A misdemeanor. Second, it establishes a uniform procedure for people to challenge materials in a library’s collection based on “appropriateness.” If a library rejects such a challenge, its decision could then be appealed to a local body of elected officials, such as a city council or county quorum court.
The plaintiffs, including the Central Arkansas Library System (CALS) and the Fayetteville Public Library, argue the law violates the First and Fourteenth amendments of the U.S. Constitution. The defendants are the state’s 28 prosecuting attorneys — since they would be responsible for enforcing the criminal portion of the law — as well as Crawford County, where a fierce debate over book-banning has already led to a lawsuit over its library system’s decision to place some books in a separate section. (In a separate order today, Brooks denied Crawford County’s motion to be dismissed from the case.)
CALS director Nate Coulter said Saturday he was “pleased and gratified” by the ruling.
“The federal court has agreed today with what CALS and our many library friends and supporters have been saying about this law for many months. Act 372 is censorship. Act 372 violates our constitution; Act 372 wrongly maligns innocent librarians,” Coulter told the Arkansas Times. “I’m relieved that for now the dark cloud that was hanging over CALS’ librarians has lifted — they will not be threatened with jail for making books available to our patrons.”
Sullivan slammed the decision, along with Judge Brooks himself, and vowed an appeal is coming.
“We’re disappointed but not particularly surprised that this federal Obama-appointed judge, chosen after extensive court-shopping, brought this suit in Washington County [sic], found common cause with the American Library Association over the safety and well being of our children,” he said in a statement to the Arkansas Times. “Act 372 was overwhelmingly passed by the legislature and signed by the Governor. I’ll continue to fight to keep material that is harmful to minors away from our most vulnerable. We will be appealing this decision to the [Eighth Circuit] Court of Appeals and investigating other legislation to protect our youngsters.”
The attorney general has not yet announced plans to appeal the injunction.
“We are reviewing the judge’s opinion and will continue to vigorously defend the law,” Tim Griffin said in a text message Saturday.
Brooks’ 49-page order opened with a quote from Ray Bradbury, author of the classic dystopian novel “Fahrenheit 451”: “There is more than one way to burn a book. And the world is full of people running about with lit matches.”
Much of the ruling concerned the question of what exactly is considered “harmful to minors” under the law, a term which in this context is equivalent to “obscene” — that is, containing sexually explicit material.
Though the First Amendment guarantees a right to free speech, it allows for restricting speech on certain narrow grounds, obscenity being one. But the definition of what counts as “obscene” has been the subject of many U.S. Supreme Court decisions over the decades.
Importantly, the Supreme Court has said obscenity standards for minors may be different than those for adults. In a 1968 case involving the prosecution of a New York store owner who sold two “girlie magazines” to a teenage boy, Brooks wrote, the court “held, in essence, that a given publication may simultaneously occupy two different positions under the Constitution. Courts may find a particular book non-obscene — and thus protected by the First Amendment — for adults, while also finding it obscene — and thus unprotected by the First Amendment — for minors.”
But minors still have First Amendment rights, and states can’t unilaterally restrict whatever allegedly “obscene” materials they wish; the constitutional legitimacy of any state law on obscenity depends on how narrowly it’s designed. It is clear that Act 372 is overly broad, Brooks said.
Much of the problem is that a “minor” might be a kindergartener or a senior in high school, but the law treats them as the same. That, along with previous case law in Arkansas, suggests librarians and booksellers would need to set the bar extremely low in determining what material is harmful.
“Take for example, a paperback romance novel, which contains descriptions of sex,” Brooks wrote. “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.”
In fact, though Act 372 most obviously targets libraries and bookstores, Brooks said the prohibition actually seems to apply to anyone — even parents. “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,” he wrote.
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. This would likely impose an unnecessary and unjustified burden on any older minor’s ability to access free library books appropriate to his or her age and reading level. It is also likely that adults browsing the shelves of bookstores and libraries with their minor children would be prohibited from accessing most reading material appropriate for an adult—because the children cannot be near the same material for fear of accessing it. The breadth of this legislation and its restrictions on constitutionally protected speech are therefore unjustified.
Could libraries or bookstores simply ban people under 18 from entering? In a footnote, Brooks said that’s no solution either. Doing so would “compromise … the mission of public libraries” and prohibit kids from “accessing constitutionally protected speech that would otherwise be available to them.”
Then there’s the other controversial part of the law: Section 5, which sets out a new procedure for libraries and locally elected bodies to follow when evaluating citizen requests to censor books. Unlike the first section of the law, which is limited in application to “harmful” (that is, “obscene”) materials, Section 5 is much more vague. Anyone can challenge the “appropriateness” of a book or other material in a library’s collection — a term that the law never attempts to define.
The section is “very poorly drafted,” Brooks said. “Perhaps any vagueness may be chalked up to the General Assembly’s haste to enact Act 372, but the lack of clarity seems to have been by design. After all, by keeping the pivotal terms vague, local governing bodies have greater flexibility to assess a given challenge however they please rather than how the Constitution dictates.”
Attorneys for the state have conceded that this section of the law isn’t limited to challenges of children’s books, Brooks wrote. “Any book could be challenged by any member of the public who believed it was ‘[in]appropriate’ for minors or adults.”
The law is also vague on other key points. It allows for “relocating” successfully challenged materials to a library section that’s not “accessible to minors,” but doesn’t explain what that means, “leaving libraries to guess what level of security meets the law’s requirements.”
Brooks said the state’s attorneys made little effort to defend the vague language, instead arguing that a library’s decision to stock (or not stock) certain books was equivalent to the decision to remove certain books. He continued:
The Court then asked the State what recourse a citizen would have if one, two, or dozens of books on a particular topic or expressing a particular viewpoint were deemed “inappropriate” and removed from the library’s general collection by the local governmental body in a “final” decision without any written explanation. Incredibly, the State responded:
We live in a democracy. If the citizens are unhappy with how the quorum court or whatever the governing body is exercising their power, they are allowed to vote them out.
Act 372 says materials should not be censored from a library’s collection “solely” because of its “viewpoint” — but that implies “viewpoint” may be part of the reason for banning a book, even the main reason. Ultimately, the law would “permit, if not encourage, library committees and local governmental bodies to make censorship decisions based on content or viewpoint,” Brooks writes.
That clearly violates the First Amendment, the judge said, quoting the Supreme Court’s decision in a 1989 case over flag burning: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Brooks also devoted a lengthy section in his opinion to essentially providing a defense of libraries’ social value, and a brief history of libraries as an institution.
At points in his opinion, the judge seemed vaguely astonished by the nature of the state law before him. “The passage of Act 372 prompts a few simple, yet unanswered questions,” he wrote. “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?”
Coulter, the CALS director, said he appreciated the homage to libraries. “I’m extremely grateful that Judge Brooks took the time and care to write a 49 page order that eloquently reminds all of us of how important libraries and librarians are to our values,” he said. “In other words, as folks in southwest Arkansas say, this order is stout as horseradish!”
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