Court Blocks Arkansas Law That Limits "Harmful to Minors" Books in Public Libraries and Bookstores, and Also

limits "inappropriate" books in libraries.

An Arkansas statute (Act 372) makes it a crime (in its section 1) for librarians and booksellers to "[f]urnish a harmful item to a minor." The U.S. Supreme Court has held that the First Amendment doesn't protect distribution of "obscenity," a narrow category that basically covers hard-core pornography. To be obscenity, a work must satisfy all three of the following elements, largely drawn from Miller v. California (1973), though with extra detail added by Smith v. U.S. (1977), Pope v. Illinois (1987), and Brockett v. Spokane Arcades, Inc. (1985):

1. "the [a] average person, [b] applying contemporary community standards, would find that the work, [c] taken as a whole, [d] appeals to the prurient interest" (which means a "shameful or morbid" interest in sex as opposed to a "normal, healthy" interest);
2. "the work depicts or describes, [a] in a patently offensive way [under [b] contemporary community standards], [c] sexual conduct specifically defined by the applicable state law"; and
3. "the work, [a] taken as a whole, [b] lacks serious [c] literary, artistic, political, or scientific value[, [d] applying national standards and not just community standards]."

And the Court has also held that the law may bar distribution to minors of sexually themed material, if it fits within what's basically the Miller test with "of minors" or "for minors" added to each prong (e.g., "the work taken as a whole, lacks serious literary, artistic, political, or scientific value for minors"). Ginsberg v. New York (1968), a pre-Miller case, upheld a law that implemented the then-current obscenity test with "to minors" added at the end of each prong; most lower courts and commentators have assumed that Ginsberg plus Miller justify laws that implement the Miller-based test with "to minors" added to each prong as well. This category is often labeled material that is "obscene for minors" or "harmful to minors." (It's a completely different First Amendment exception from the one for child pornography, which focuses not on the recipient of the material but on the person depicted in the material.)

Now of course minors vary sharply in age, so this raises the question: Is a work "obscene as to minors" when it has value for a 17-year-old (or isn't patently offensive when displayed to a 17-year-old) but lacks value for a 5-year-old? Back in 2004, the Arkansas Supreme Court basically said such a work is indeed obscene as to minors; and because of this, Judge Timothy Brooks (W.D. Ark.) held today in Fayetteville Public Library v. Crawford County, Section 1 of Act 372 is likely unconstitutional:

Arkansas's highest court [has concluded] that a broad interpretation [of "harmful to minors"]—which swept in books that would be considered harmful to the youngest of minors—was what the Arkansas General Assembly intended when drafting the law. The Court explained:

If the younger minors are to be protected from "harmful" materials, surely the General Assembly did not intend for those younger children to be permitted to access materials that would arguably be "harmful" to them, even though not "harmful" to an older child. We cannot construe Arkansas' statutory law in such a way as to render it meaningless, and we will not interpret a statute to yield absurd results that are contrary to legislative intent.

Shipley, Inc. v. Long (Ark. 2004)…. Since this term ["harmful to minors"] has been construed broadly by the Arkansas Supreme Court to mean material that is obscene to the youngest of minors, it was up to the General Assembly to write a narrowly tailored law with this definition in mind. That did not happen, and the law's overbreadth should not come as a surprise to its drafters….

Given the above, the only way librarians and booksellers will be able to comply with Section 1 and still allow those under the age of eighteen to enter their facilities is to keep them away from all books with sexual content. This could be done by creating strict adults-only areas—into which would go potentially hundreds of books, from disposable paperback romance novels to classics of literature like Romeo and Juliet, Ulysses, Catcher in the Rye, The Handmaid's Tale, or The Kite Runner.

In other words, to avoid criminal penalties under Section 1, librarians and booksellers must impose restrictions on older minors' and adults' access to vast amounts of reading material. Creating segregated "18 or older" spaces in libraries and bookstores will powerfully stigmatize the materials placed therein, thus chilling adult access to this speech. See, e.g., Doc. 99-7, ¶ 5 (Farrell Decl.) (testifying that browsing in an adults-only room "would signal to others that" she is "interested in reading pornography"); Doc. 99-19, p. 18 (Caplinger Depo.) (describing stigma that would attach to adults-only area of the library and implication that the books would "not just [be] inappropriate, but somehow pornographic or obscene").

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. 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….

{Notably, there is no exemption for parents or guardians under Section 1. The Court surmises that if a parent were to act as a straw buyer or borrower of a book that a prosecutor deemed "harmful" to a young minor, criminal liability could attach if the parent then made the material available to her seventeen-year-old child.}

The court also held that Section 1's prohibition on people "present[ing]," "mak[ing] available," and "show[ing]" such material to minors is also unconstitutionally vague because it leaves "leaves librarians and booksellers unsure about whether shelving books they know contain sexual content may subject them to criminal liability." To quote the court's opinion at the preliminary injunction stage,

During the evidentiary hearing, the Court asked the State whether "makes available" meant "merely having [a book] on a bookshelf with nothing harmful on the cover or the spine, merely having it on a shelf with other books," and the response was, "I'm not sure we go that far." The State's attorney suggested, however, that it was possible that liability could attach to booksellers or librarians "if there was an open book that was just on the shelf" and the bookseller or librarian "kn[ew] for a fact the minor was actually viewing the material and then willfully turn[ing] a blind eye to it."  This explanation demonstrates the challenge facing booksellers and librarians. There is no clarity on what affirmative steps a bookseller or librarian must take to avoid a violation.

The court also held that another provision of the Act, Section 5—which provided that books could be challenged as "inappropriate" for minors, and that such "inappropriate" books would need to be "withdraw[n] or "relocate[d]"—was likely unconstitutional as well, partly because it's too vague:

Section 5's pivotal term, "appropriateness," is susceptible to multiple interpretations and all but guarantees that the challenge process will result in the withdrawal or relocation of books based on their content or viewpoint. As stated, any book, even one written for an adult reader, could be deemed "inappropriate" and subject to challenge under Section 5.

Though the State asks that Plaintiffs have faith that Arkansas's local elected officials will preserve, protect, and defend their First Amendment rights, the Court's view of the matter is not quite so sanguine—particularly given the cautionary tale that the Virden case presents. There, quorum court members directed the librarian to move children's books out of the children's section into a separate area they euphemistically named "the social section." Judge Holmes found it "indisputable that the creation and maintenance of the social section was motivated in substantial part by a desire to impede users' access to books containing viewpoints that are unpopular or controversial in Crawford County."

Tellingly, when a Crawford County Library Board member was asked under oath why the books were moved to the social section, his answer was that the books were "inappropriate." And County Judge Keith, who under Section 5 would be required to "present" to the quorum court all books "being challenged," testified in his deposition that he did not know what "appropriate" meant in the context of Section 5 but guessed it could mean "different thing[s] for different people."

In the absence of a statutory definition of "appropriateness," the Court turns to the dictionary, which defines it as "the state of being suitable for a particular person, condition, occasion or place." Given this definition, it is difficult, if not impossible, to assess a challenged book's "appropriateness" without considering its content, message, and/or viewpoint. In fact, Section 5 specifically contemplates that a library review committee or local governmental body consider the material's "viewpoint." The law cautions only that a book should not be withdrawn from the library's shelves "solely for the viewpoints expressed within the material." Section 5 is constitutionally infirm because it "fail[s] to define the [key] term at all, and, consequently, fails to provide meaningful guidance for those who enforce it."

Other important terms in Section 5 are similarly vague. The statute uses both "withdraw" and "relocate" with respect to challenged books. Obviously, withdrawing a book from the library's collection would pose a greater burden on access to protected speech than relocating the book to another section of the library, but Section 5 presents both options as though they were equivalent. Moreover, if a library committee or local governmental body elected to relocate a book instead of withdrawing it, Section 5 contemplates moving the book "to an area that is not accessible to minors under the age of eighteen (18) years"—without defining 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's "[in]accessib[ility]" requirements. For all of these reasons, the Court finds that Section 5 fails the "stringent vagueness test" that applies to a law that interferes with access to free speech.

And the court concluded that section 5 was also likely unconstitutional because it was impermissibly content-based:

The challenge procedure in Section 5 merits strict scrutiny. At each step in the appeal process, evaluators must consider the content of the library material to screen for "appropriateness" before deciding whether the public should be deprived access to the material. Therefore, any successful challenge would result in a content-based restriction on otherwise constitutional speech—unless the challenged book met the legal definition of obscenity, which city governments are not required to consider….

If Section 5 is intended to protect minors, it is not narrowly tailored to that purpose. Nor is Section 5 limited to reading material that is obscene or "harmful to minors," which will significantly burden constitutionally protected speech….

The State's defense of Section 5 boils down to an argument that censorship of otherwise constitutionally protected speech is acceptable because every selection decision that affects a public library's collection—from the original purchase of materials by librarians, to the books' sequestration on special shelves or behind locked doors, to their outright removal from the collection—is "government speech" not subject to constitutional scrutiny. But Section 5 has nothing to do with the library's curation decisions, so if indeed such decisions constitute government speech, the State's arguments in that regard are unavailing. First of all, no one is arguing that librarians are violating their patrons' First Amendment rights through curation decisions. Secondly, burdening access to books within a public library collection or removing books from that collection due to content or viewpoint—which Section 5 permits, if not encourages here—implicates the First Amendment and does not qualify as protected government speech. {Just six months ago, the Eighth Circuit held that in the context of public school libraries—which are subject to more government restriction than public community libraries—"it is doubtful that the public would view the placement and removal of books … as the government speaking." GLBT Youth in Iowa Schs. v. Reynolds (8th Cir. 2024).}

"The right of freedom of speech … includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read and freedom of thought …." "[T]he State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge." And when it comes to children, it is well established that "minors are entitled to a significant measure of First Amendment protection" that the government may restrict "only in relatively narrow and well-defined circumstances," which are not present here. It is also well established that "[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them." Finally, when it comes to public spaces, like public libraries, "the governmental interest in protecting children from harmful materials … does not justify an unnecessarily broad suppression of speech addressed to adults."