Freedom to Read Foundation welcomes preliminary injunction barring implementation of Arkansas Act 372

Court Upholds First Amendment rights of Libraries, Librarians, Booksellers, Publishers, Authors and Readers in Commanding Opinion

Washington, D.C. — On July 29, the U.S. District Court for the Western District of Arkansas granted a Preliminary Injunction, barring the implementation of two provisions of Arkansas Act 372, one of which would have subjected librarians and bookstore owners to criminal prosecution unless they removed from shelves serving older minors and adults material deemed unsuitable for the youngest minors. The other provision would have mandated a library book challenge procedure in public libraries whereby individuals may challenge books based on “appropriateness” (an undefined term not based on constitutional standards). In addition review boards would have been allowed or even invited to engage in viewpoint and content based discrimination.  The ruling came in response to the suit filed by a coalition of plaintiffs that includes local Arkansas libraries, as well as authors, publishers, booksellers, librarians, and readers. The bill was signed by the Governor of Arkansas on March 30, 2023 and had been slated to go into effect on August 1.

Excerpts from the Order and Opinion

• The Bill of Rights to the United States Constitution guarantees the right of every American to speak freely and to receive speech.  This freedom of speech, codified in the First Amendment, is enjoyed by everyone--even children…[although] minors’ First Amendment rights are limited in some way. 

• While these boundaries are not clearly defined in law, common sense tells that “[i]n assessing whether a minor has the requisite capacity for individual choices, the age of the minor is a significant factor (quoting the U.S. Supreme Court in Erznoznik v. City of Jacksonville (1975)).  Obviously a seven-year old’s capacity is far different from that of a seventeen-year-old.

• Complying with the Act 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.   It is also likely that adults browsing the shelves of bookstores and libraries with their minor children would be prohibited from accessing most reading materials appropriate for an adult…The breadth of this legislation and its restrictions on constitutionally protected speech are therefore unjustified.

• Section 5 of the Act is very poorly drafted…Perhaps any vagueness may be chalked up to the General Assembly’s haste to enact [it], but the lack of clarity seems to have been by design.  After all, by keeping the pivotal terms vague, local governing bodies have greater flexibility to assess a given challenge, however they please rather than how the Constitution dictates.”

• During the hearing, the State made little effort to defend the vague terms in Section 5 and instead focused its attention on a broader point made in its brief, that “[s]tates may add and remove materials from public libraries at will.” The State seemed to argue that content-based censorship of otherwise constitutionally protected speech, as contemplated by the Section 5 challenge process, was perfectly acceptable. . . . The State is wrong on [this] front.

• After extensive briefing and a day-long hearing, the Court cannot discern what compelling state interests justify Section 5…If the law is intended to protect minors, it is not narrowly tailored to that purpose.  Nor is [it] limited to reading material in public libraries that is obscene or “harmful to minors,” which makes the law likely to significantly burden constitutionally protected speech.

• “The vocation of a librarian requires a commitment to freedom of speech and the celebration of diverse viewpoints unlike that found in any other profession. The librarian curates the collection of reading materials for an entire community, and in doing so, he or she reinforces the bedrock principles on which this country was founded."

• School children “have a First Amendment right to receive information and…school officials are prohibited from exercising their discretion to remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, (quoting the U.S. Supreme Court’s opinion in Board of Education, Island Trees Union Free School District Number 26 v. Pico (1982)).

• Plaintiffs will suffer irreparable harm if a preliminary injunction is not granted.  No legal remedy exists that could compensate Plaintiffs for their loss of protected constitutional rights.  “Loss of First Amendment freedoms, even for minimal periods of time, constitute(s) irreparable injury.” (quoting the U.S. Supreme Court in Elrod v. Burns (1976).

Joint Statement of the Organizational Plaintiffs

Allison Hill, the CEO of the American Booksellers Association; Maria Pallante, President and CEO of the Association of American Publishers; Mary Rasenberger, CEO of the Authors Guild; Deborah Caldwell- Stone, the Executive Director of the Freedom to Read Foundation; Jeff Trexler, the Interim Director of Comic Book Legal Defense Fund; Pearl’s Books; Kandi West, Lia Lent and Lynne Phillips, owners of WordsWorth Books:

“The court has moved decisively to protect the First Amendment rights of Arkansas’ book community, consistent with the rigorous analysis that freedom of speech has always required. In barring the implementation of the challenged provisions of Arkansas Act 372, the court has preserved the constitutional right of the state’s readers to receive information, including viewpoints that state legislators may find disagreeable.  Just as profoundly, the court has shielded the state’s booksellers and librarians from extreme punishments for performing their essential function of making books available to the public.”

What the Bill Would Have Done

The lawsuit challenged two provisions of Act 372 that would have violated the First and Fourteenth Amendments. One component made it a crime for libraries, booksellers, and any brick-and-mortar establishment to display or make available works that might be harmful to minors. This would have required libraries and booksellers to limit all readers to books appropriate for minors or exclude all minor readers from their premises. The second provision made it possible for any person in Arkansas to demand the removal of a book the person deemed inappropriate, limiting readers to one person’s opinion about what books should be in the library, and it would have permitted or encouraged review boards to engage in viewpoint- and content-based discrimination.

Plaintiffs

The plaintiffs in the suit include the American Booksellers Association, Association of American Publishers, Authors Guild, Comic Book Legal Defense Fund, Freedom to Read Foundation, and two local bookstores – WordsWorth Books in Little Rock and Pearl’s Books in Fayetteville, as well as a consortium of local libraries, librarians, and library advocates, which includes Fayetteville Public Library, Eureka Springs Carnegie Public Library, Central Arkansas Library System (CALS), Arkansas Library Association, Advocates for All Arkansas Libraries, Nate Coulter (Executive Director of CALS); Adam Webb, a librarian from Garland County; Olivia Farrell, an adult CALS patron; Hayden Kirby, a 17-year-old CALS patron; and Leta Caplinger, a patron of the Crawford County Public Library.

Counsel

Counsel for the various plaintiffs include John T. Adams of Fuqua Campbell, P.A.; Michael Bamberger of Dentons; Bettina Brownstein of the ACLU of Arkansas; and Benjamin Seel and Will Bardwell of Democracy Forward.

Read the opinion here.