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Federal judge rules Arkansas law involving furnishing ‘obscene’ materials at libraries, bookstores is unconstitutional [1]

['Ron Wood']

Date: 2024-12-23





FAYETTEVILLE -- A federal judge has struck down as unconstitutional two provisions of a state law aimed at criminalizing the furnishing of obscene materials to minors at public libraries and bookstores.

The law was challenged by the American Civil Liberties Union of Arkansas and others on behalf of a coalition of public libraries, booksellers, patrons of bookstores, boookseller associations and author associations.

"This ruling reaffirms what we have said all along -- Act 372 is a dangerous and unconstitutional attack on free expression," said John Williams, ACLU of Arkansas Legal Director. "Our libraries and bookstores are critical spaces for learning, exploration and connection. By striking down these provisions, the court has safeguarded the right of every Arkansan to access ideas and information without fear of censorship or prosecution."

Holly Dickson, executive director of the ACLU of Arkansas, said the decision was a win for intellectual freedom.

"This was an attempt to 'thought police,' and this victory over totalitarianism is a testament to the courage of librarians, booksellers and readers who refused to bow to intimidation," Dickson said. "Arkansans deserve a state where intellectual freedom thrives, and this ruling ensures that libraries remain sanctuaries for learning and exchange of ideas and information."

Arkansas Attorney General Tim Griffin vowed to appeal the ruling.

One section of the law would have made furnishing certain materials to a minor a misdemeanor punishable by up to a year in county jail.

Another section mandated a new procedure for libraries, city councils and county quorum courts to follow when evaluating a citizen's request to move or remove a book from a public library's permanent collection.

U.S. District Judge Timothy L. Brooks granted a preliminary injunction in July 2023 preventing the two sections of the law from taking effect. Brooks issued a final ruling in the case Monday, noting that nothing had changed in the case since the preliminary injunction was issued.

"Sections 1 and 5 of the Act remain vaguely worded and susceptible to multiple meanings; Section 1 violates the due process rights of professional librarians and booksellers and the First Amendment rights of library and bookstore patrons; and Section 5 empowers local elected officials to censor library books they feel are not 'appropriate' for citizens to read and allows (if not encourages) content- and viewpoint-based restrictions on protected speech without any compelling governmental purpose," Brooks wrote in his order granting summary judgement and a permanent injunction in the case.

Brooks noted that prior to Act 372, it was already illegal in Arkansas to provide obscene materials to minors, but librarians were granted special immunity from prosecution if they were acting within the scope of their regular employment duties.

"Up until the passage of Act 372, it appears that Arkansas's more pressing concern with respect to librarians was that they be insulated from meritless claims and time-wasting prosecutions," Brooks wrote. "Times have changed."

Plaintiffs argued the law was vague and contained undefined terms that could subject the librarian and bookstore plaintiffs to a credible fear of prosecution, as they are uncertain what lengths they must go to in order to comply with the law.

Brooks said it also follows that to avoid criminal prosecution, librarians and booksellers would have no other choice but to burden older minors' and adults' access to books that contain even a modicum of sexual content.

"They will be required to place such books in areas where younger minors cannot see or reach them, whether on high shelves or in locked rooms," Brooks wrote. "The State offers no legitimate governmental reason why such burdens on public access to speech are necessary or narrowly tailored to a particular purpose."

Brooks found that Section 1 of Act 372 is unconstitutional for two reasons. First, it is overbroad because it regulates substantially more speech than the Constitution allows and therefore violates the First Amendment rights of Arkansans. Second, its terms, such as "harmful to minors," are so vague they fail to provide librarians and booksellers with adequate notice of what conduct is prohibited, thus violating their due process rights.

Brooks said the state Legislature could have more narrowly tailored a law that was not overly broad, but they chose not to do so. That leaves librarians and booksellers having to impose unconstitutional restrictions on access to materials by older juveniles and adults, chilling their access, Brooks said.

"If the General Assembly's purpose in passing Section 1 was to protect younger minors from accessing inappropriate sexual content in libraries and bookstores, the law will only achieve that end at the expense of everyone else's First Amendment rights," Brooks wrote. "The law deputizes librarians and booksellers as the agents of censorship; when motivated by the fear of jail time, it is likely they will shelve only books fit for young children and segregate or discard the rest. For these reasons, Section 1 is unconstitutionally overbroad."

Brooks found the law's undefined terms would permit arbitrary and discriminatory enforcement and found it constitutionally void for vagueness because it would violate librarians' and booksellers' due process rights by subjecting them to criminal prosecution without clearly defining the prohibited conduct.

Brooks said the provision of the law related to challenging the appropriateness of materials is not limited to sexual content and the law does not define "appropriateness" at all. Instead, a book challenger may target any expression of ideas that he or she personally deems inappropriate.

Once a challenger puts their grievance in writing, Section 5 states it must be forwarded to "a committee of library personnel" to be screened for appropriateness to determine whether the material being challenged would be relocated within the library's collection to an area that is not accessible to minors.

"However, Section 5 does not suggest how a library would create an area 'that is not accessible to minors,'" Brooks wrote. "And somewhat confusingly, despite this provision, Section 5 is not limited to challenges for appropriateness as to minors; as any book geared for any age reader could be challenged."

If the committee segregated or withdrew the challenged material, the challenge would have ended there. But, if the committee rejects the challenge, Section 5 permits the challenger to "appeal the committee's decision to the governing body of the county or city" that financially supports the library, Brooks noted.

The quorum court or city council members would have met to consider and vote on whether to censor the challenged material, either by withdrawing it from the library's main collection or relocating it to another part of the library. Their decision would have been final, and Section 5 did not require the governing body to issue a written explanation for its decision.

"Book challenges now are resolved by professional librarians, but Section 5 challenges may be appealed to elected officials with discretion to decide whether a book is 'appropriate' without the benefit of procedural requirements or standards," Brooks wrote. "They don't even have to read the books first."

Brooks noted that in December 2022, shortly before Act 372 was signed into law, Crawford County's Quorum Court threatened to defund the county library if its director did not find a way to satisfy constituents' concerns about books with LGBTQ themes. Those books, and perhaps others with unpopular or controversial themes, were removed from general circulation and placed in a separate section of the library. In September, U.S. District Judge P.K. Holmes III enjoined Crawford County's actions as unconstitutional and in violation of the library patrons' First Amendment rights.

Brooks said that without a definition of what "accessible to minors" means, if Section 5 were to take effect, libraries would have to guess what level of security would be necessary to satisfy the law'srequirements.

"In addition to its vague terms, Section 5 is unconstitutional because it unnecessarily imposes content-based restrictions on protected speech," Brooks wrote. "The Court therefore concludes that Plaintiffs have established as a matter of law 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."





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[1] Url: https://www.arkansasonline.com/news/2024/dec/23/federal-judge-rules-arkansas-law-involving/

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