Above: The Garland County Library in Hot Springs on August 7, 2024. The library’s executive director, Adam Webb, was one of 18 plaintiffs that challenged Arkansas’ Act 372 in federal court on First Amendment grounds. (Tess Vrbin/Arkansas Advocate)
Judge Timothy Brooks previously blocked the law in July 2023; Attorney General Tim Griffin plans to appeal the ruling
By Tess Vrbin, Arkansas Advocate
A federal judge on Monday permanently blocked portions of Arkansas’ law that would have changed how librarians handle challenged materials and given elected officials the final say over what books are available to the public.
U.S. District Judge Timothy Brooks of the Western District of Arkansas agreed with the 18 plaintiffs that two of the five sections of Act 372 of 2023 violate the First Amendment. The law would have altered libraries’ material reconsideration processes and created criminal liability for librarians who distribute content that some consider “obscene” or “harmful to minors.”
Brooks previously blocked the challenged sections on a temporary basis in July 2023, days before the law went into effect. He wrote in his 49-page ruling at the time that the challenged text was too vague and could lead to arbitrary interpretation and “content-based restrictions.”
He made the same points in Monday’s 37-page ruling, stating that the law did not provide specific enough criteria for compliance in order for librarians to avoid prosecution.
“The State has made no attempt to tailor Section 1 based on the Arkansas Supreme Court’s interpretation of ‘harmful to minors,’” Brooks wrote. “…Similarly, Section 5 contains multiple undefined terms that invite censorship decisions on the basis of content.”
He added that Arkansas law already forbade librarians from providing obscene materials to minors unless they were “acting within the scope of [their] regular employment duties.” A portion of Act 372 that was not challenged in court removed this exemption from state law.
“Up until the passage of Act 372, it appears that Arkansas’s more pressing concern with respect to librarians was that they be insulated from meritless claims and time-wasting prosecutions,” Brooks wrote. “Times have changed.”
Supporters of Act 372, both in public and in the Arkansas Legislature, said the policy is necessary to keep “pornographic” content out of children’s reach. Opponents of the law said it would be used to reduce access to content that reflects the general public, such as the LGBTQ+ community.
The 18 plaintiffs in the case included libraries, bookstores, advocacy groups and individual library patrons. The defendants were Arkansas’ 28 prosecuting attorneys, Crawford County and its county judge, Chris Keith.
The two Crawford County defendants, along with the county quorum court and library director, lost a separate First Amendment lawsuit in September. U.S. District Judge P.K. Holmes ruled in favor of three parents who claimed the Crawford County Library’s segregation of LGBTQ+ children’s books into separate “social sections” violated the First Amendment.
The case against Act 372 was initially scheduled for trial in October and later postponed to this month, but Brooks canceled the trial on Oct. 29. Both sides in the case previously petitioned the court for summary judgment, rendering a trial unnecessary for Brooks to make a decision.
Attorney General Tim Griffin plans to appeal the ruling, he said through a spokesperson Monday. The state argued in 2023 that the plaintiffs’ claims were “merely speculative or hypothetical,” claims with which Brooks disagreed.
Nate Coulter, a plaintiff in the case and the executive director of the Central Arkansas Library System, praised the ruling as a “significant milestone on a long, sometimes rocky road we were obligated to travel after the passage of Act 372.”
“This ruling by Judge Brooks affirms the values that CALS librarians and, I believe, most of our citizens hold dear — namely that our Constitution does not deputize city boards or quorum courts, or librarians like me for that matter — to be the agents of government censorship by allowing any of us to remove or restrict access to books when some people in our community find the content or ideas in those books objectionable,” Coulter said in a statement.
‘Harmful to minors’
Section 1 of Act 372 would have made “furnishing a harmful item to a minor” a Class A misdemeanor. The law did not clarify what “furnishes, presents, provides, [or] makes available” means in terms of what books are on library shelves and how they are displayed, Brooks said.
“While the State helpfully offers the dictionary definitions of these terms, those definitions provide no additional insight into the actions required of Plaintiffs to conform their conduct to the law,” he wrote. “If a book with some sexual content were placed on a shelf or otherwise displayed in the teen or adult section of the library or bookstore, the librarian or bookseller could reasonably be accused of ‘furnishing a harmful item to a minor’ if a younger minor could access it.”
A 2003 state law banned displays of reading material deemed “harmful to minors,” a phrase included in Act 372. Then-Gov. Mike Huckabee signed the 2003 law; his daughter, Gov. Sarah Huckabee Sanders, signed Act 372 about 20 years later.
The Arkansas Supreme Court struck down the previous law in 2004, partially basing the ruling on the fact that the law did not differentiate based on children’s ages. Brooks upheld this precedent in last year’s temporary injunction ruling and again on Monday.
“It follows that to avoid criminal prosecution, librarians and booksellers will have no other choice but to burden older minors’ and adults’ access to books that contain even a modicum of sexual content; they will be required to place such books in areas where younger minors cannot see or reach them, whether on high shelves or in locked rooms,” Brooks wrote Monday. “The State offers no legitimate governmental reason why such burdens on public access to speech are necessary or narrowly tailored to a particular purpose.”
The unconstitutional overreach of Act 372 “should not come as a surprise to its drafters” since the 2004 precedent meant “it was up to the General Assembly to write a narrowly tailored law [but] that did not happen,” Brooks wrote.
State Sen. Dan Sullivan, R-Jonesboro, was the law’s primary sponsor in 2023 and has said the Legislature should “eliminate all the funding for public libraries that have the American Library Association in their policy” in 2025. ALA’s Library Bill of Rights states that access to libraries should not be restricted based on a person’s age.
‘Appropriateness’ and elected officials’ authority
Section 5 of Act 372 would have required a committee of library staff, selected by head librarians and “representative of diverse viewpoints,” to be the first to review library materials challenged on the basis of “appropriateness.”
If a challenger disagreed with the library committee’s decision, city or county elected officials would have had the final say on where material is placed.
“Material subject to challenge is not limited to sexual content, and the law does not define ‘appropriateness’ at all,” Brooks wrote. “Instead, a book challenger may target any expression of ideas that he or she personally deems inappropriate.”
The section does not require a challenger to be a patron of the library in question or even a resident of Arkansas, Brooks wrote. Libraries often have these requirements in place, which Brooks called “reasonable limits.”
Act 372 did not pass the House Judiciary Committee in 2023 until it had been amended to say library materials would be relocated to an area inaccessible to minors, not removed from the premises, if elected officials find them to be “obscene.”
However, Section 5 provides libraries no guidance on creating an area that minors cannot access, and it does not limit challenges based on “appropriateness” for minors; instead, “any book geared for any age reader could be challenged,” Brooks wrote.
“Since anyone — whether an Arkansan or an out-of-state interest group— who is ‘affected’ by a book may raise a Section 5 challenge, libraries are likely to face exponentially more challenges than they do currently,” he wrote. “Book challenges now are resolved by professional librarians, but Section 5 challenges may be appealed to elected officials with discretion to decide whether a book is ‘appropriate’ without the benefit of procedural requirements or standards. They don’t even have to read the books first.”
As a result, local governments could allow “the views of a vocal few [to] dictate what is generally available to the public” and “decide on any basis they choose” whether to relocate or remove a book “without providing any justification to the public at large,” Brooks wrote.
Act 372 contains language creating a similar process as Section 5 pertaining to school libraries, giving school boards the final say on the location of a challenged book. This section of the law was not challenged in court and has been in effect since August 2023.
A Democrat-sponsored bill introduced in November for the 2025 legislative session would repeal the entirety of Act 372.
Crawford County
The Crawford County Library System moved children’s books with LGBTQ+ topics to segregated “social sections,” accessible only to adults, at all five branches between December 2022 and January 2023 after county residents objected to their availability at multiple quorum court meetings. County officials later cited Act 372 as a reason to keep the books segregated.
On Sept. 30, Holmes ordered the defendants to return the materials in the social sections to “appropriate sections in general circulation without consideration of … whether the viewpoints expressed in such materials are unpopular or controversial.”
The case was reassigned to Brooks on Oct. 15, and the defendants have not appealed Holmes’ ruling.
Twice, the defendants asked Brooks to dismiss them from the Act 372 lawsuit. Brooks denied the first motion, ruling that the county and Keith, the county judge, would be responsible for implementing Act 372 if it went into effect and if appeals of challenged material reached the county government.
He noted in Monday’s ruling that Keith “testified in his deposition [in the other case] 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.’”
“The Court is not picking on County Judge Keith here,” Brooks wrote in a footnote. “He is by no means the only county or city official who will have no clue what ‘appropriate’ means if Section 5 takes effect.”
The Crawford County Library System returned the segregated books to their original sections in October in compliance with Holmes’ ruling. The library and the quorum court have since been embroiled in a dispute over who will be responsible for the plaintiffs’ legal fees, the Arkansas Democrat-Gazette reported.
The Arkansas Advocate is a nonprofit, nonpartisan news organization dedicated to tough, fair daily reporting and investigative journalism that holds public officials accountable and focuses on the relationship between the lives of Arkansans and public policy.
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