Lawsuit Filed By Libraries And Booksellers Challenges Arkansas’ New Restrictions On Library Materials

By James Mercado On Jun 5, 2023

Using the First and 14th Amendments of the U.S. Constitution as justification, a group of 17 plaintiffs filed a complaint in federal court on Friday asking the judge to invalidate two provisions of Act 372, a new Arkansas law regulating school and public library publications.

Act 372 is “a vague, sweeping law that restrains public libraries and booksellers in Arkansas from making available constitutionally protected books and other media to their patrons and customers.” the complaint’s opening.

The Central Arkansas Library System, the Fayetteville Public Library, and the Eureka Springs Carnegie Public Library are the plaintiff libraries. On May 25, the library system board approved and authorized the action.

The American Booksellers Association, the Association of American Publishers, the Arkansas Library Association, and the Freedom to Read Foundation are among the trade associations. Two bookstores, Pearl’s Books in Fayetteville and Wordsworth Books in Little Rock, are also named as plaintiffs.

Individual plaintiffs include Adam Webb, the director of the Garland County Library, and Nate Coulter, the executive director of the Central Arkansas Library System.

28 Arkansas prosecutors are named as defendants in the complaint.

In addition, Crawford County and Crawford County Judge Chris Keith are named in the complaint due to the county library’s recent decision to ban LGBTQ-themed children’s books from the children’s department. Per the complaint, Act 372 will result in more modifications to the Crawford County Library.

The Western District of Arkansas U.S. District Court received the complaint. Absent any injunction obtained before August 1, Act 372 will take effect on that day.

NBC News shared a tweet and update about The Central Arkansas Library System argued in a court filing this week:

The Central Arkansas Library System argued in a court filing this week that the new measure violates the First Amendment by making it a misdemeanor for libraries to give children access to materials that are deemed “harmful to minors.”

— NBC News (@NBCNews) June 2, 2023

Sen. Dan Sullivan, a Republican from Jonesboro, served as the bill’s principal sponsor in the Arkansas legislature. On March 30, the governor, Sarah Huckabee Sanders, approved the bill.

Two of the law’s six sections are the subject of the complaint. The first disputed part, the “Availability Provision” in the case, creates a new Class A misdemeanor charge for providing a dangerous object to a minor.

“The term ‘item’ encompasses every form of expressive material that one could expect to find in a public library or bookstore, including books, magazines, and motion pictures,” the complaint said.

As per the complaint, Act 372’s definition of “harmful to minors” is taken to mean material or performances with nudity or s*xual conduct that the average adult would find primarily appeals to a passionate interest in s*x to minors, would be found patently offensive to community standards about what is suitable for children, and lacks cultural severe value.

The complaint notes that the 2004 ruling by then-U.S. District Judge G. Thomas Eisele of Arkansas’ Eastern District, who found the provision to be outright unconstitutional under the First and 14th Amendments and compares the “Availability Provision” to a 2003 law that made it a Class B misdemeanor to display material harmful to minors.

“There is no available narrowing construction that may be employed to reduce the scope of the Availability Provision’s sweeping regulation of expressive material,” the complaint stated. “The Arkansas Supreme Court has definitively interpreted the definition of ‘minor’ in the context of ‘harmful to minor’ laws to refer to all minors, not just younger minors.”

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The other contentious section of Act 372 outlines a procedure for citizens to challenge the appropriateness of public library materials and then appeal the library’s choice to a local city council or quorum court if library officials opt not to move the in question material to a section inaccessible to minors.

The complaint claims that the “Challenge Procedure” amounts to a “de facto licensing scheme” because it empowers local governing bodies to restrict expression without first seeking judicial review, imposes an unconstitutional prior restraint on constitutionally protected, non-obscene material for both adults and older minors, and is unconstitutionally vague.

As per the complaint, local elected officials are granted “undue discretion” to decide “without objective criteria or a record of their reasoning.”

Tim Griffin, the attorney general of Arkansas, responded in a statement sent by a spokeswoman when contacted for comment on Friday, “I am representing the 28 prosecutors named in this lawsuit, and I look forward to defending the constitutionality of Act 372.”

Other provisions of the law allow libraries to reveal private information to patrons and the parents or legal guardians of patrons under the age of 18, expose library staff to the possibility of prosecution for a Class D felony offense if they “knowingly” loan out material believed to be obscene, establish a similar challenge process for school libraries, and allow libraries to disclose confidential library records to patrons.