In a highly anticipated decision, a federal judge in Arkansas has permanently struck down two key provisions of Arkansas’s controversial “harmful to minors” law, known as Act 372, finding the law to be unconstitutional.
If the Arkansas legislature’s goal 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,” judge Timothy Brooks wrote in a December 23 summary judgment ruling permanently striking down two key sections of the legislation, including a section that would have exposed librarians to jail time for making allegedly inappropriate materials accessible to minors. “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.”
The decision comes after Brooks issued a preliminary injunction blocking two key provisions of the law on July 29, 2023. In that lengthy opinion and order, judge Brooks initially concluded that portions of the law were "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."
Act 372 was signed by Governor Sarah Huckabee Sanders on March 30, 2023—one of several controversial book banning laws pushed in conservative-controlled legislatures under the guise of “parental control.” The architects of Act 372 claimed that the law was needed to keep “pornographic” material from children. But critics of the law insist that such claims were a fig leaf to justify going after constitutionally-protected diverse materials, such as books involving the LGBTQ+ community.
The law was quickly challenged by a library-led coalition of 18 plaintiffs, who filed suit on June 2. 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.
In his 2023 decision to preliminarily block two key provisions of the law, Brooks notably prefaced his 49-page opinion 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 Act 372’s shaky legal foundation, and questioned the law's aim.
“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?”
Brooks also shot down the state’s government speech argument, rejecting the idea that public libraries and librarians essentially function as state actors.
Though libraries 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 in his 2023 decision. “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.”
In a statement, Arkansas Attorney General Tim Griffin told the Associated Press the state will appeal the decision.
