Federal judge temporarily blocks parts of Arkansas' new library law

A federal judge on Saturday blocked the implementation of two provisions of a new state law on library materials, days before the law was scheduled to take effect on Tuesday.

In his order granting the plaintiffs' request for a preliminary injunction on Act 372, U.S. District Judge Timothy L. Brooks of the Western District of Arkansas wrote that because the two sections of the law "are likely to result in the abridgment of Plaintiffs’ First Amendment rights, Plaintiffs will suffer irreparable harm if a preliminary injunction is not granted."

In his order granting the plaintiffs' request for a preliminary injunction on Act 372, U.S. District Judge Timothy L. Brooks of the Western District of Arkansas wrote that because the two sections of the law "are likely to result in the abridgment of Plaintiffs’ First Amendment rights, Plaintiffs will suffer irreparable harm if a preliminary injunction is not granted."

Brooks' decision came after attorneys in the case appeared before him on Tuesday for a hearing in Fayetteville on the plaintiffs' request for a preliminary injunction or temporary restraining order.

State Sen. Dan Sullivan, R-Jonesboro, was the lead sponsor of the legislation, which was signed into law by Gov. Sarah Huckabee Sanders on March 30.

A coalition of more than a dozen plaintiffs on June 2 filed a lawsuit in an effort to overturn the two sections of Act 372 as unconstitutional. The coalition includes the public libraries based in Eureka Springs, Fayetteville and Little Rock, as well as trade associations and two bookstores.

The complaint names as defendants the prosecuting attorneys serving in Arkansas' 28 judicial districts, as well as Chris Keith, the county judge of Crawford County. The complaint also names Crawford County itself as a defendant.

In a separate order issued on Saturday, Brooks denied a request to dismiss Crawford County and Keith as defendants.

One contested section of the legislation establishes a new Class A misdemeanor offense of furnishing a harmful item to a minor. Individuals who knowingly provide a minor with a harmful item, or who knowingly make a harmful item available to a minor, could be imprisoned for up to a year if convicted.

In a brief filed June 22, attorneys for the plaintiffs wrote that the so-called availability provision "threatens librarians and booksellers with criminal prosecution for providing protected expression to people with a constitutional right to receive it. Under the statute, librarians and booksellers could face criminal liability for providing a 17-year-old with a book that was only potentially 'harmful' to a 5- or 6-year-old."

In a brief filed June 22, attorneys for the plaintiffs wrote that the so-called availability provision "threatens librarians and booksellers with criminal prosecution for providing protected expression to people with a constitutional right to receive it. Under the statute, librarians and booksellers could face criminal liability for providing a 17-year-old with a book that was only potentially 'harmful' to a 5- or 6-year-old."

The brief argues that library and bookstore personnel might respond to the provision by banning patrons under 18 or removing from their shelves books that the law could consider to be "harmful," regardless of their scientific or literary value, the brief said. That action would depend on libraries' "respective budgets and tolerance for criminal legal risk," the brief adds.

The other contested section sets a process for individuals to challenge the appropriateness of materials held in a public library's collection.

Under the law, library personnel would be required to relocate the material to an area inaccessible to minors in response to a successful challenge. A decision not to relocate the material could be appealed to the local city council in the case of a municipal library, or to a quorum court in the case of a county library.

Under the law, library personnel would be required to relocate the material to an area inaccessible to minors in response to a successful challenge. A decision not to relocate the material could be appealed to the local city council in the case of a municipal library, or to a quorum court in the case of a county library.

"By providing a new, sweeping process for any person to challenge the 'appropriateness' of any book in an Arkansas library in order to remove it from the library’s general collection, the Challenge Procedure forces the same set of choices upon Arkansas libraries to come into compliance: banning minors from libraries, undertaking prohibitive physical restructuring of their libraries to ensure that 'inappropriate' books are not 'accessible' to minors, or altogether removing 'inappropriate' books from their collections," the June 22 brief said.

"By providing a new, sweeping process for any person to challenge the 'appropriateness' of any book in an Arkansas library in order to remove it from the library’s general collection, the Challenge Procedure forces the same set of choices upon Arkansas libraries to come into compliance: banning minors from libraries, undertaking prohibitive physical restructuring of their libraries to ensure that 'inappropriate' books are not 'accessible' to minors, or altogether removing 'inappropriate' books from their collections," the June 22 brief said.

Other sections of Act 372 strip language from state law shielding school and library personnel from prosecution for disseminating material claimed to be obscene and establish a similar challenge process for school districts' media centers.

In a written report to the board of the Central Arkansas Library System earlier this week, Executive Director Nate Coulter wrote that after listening to the arguments in court on Tuesday, "I remain convinced that Act 372 is flawed and at odds with our constitution. But Judge Brooks’ assessment, not mine, will determine Act 372’s fate and govern what we do next at [the library system]."

In a written report to the board of the Central Arkansas Library System earlier this week, Executive Director Nate Coulter wrote that after listening to the arguments in court on Tuesday, "I remain convinced that Act 372 is flawed and at odds with our constitution. But Judge Brooks’ assessment, not mine, will determine Act 372’s fate and govern what we do next at [the library system]."

In advance of a ruling, "the appropriate staff and I have been engaged in ongoing efforts to chart a course for revising the library's policies to comply with the mandated provisions of Section 5 of Act 372 that deals with requests for reconsideration," Coulter wrote.