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Saturday, December 9, 2023
Courthouse News Service
Saturday, December 9, 2023 | Back issues
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Judge blocks Arkansas law targeting librarians for providing ‘harmful’ materials to minors

In practice, the law would have burdened teens from accessing free library books appropriate for their reading level, the federal judge wrote.

LITTLE ROCK, Ark. (CN) — A federal judge pulled the plug on an Arkansas law that would have held librarians and booksellers criminally liable for providing “harmful” reading material to minors, mere days before the law was set to take effect. 

U.S. District Court Judge Timothy L. Brooks, a Barack Obama appointee, issued the temporary injunction on Saturday. He found two sections of the Arkansas Act 372 were likely to cause irreparable harm to the plaintiffs, which include local libraries and community bookstores in the Bear State, along with the American Booksellers Association and Association of American Publishers Inc.

Those found to have violated the law would face being convicted of a Class D felony, a classification that encompasses crimes such as aggravated assault and breaking and entering, and which carries a maximum sentence of six years in prison and a fine up to $10,000.

The act was signed into law by Arkansas’ Republican Governor Sarah Huckabee Sanders on March 31 and would have gone into effect on Aug. 1.

Section 1, criminalizing the act of providing “harmful” content to minors, was the first portion of the law the plaintiffs challenged.

Based on his interpretation of case law — specifically a similar statute enacted 20 years prior in Arkansas that was later struck down — Brooks found Act 372 to be overbroad. 

As a result of its broad application, the judge’s understanding is that the act could harm protected forms of speech. In practice, he reasoned, it may lead libraries to restrict anyone under the age of 18 from accessing books with any reference to sexual themes.

“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,” Brooks wrote.

Brooks found the vague nature of how the law construes a librarian or bookseller to “provide” or “make available” obscene content does not illicit a concrete understanding for plaintiffs to follow to avoid violating the law.

Also challenged by the plaintiffs was Section 5 of Act 372, creating a procedure by which materials at county or municipal libraries may be challenged for their “appropriateness.”

The procedure permits people “affected by the material” to challenge it by meeting with a librarian, who must assemble a review committee to consider the challenge and whether to relocate the material or remove it from the collection.

Brooks made his view of the provision clear: “Section 5 of Act 372 is very poorly drafted.”

The judge’s doubtfulness is rooted in what he described in the inconsistent and ambiguous terms outlined in the statute. 

“In Section 5, the term 'appropriateness' is fatally vague, all but guaranteeing that the challenge procedure will result in books removed or relocated based on the content or viewpoint expressed therein,” Brooks wrote.

Brooks also highlighted in his opinion the lack of limiting language in Section 5. 

While Act 372 seeks to criminalize specific content being provided to minors, books meant for adults may also be challenged under the section. A book found to be inappropriate for minors may be relocated to an area for adults.

However, if a book were to be deemed inappropriate for all readers, then it would simply be withdrawn from the collection, creating a content-based restriction of speech.

Content-based restrictions have long been held unconstitutional due to their ability to chill protected speech. Such restrictions limit the message of the speech, whereas content-neutral restrictions, which have been viewed more favorably by courts, limit how the speech is shared.

“The Court finds that Plaintiffs have established a likelihood that Section 5 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,” Brooks wrote.

Arkansas Attorney General Tim Griffin's office will be “reviewing the judge’s opinion and will continue to vigorously defend the law,” Griffin wrote an email to The Associated Press.

On social media, the American Library Association called Judge Brook’s decision “good news for librarians, booksellers and citizens of Arkansas!”

For nearly 150 years, the ALA has been an advocate for librarians around the world. With the recent rise of book bans and the passing of legislation like Arkansas’ Act 372, the organization has been a vocal opponent of censorship in libraries.

Arkansas is not the only state to see its law restricting content at libraries and bookstores challenged. Last week, a coalition of booksellers and national bookseller and publisher associations sued the State of Texas for its law targeting “sexually explicit” materials in school libraries and bookstores.

House Bill 900 was signed into law by Republican Governor Greg Abbott in June and is set to take effect on Sept. 1. The law would require school libraries to remove explicit content from shelves and require students to obtain permission from their parents to view content deemed “sexually relevant.” Book vendors will be required to rate books based on their depictions or reference to sex before selling to public schools.

Similar to the Arkansas case, plaintiffs in the Texas case argue that the law is overly broad that will harm the speech rights of Texans without serving a compelling state interest. 

The American Booksellers Association, the Association of American Publishers, the Authors Guild and the Comic Book Legal Defense Fund are plaintiffs in both the Texas and Arkansas cases.

A vast majority of the book bans have focused on material with LGBTQ+ expression. States such as Texas and Florida have led the charge in removing such books since 2021.

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Categories / Civil Rights, Education, Government, Media, Regional

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