Posted November 19, 2004.

Judge Strikes Down Arkansas Harmful-to-Minors Law

A federal judge declared unconstitutional November 17 the provision of an Arkansas law that required “material harmful to minors to be obstructed from view and segregated in commercial establishments and for other purposes.” Act 858, which was never enforced pending the ruling of U.S. District Judge G. Thomas Eisele, was challenged just before it was scheduled to go into effect in July 2003 by a coalition that included the Arkansas Library Association, the Freedom to Read Foundation, publishers, booksellers, and civil libertarians.

In his decision, Eisele stated that the law’s provisions are “overbroad and impose unconstitutional prior restraints on the availability and display of constitutionally protected, non-obscene materials to both adults and older minors.” Eisele’s opinion reflected the interpretation he received a month earlier from the state supreme court—nonbinding advice that jurists are allowed to seek under Arkansas statute. The state court had responded that because the law doesn’t differentiate between a 17-year-old and a very young child, the display provision mandated “that some physical obstacle stand between minors and the area where the prohibited material is displayed, so that minors have no access to such material.” Eisele concluded that the law “stifles the access of adults and older minors to communications and material they are entitled to receive and view.”

The constitutionality of Act 858 hinged on whether Arkansas booksellers and librarians could “stock shelves as though everything was suitable for a 5-year-old,” plaintiff attorney John Burnett said in the November 18 Little Rock Arkansas Democrat-Gazette. “The answer is no.”

Posted November 19, 2004.