In a highly anticipated ruling on July 29, a federal judge temporarily blocked two key provisions of a recently passed Arkansas law that would have exposed librarians and booksellers to criminal liability for making allegedly inappropriate or “harmful” books accessible to minors in the state.
Known as Act 372, the law was signed by Governor Sarah Huckabee Sanders on March 30—one of several controversial book banning laws pushed in conservative-controlled legislatures in 2023 under the guise of “parental control.” The architects of Act 372 claim that the law is needed to keep “pornographic” material from children. But critics of the law insist that such claims are a fig leaf to justify going after constitutionally-protected diverse materials, such as books involving the LGBTQ+ community.
In a lengthy opinion and order, judge Timothy L. Brooks concluded that portions of the law are "too vague to be understood and implemented effectively" and that, if enacted, would "permit, if not encourage, library committees and local governmental bodies to make censorship decisions based on content or viewpoint, which would violate the First Amendment."
The decision comes after a library-led coalition of 18 plaintiffs filed suit on June 2, arguing that parts of the law violate the First and 14th Amendments. Plaintiffs include the Central Arkansas Library System and a powerful alliance of library, publishing, author, bookseller, and advocacy groups, including the Freedom to Read Foundation (the ALA's First Amendment Defense arm), the Association of American Publishers, the American Booksellers Association, the Authors Guild, the Comic Book Legal Defense Fund, and Democracy Forward.
Specifically, the suit challenges two of the law’s central provisions: an "availability" clause that seeks to regulate the accessibility of materials alleged to be to harmful to minors; and a sweeping new "challenge procedure" which would empower "any person" to challenge the “appropriateness” of materials in a library’s collection. Crucially, the law also removes an existing "exemption from prosecution" provision. Critics say that provision's removal, in concert with the law’s challenged provisions, would lead to rampant self-censorship by exposing librarians and booksellers to potential felony charges—punishable by up to a year in jail—for making books deemed “inappropriate” accessible to anyone under 18.
Brooks' ruling comes after a nearly five-hour hearing on July 25, during which the judge peppered Arkansas state attorneys with tough questions about the law, including concerns that the law did not attempt to distinguish between younger and older minors. State attorneys argued that the plaintiffs' case is based on "hypotheticals" and, in a motion to dismiss, argued that the case should be tossed for lack of standing. In a separate July 29 order, however, Brooks denied the state’s motion to dismiss, allowing the suit to proceed.
Notably, Brooks prefaced his 49-page decision to issue a preliminary injunction with a quote from Fahrenheit 451 author Ray Bradbury: “There is more than one way to burn a book. And the world is full of people running about with lit matches."
From there, citing an array of settled case law—including a 2003 Arkansas 'harmful to minors' measure with strikingly similar language, which was struck down by the courts in 2004—the judge dismantled the new Arkansas law's shaky legal foundation, questioned the law's aim, and eloquently explained and defended the work of librarians.
“For more than a century, librarians have curated the collections of public libraries to serve diverse viewpoints, helped high school students with their term papers, made recommendations to book clubs, tracked down obscure books for those devoted to obscure pastimes, and mesmerized roomfuls of children with animated storytelling,” Brooks wrote. “So, the passage of Act 372 prompts a few simple, yet unanswered questions. For example: What has happened in Arkansas to cause its communities to lose faith and confidence in their local librarians? What is it that prompted the General Assembly’s newfound suspicion? And why has the State found it necessary to target librarians for criminal prosecution?”
In another key passage, Brooks declared the law’s challenge provision “very poorly drafted,” and suggested the law’s "fatally vague" provisions may have been intentional. “Perhaps any vagueness may be chalked up to the general assembly’s haste to enact Act 372, but the lack of clarity seems to have been by design,” he observed. “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.”
The judge also rejected the state’s suggestion that public libraries and librarians essentially function as state actors. “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,” Brooks wrote. "The librarian’s only enemy is the censor who judges contrary opinions to be dangerous, immoral, or wrong.”
And though the institution may be funded by taxpayers and overseen by local and state officials “the public library is not to be mistaken for simply an arm of the state,” Brooks observed. “By virtue of its mission to provide the citizenry with access to a wide array of information, viewpoints, and content, the public library is decidedly not the state’s creature; it is the people’s.”
The injunction means that the two most contentious provisions of the new Arkansas law will not go into effect with the rest of the law on August 1 as scheduled. The rest of the law will take effect, including the repeal of the "exemption of prosecution" for public librarians and educators. Without the two challenged provisions, however, the standard for prosecution is the state's existing obscenity law—a significantly higher legal bar.
In a statement, Arkansas attorneys said they were still digesting the decision, but vowed to vigorously defend the law in court.
In a joint statement, the plaintiffs celebrated the decision. "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," the statement reads. "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.”
For freedom to read advocates, the decision in Arkansas bolsters their efforts, as legal challenges to book bans mount in a number of states. Among those states is Texas, where a group of plaintiffs—including the same publishing industry associations that sued in Arkansas—filed suit last week to block HB 900, a new "harmful to minors" law that would require book vendors in the state to rate books based on "sexual" content. A hearing on the Texas suit is now set for August 18, ahead of the law's looming September 1 effective date.
High profile suits are also pending in Missouri, challenging Senate Bill 775, a school library obscenity law that opponents say forces librarians to censor their collections under the "threat of arbitrary enforcement of imprisonment or fines." And in May, PEN America and Penguin Random House joined forces with a group of authors and parents to sue school administrators in Escambia County, Florida, over the removal of allegedly inappropriate books from school libraries.
