Arkansas law imposes jail time for librarians and booksellers who provide “harmful” content to minors

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A coalition of libraries, booksellers, publishers, county residents, and civil rights groups filed a federal lawsuit challenging an Arkansas law that makes it a crime, punishable by up to a year in jail, for librarians and booksellers to make “obscene materials” or other content “harmful to minors” available to people under the age of 18. 

Key Players

In January 2023, Sarah Huckabee Sanders (R) was inaugurated as the 47th governor of Arkansas. She is the first woman to hold this role and the youngest governor in the United States. From 2017 to 2019, Sanders served as White House Press Secretary for former President Donald Trump.

Nate Coulter, the executive director of the Central Arkansas Library System and a self-proclaimed “fan of progressive policies,” has had a successful career as a partner in two law firms. He formerly served as assistant legal counsel to then-Gov. Bill Clinton. In 1993, Coulter ran for lieutenant governor and lost in a close race to Mike Huckabee, Sanders’s father.

State Sen. Dan Sullivan (R), whose district includes Jonesboro, assumed office on Jan. 9, 2023. He sponsored Act 372, the state law that imposes jail time for librarians who provide “harmful” content to minors.  

Further Details

Crawford County, located in the Ozarks region of northwestern Arkansas, along the border with Oklahoma, leans strongly conservative.

Controversy is not new to the Crawford County Library (CCL), where debates over the appropriateness of materials have been ongoing for months. On Nov. 10, 2022, county residents Jeffrey and Tammi Hamby accused the then-CCL director and other library staff, of “normalizing and equating homosexual and transexual lifestyles with heterosexual lifestyles with heterosexual family units.” 

The next month, Tammi Hamby was appointed to the CCL board of directors. 

On Jan. 10, 2023, CCL announced that all branches of the library system had “moved their LGBTQ children’s books out of the children’s section into a new area within their respective adult sections.”

The decision to segregate materials relating to LGBTQ+ subject matter was met with backlash from some county residents. However, the county defended its decision by claiming that it was within its rights to “protect children from exposure to materials that might harm their innocence.”

On Mar. 31, 2023, Sanders signed Act 372 into law, amending “the law concerning libraries and obscene materials made available to minors,” and defining “items” that are “harmful to minors” as “material or performance that depicts or describes nudity, sexual conduct, sexual excitement, or sadomasochistic abuse.”

Some contested books contain gay characters or LGBTQ+ themes, such as one book that retells the traditional story of Cinderella through a queered narrative.

Availability Provision

The “Availability Provision” of the law states that a person may be charged with a crime if they “furnish, present, provide, make available, give, lend, show, advertise, or distribute to a minor an item that is harmful to minors.”

The Availability Provision is very similar to a 2003 Arkansas statute known as the Display Provision, which made it a Class B misdemeanor to “display material that is harmful to minors in such a way that the material is exposed to the view of a minor as part of the invited general public.” 

In 2004, the Display Provision was challenged in the U.S. District Court for the Eastern District of Arkansas. Then-Judge G. Thomas Eisele, nominated by former President Richard Nixon, found the provision “facially unconstitutional under the First and Fourteenth Amendments” for being overbroad and imposing prior restraints on the display of constitutionally protected, non-obscene materials to adults and older minors. The Display Provision was declared void and of no effect.

But the 2023 provision criminalizes the same category of material as the 2003 provision that Eisele deemed a violation of the First Amendment.

Challenge Procedure

The Challenge Procedure of the law requires public libraries to establish a policy that allows any “person affected by the material” to challenge the “appropriateness” of library books. It does not define or establish criteria for libraries to determine the “appropriateness” of its materials. 

Additionally, the law does not require local governing bodies to document for, or disclose to, the public their reasons for approving library committee decisions to relocate materials. There is also no appeal system for library members who believe material was wrongfully sent to a segregated section, making those decisions by local governing bodies difficult to redress.

An ongoing issue

Crawford County is not the only region of the U.S. to have criminalized the availability of “obscene” materials to minors. Fifteen states have considered bills of this nature. 

In 2022, Oklahoma became the first state to pass legislation removing librarians’ protection from prosecution. Since then, governors of Indiana and Montana signed bills into law. In Idaho and North Dakota, similar bills passed the states’ legislatures, but were vetoed by their governors. 

Outcome

Federal lawsuit against Crawford County

On June 2, 2023, a coalition, led by the Central Arkansas Library System – including the American Civil Liberties Union (ACLU) of Arkansas, the Fayetteville Public Library, Eureka Springs Carnegie Public Library, multiple Arkansas bookstores, the American Booksellers Association, the Association of American Publishers, and the Freedom to Read Foundation – filed a federal lawsuit against Crawford County and a litany of county officials, including County Judge Chris Keith, who appointed Tammi Hamby to the CCL board of directors, and state 28 prosecutors.

The lawsuit asserts that Act 372 is a vague and overbroad content-based restriction on Free Speech that must be declared unconstitutional, just as the Display Provision was in 2004. “Act 372 forces bookstores and libraries to self-censor in a way that is antithetical to their core purposes,” the complaint states.

The coalition argues that the law enforces an infeasible measure, asserting that denying the availability of materials to minors would inevitably force libraries and booksellers to deny access to adults. 

“The restrictions imposed by the Availability Provision necessarily will result in the removal from circulation and accessibility of large quantities of materials constitutionally protected as to adults and as to older minors in violation of the First and Fourteenth Amendments to the U.S. Constitution,” the complaint states, further addressing issues such as libraries and bookstores lacking the space or resources to create a segregated “adults only” section. 

The complaint also argues that the Challenge Procedure imposes an unlawful prior restraint by allowing local governments to make decisions to censor materials without obtaining judicial approval, violating the First and 14th Amendments.  

Conflicting perspectives

Sullivan defended the legislation in an opinion piece in the Arkansas Democrat-Gazette. 

“We don’t exempt pharmacists from drug-dealing laws, slaughterhouses from animal-cruelty laws and doctors from sexual-assault laws,” he wrote. “Yet prior to my bill, teachers and librarians, who are the closest to our children, were 100 percent legally free to provide children obscene material at their jobs.”

Sullivan argued that a citizen’s right to object to “obscene” material is not new. Rather,  the “law simply provides a formal process for review and, critically, keeps that decision-making local–as it has always been.”

He also personally challenged Coulter. “Throughout the process of enacting Act 372, Coulter made claims about it,” Sullivan said. “He asserted it’s unconstitutional. It’s not. He claimed it was vague. It’s not. He was generally confused. That’s on him.”

Another plaintiff, Adam Webb, executive director of the Garland County Library, called the law a “catch-22” situation. “Either I comply with the law but violate the constitutional rights of my patrons, or I uphold the constitutional rights of my patrons and possibly get charged with a crime,” Webb told The New York Times.

The law is scheduled to take effect on Aug. 1, 2023. As of June 15, 2023, there were no further developments.