Arkansas Can't Jail Librarians for Giving Kids 'Harmful' Books

Portions of a law, struck down last week, would have subjected individuals to misdemeanor charges for providing "harmful" materials to minors.

Portions of an Arkansas law that would have subjected librarians to criminal charges for letting kids check out books deemed "harmful to minors" were struck down by a federal judge last week, who ruled that parts of the law violated the First and Fourteenth Amendments.

Act 372, signed into law by Arkansas Gov. Sarah Huckabee Sanders (R) in March 2023, requires public libraries to allow citizens to challenge library materials. Each challenge must undergo a lengthy review process, and challenged books may be moved to an area off-limits to minors.

The law also states that anyone who provides material deemed "harmful to minors"—defined as showing "nudity, sexual conduct, sexual excitement, or sadomasochistic abuse" while also being in the prurient interest, patently offensive, and lacking "literary, scientific, medical, artistic, or political value for minors"—is guilty of a misdemeanor offense, punishable by up to a year in jail.

In June 2023, a group of Arkansas public libraries, bookstores, and publishing groups filed a lawsuit challenging the law. The group argued that the threat of criminal prosecution "necessarily [forces] libraries and bookstores to confine to a secure 'adults only' area—and so to segregate from their general patrons and customers—any item that might be deemed harmful to the youngest minor, even if there is no constitutional basis for limiting its availability to older minors or adults. Where libraries and booksellers lack the space or resources to construct 'adults only' areas, their only choice will be to remove all materials which might be deemed harmful to their youngest, least developed patrons or customers."

In July 2023, a federal judge blocked part of the law, temporarily halting the challenged portions during litigation.

Last Monday, Judge Timothy L. Brooks of the United States District Court for the Western District of Arkansas went a step further and permanently struck down portions of the law altogether.

According to Brooks, the first section of the law, which criminalizes providing "harmful" items to minors, is unconstitutionally overbroad "because it regulates substantially more speech than the Constitution allows and therefore violates the First Amendment rights of Arkansans." Additionally, the section's "terms are so vague that they fail to provide librarians and booksellers with adequate notice of what conduct is prohibited, thus violating their due process rights."

Brooks also found that the other challenged section of the law, which mandated libraries follow onerous procedures for book challenges, was also unconstitutional for being both vague and placing "content-based restrictions on protected speech."

"This ruling reaffirms what we have said all along – Act 372 is a dangerous and unconstitutional attack on free expression," John Williams, legal director for the American Civil Liberties Union of Arkansas, said in a press release last week. "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."