Fayetteville Public Library et al v. Crawford County, Arkansas et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
FAYETTEVILLE PUBLIC LIBRARY, a political subdivision
in the City of Fayetteville, State of Arkansas;
EUREKA SPRINGS CARNEGIE PUBLIC LIBRARY;
CENTRAL ARKANSAS LIBRARY SYSTEM;
NATE COULTER; OLIVIA FARRELL; MIEL PARTAIN,
in her own capacity and as parent and next friend of
MADELINE PARTAIN; LETA CAPLINGER; ADAM WEBB;
ARKANSAS LIBRARY ASSOCIATION;
ADVOCATES FOR ALL ARKANSAS LIBRARIES;
PEARL’S BOOKS, LLC; WORDSWORTH COMMUNITY
BOOKSTORE, LLC d/b/a WORDSWORTH BOOKS;
AMERICAN BOOKSELLERS ASSOCIATION;
ASSOCIATION OF AMERICAN PUBLISHERS, INC.;
AUTHORS GUILD, INC.;
COMIC BOOK LEGAL DEFENSE FUND;
and FREEDOM TO READ FOUNDATION 	PLAINTIFFS
V. 	CASE NO. 5:23-CV-5086
CRAWFORD COUNTY, ARKANSAS; CHRIS KEITH,
in his official capacity as Crawford County Judge;
TODD MURRAY; SONIA FONTICIELLA; DEVON HOLDER;
MATT DURRETT; JEFF PHILLIPS; WILL JONES;
TERESA HOWELL; BEN HALE, CONNIE MITCHELL,
DAN TURNER, JANA BRADFORD; FRANK SPAIN;
TIM BLAIR; KYLE HUNTER; DANIEL SHUE; JEFF ROGERS;
DAVID ETHREDGE; TOM TATUM, II; DREW SMITH;
REBECCA REED MCCOY; MICHELLE C. LAWRENCE;
DEBRA BUSCHMAN; TONY ROGERS; NATHAN SMITH;
CAROL CREWS; KEVIN HOLMES; CHRIS WALTON;
and CHUCK GRAHAM, each in his or her official capacity
as a prosecuting attorney for the State of Arkansas 	DEFENDANT
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TABLE OF CONTENTS
I. 	LEGAL STANDARD ................................................................................................ 4
II. 	DISCUSSION ........................................................................................................... 5
A. 	Section 1: The Criminal Provision .................................................................. 5
1. 	Overview ................................................................................................. 5
2. 	Standing and Ripeness ........................................................................... 9
3. 	Constitutional Analysis .......................................................................... 12
i. Overbreadth ..................................................................................... 13
ii. Vagueness ...................................................................................... 21
B. 	Section 5: The Challenge Provision ............................................................. 22
1. 	Overview ............................................................................................... 22
2. 	Standing and Ripeness ......................................................................... 27
3. 	Constitutional Analysis .......................................................................... 31
i. Vagueness ....................................................................................... 31
ii. Content-based Restrictions ............................................................. 33
III. 	CONCLUSION ....................................................................................................... 37
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MEMORANDUM OPINION AND ORDER
On June 2, 2023, a coalition of public libraries, library organizations, professional
librarians, library patrons, booksellers, patrons of bookstores, booksellers’ associations,
and authors’ associations challenged the constitutionality of Sections 1 and 5 of Arkansas
Act 372. According to its title, Act 372 “amend[s] the law concerning libraries and obscene
materials; . . . create[s] the offense of furnishing a harmful item to a minor; and . . .
amend[s] the law concerning obscene materials loaned by a library.” See Doc. 75-1 (full
text of Act 372, cited herein as “Act 372 § ___”). Section 1 would impose a misdemeanor
penalty of up to one year in jail on librarians, booksellers, and others who make certain
media “available” to anyone under the age of eighteen. 1 Section 5 would mandate a new
procedure for libraries, city councils, and county quorum courts to follow when evaluating
a citizen’s request to move or remove a book from a public library’s permanent collection.
Plaintiffs sued two groups of defendants: Arkansas’s twenty-eight prosecuting
attorneys, who would enforce Section 1’s criminal penalty; and Crawford County,
Arkansas, one of several governmental bodies in the state that exerts fiscal and
regulatory control over a public library or libraries, along with Crawford County’s Chief
Executive, County Judge Chris Keith, who would be responsible for implementing
Section 5 in Crawford County. 2
1 Section 1 broadly targets books, magazines, motion pictures, photographs, articles, and
recordings. See Act 372 § 1(a)(4)(B)(i).
2 The Arkansas Attorney General represents the prosecutors and is defending both
sections of the challenged law. The Court will therefore refer to the prosecutors and
Attorney General’s office collectively as “the State,” and Crawford County and County
Judge Keith collectively as “the Crawford County Defendants.”
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Following full briefing on all the issues and an in-person hearing, the Court
preliminarily enjoined Sections 1 and 5 on July 29, 2023, three days before the law was
set to take effect. See Doc. 53 (“Preliminary Injunction Order”). None of the Defendants
took an interlocutory appeal, and the case proceeded to discovery, followed by dispositive
motion practice. Though approximately seventeen months have passed since the
Preliminary Injunction Order issued, nothing much has changed: Plaintiffs still have
standing to sue on ripe claims, and they have sued the correct parties; Sections 1 and 5
of the Act remain vaguely worded and susceptible to multiple meanings; Section 1
violates the due process rights of professional librarians and booksellers and the First
Amendment rights of library and bookstore patrons; and Section 5 empowers local
elected officials to censor library books they feel are not “appropriate” for citizens to read
and allows (if not encourages) content- and viewpoint-based restrictions on protected
speech without any compelling governmental purpose.
Before the Court are the parties’ ripe cross-motions for summary judgment. See
Docs. 90, 93, 99. The parties are in agreement that no genuine, material disputes of fact
exist and that the Court may enter judgment as a matter of law. Accordingly, and for the
reasons explained below, Plaintiffs’ Motion for Summary Judgment is GRANTED, and
Defendants’ 	Motions 	for 	Summary 	Judgment 	are 	DENIED. 	Defendants 	are
PERMANENTLY ENJOINED from enforcing Sections 1 and 5 of Act 372.
I. 	LEGAL STANDARD
A party moving for summary judgment must establish the absence of a genuine
dispute of material fact and its entitlement to judgment as a matter of law. See Fed. R.
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Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87
(1986); Nat’l Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th
Cir. 1999). The same standard applies where, as here, the parties have filed cross-
motions for summary judgment. When there exists no genuine issue as to any material
fact, “summary judgment is a useful tool whereby needless trials may be avoided, and it
should not be withheld in an appropriate case.” United States v. Porter, 581 F.2d 698,
703 (8th Cir. 1978). Each motion should be reviewed in its own right, however, with each
side “entitled to the benefit of all inferences favorable to them which might reasonably be
drawn from the record.” Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir.
1983); see also Canada v. Union Elec. Co., 135 F.3d 1211, 1212–13 (8th Cir. 1998).
II. 	DISCUSSION
A. Section 1: The Criminal Provision
1. 	Overview
The stated purpose of Section 1 is to define a new Class A misdemeanor offense
called “furnishing a harmful item to a minor.” One is guilty of this crime “if, knowing the
character of the item involved, the person knowingly . . . [f]urnishes, presents, provides,
makes available, gives, lends, shows, advertises, or distributes to a minor an item that is
harmful to minors.” Act 372 § 1(b)(1).
The terms “minor” and “harmful to minors” are separately defined in Arkansas’s
variable obscenity statute, found at Title 5, Chapter 68 of the criminal code. A minor is
“any person under eighteen (18) years of age.” Ark. Code Ann. § 5-68-501(7). The term
“harmful to minors,” which incorporates the Supreme Court’s approved definition of
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“obscenity,” means:
any description, exhibition, presentation, or representation, in whatever
form, of nudity, sexual conduct, sexual excitement, or sadomasochistic
abuse, when the material or performance, taken as a whole, has the
following characteristics:
(A) The average person eighteen (18) years of age or older applying
contemporary community standards would find that the material
or performance has a predominant tendency to appeal to a
prurient interest in sex to minors;
(B) The average person eighteen (18) years of age or older applying
contemporary community standards would find that the material
or performance depicts or describes nudity, sexual conduct,
sexual excitement, or sadomasochistic abuse in a manner that is
patently offensive to prevailing standards in the adult community
with respect to what is suitable for minors; and
(C) The material or performance lacks serious literary, scientific,
medical, artistic, or political value for minors.
Ark. Code Ann. § 5-68-501(2).
Prior to Act 372, it was already illegal in Arkansas to provide obscene materials to
minors, but librarians were granted special immunity from prosecution if they were “acting
within the scope of [their] regular employment duties.” See Ark. Code Ann. § 5-68-308(c)
(2020). Such immunity had not been questioned for nearly forty years. See 4000 Asher,
Inc. v. State, 290 Ark. 8, 13 (1986) (declaring the immunity statute “reasonable on its
face”). 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. Times have changed.
Plaintiffs contend that Section 1 of Act 372 is unconstitutional on its face because
it is overbroad and certain terms are too vague to be reasonably understood, which will
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lead 	to 	arbitrary 	enforcement. 	A 	law 	is 	overbroad 	and 	facially 	invalid 	when 	“the
impermissible applications of the law are substantial when judged in relation to the
statute’s plainly legitimate sweep.” Snider v. City of Cape Girardeau, 752 F.3d 1149, 1157
(8th Cir. 2014) (citing Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). The librarian
and bookseller Plaintiffs fear that the term “harmful to minors” could be interpreted broadly
to apply to a great number of works, including ones that would be acceptable for adults
and older minors to view.
Further, they worry that Section 1 does not clearly define what it means to
“present,” “show,” or “make[ ] available” a certain book. Act 372, § 1(b)(1). They ask
whether a librarian could face criminal penalties by displaying a book containing sexual
content in the teen or adult section of the library if a younger minor could also visit that
section—either accompanied or unaccompanied by an adult—and see or handle the
book. 3 A court may declare a law void-for-vagueness if it “forbids or requires the doing of
an act in terms so vague that persons of common intelligence must necessarily guess at
its meaning and differ as to its application” or if it enables “arbitrary and discriminatory
enforcement” by “impermissibly delegat[ing] basic policy matters to [government officials]
for resolution on an ad hoc and subjective basis.” Stephenson v. Davenport Cmty. Sch.
Dist., 110 F.3d 1303, 1308 (8th Cir. 1997) (internal citations and quotations omitted).
The librarian and bookseller Plaintiffs fear they could be prosecuted under
3 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.
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Section 1 because there are currently books and other materials on library and bookstore
shelves 	that 	could 	be 	deemed 	“harmful” 	to 	younger 	minors 	and 	are 	conceivably
“available” for younger minors to view. Plaintiffs claim their options for removing the threat
of criminal liability—which involve excluding children from libraries and bookstores or
segregating books into adults-only rooms—are logistically and financially untenable and
contrary to the core purpose of public libraries and community bookstores.
In response to Plaintiffs’ overbreadth argument, the State contends that Section 1
is constitutional because it is identical in all material respects to a criminal ordinance the
Eighth Circuit approved in a case called Upper Midwest Booksellers Ass’n v. City of
Minneapolis, 780 F.2d 1389 (8th Cir. 1985). Next, the State argues that even if Section 1
unconstitutionally restricts older minors’ access to certain reading materials, the law
should be deemed constitutional as to younger minors and adults, who collectively
outnumber older minors and render the legitimate sweep of Section 1 more substantial
than its overbreadth. Lastly, the State disagrees with Plaintiffs that lumping all minors
together into a class, regardless of age or developmental maturity, is problematic and will
violate older minors’ constitutional right to access books that are not harmful to them.
After all, the State notes, “laws often treat minors as a class,” and writing a more tailored
law 	that 	does 	not 	overly 	burden 	the 	First 	Amendment 	rights 	of 	older 	and/or
developmentally mature minors would be too daunting a task for the legislature. (Doc.
107, p. 13).
With respect to Plaintiffs’ void-for-vagueness argument, the State offers a five-
sentence response that claims without explanation that the challenged terms are
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“ordinary terms that people use and understand every day” and are not vague at all. See
id. at p. 15. The State also encourages librarians and booksellers to take comfort in the
fact 	that 	prosecutors 	will 	do 	nothing 	more 	than 	apply 	“contemporary 	community
standards” when assessing whether a book is “harmful to minors”—which should quell
their fears of arbitrary prosecution. See id. at p. 13.
2. 	Standing and Ripeness
At the preliminary-injunction phase of these proceedings, the Court found that at
least one plaintiff had standing to challenge the constitutionality of Sections 1 and 5 of
Act 372 and that such challenges were ripe. See Doc. 53, pp. 19–24. The State, however,
raises standing and ripeness again on summary judgment, arguing that Plaintiffs have
failed to show that their injuries are more than speculative in nature. The State contends
there is “no guarantee that the Plaintiffs will be prosecuted” under Section 1 based on
making available any particular book or books that currently exist on the shelves of
Arkansas’s public libraries or bookstores. (Doc. 95, p. 11). These arguments fail to
appreciate the nature of Plaintiffs’ facial challenge to Section 1; “[w]hether a plaintiff has
shown . . . an injury often turns on the nature and source of the claim asserted.” L.H. v.
Indep. Sch. Dist., 111 F.4th 886, 893 (8th Cir. 2024) (citation omitted and cleaned up).
On 	a basic 	level, 	standing 	requires 	an 	injury 	in 	fact 	that 	is concrete 	and
particularized and actual or imminent; in addition, such injury must be “fairly . . . traceable
to the challenged action of the defendant[s],” and “it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560–61 (1992) (cleaned up). Recently, the Eighth Circuit
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characterized the standing requirement for a First Amendment injury as “a forgiving
standard, satisfied so long as the plaintiff’s ‘intended future conduct is arguably . . .
proscribed by the statute it wishes to challenge.’” L.H., 111 F.4th at 893 (quoting Turtle
Island Foods, SPC v. Thompson, 992 F.3d 694, 699 (8th Cir. 2021)).
Here, the librarian and bookstore Plaintiffs argue—and the State agrees, see Doc.
95, pp. 19–20—that prosecutors could reasonably interpret the terms “present” or “make
available” in Section 1(b)(1) to mean “make accessible.” 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. 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. 	The vague
and undefined terms in Section 1 thus subject the librarian and bookstore Plaintiffs to a
credible fear of prosecution, as they are uncertain what lengths they must go to in order
to comply with the law. 4
4 The library and bookseller Plaintiffs and the associational Plaintiffs representing those
entities have provided uncontroverted testimony regarding the hundreds of books
displayed in their collections and inventories that are likely to subject librarians and
booksellers to prosecution under Section 1 because they merely discuss sex. See Doc.
113, p. 6 n.7 (collecting Plaintiff testimony). And Plaintiffs who are adult patrons and
mature-teenager patrons of public libraries and bookstores have provided undisputed
testimony that they are interested in reading books that contain at least some sexual
content, which, in the Arkansas Supreme Court’s view, see Shipley, Inc. v. Long, 359 Ark.
208, 219 (2004), would qualify as material that is “harmful” to younger, less mature
minors. See, e.g., Doc. 99-19, pp. 14–15 (Caplinger Depo.); Doc. 99-20, p. 12 (Madeline
Partain Depo.); Doc. 99-21, p. 15 (Miel Partain Depo.).
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The 	Court 	observes 	that 	in 	a 	factually 	similar 	case, 	Virginia 	v. 	American
Booksellers Ass’n, the Supreme Court held that booksellers in Virginia had standing to
sue the Commonwealth to enjoin a law that would criminalize the commercial display of
materials deemed “harmful to juveniles.” 484 U.S. 383, 393 (1988). The Court was “not
troubled by the pre-enforcement nature” of the suit’s facial challenge. Id. at 387. Virginia’s
definition of “harmful to juveniles” was almost identical to Arkansas’s definition of “harmful
to minors”: both statutes refer to books considered obscene to those under the age of
eighteen. Compare id. at 387 n.2 (quoting Virginia statute defining “harmful to juveniles”),
with Ark. Code Ann. § 5-68-501(2) (Arkansas criminal code definition of “harmful to
minors”).
The Virginia Court held that the booksellers who were subject to the law’s criminal
penalties had standing to sue because, “if their interpretation of the statute [was] correct,
[they would] have to take significant and costly compliance measures or risk criminal
prosecution.” 484 U.S. at 392; see also Holder v. Humanitarian L. Project, 561 U.S. 1, 15
(2010) (finding plaintiffs were not required to “await and undergo a criminal prosecution
as the sole means of seeking relief”). Accordingly, this Court finds that the librarian and
bookseller Plaintiffs have standing in the instant case—as the booksellers did in the
Virginia case—because “[t]he State has not suggested that the newly enacted law will not
be enforced . . . [and] plaintiffs have alleged an actual and well-founded fear that the law
will be enforced against them.” 484 U.S. at 393.
As for the Plaintiffs who are patrons of libraries and bookstores, the Court finds
they also have standing to sue on their ripe, non-speculative claims of injury attributable
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to Section 1. The Arkansas Supreme Court interpreted the term “harmful to minors” to
mean “materials that would arguably be ‘harmful’ to [younger minors], even though not
‘harmful’ to an older child.” Shipley, Inc. v. Long, 359 Ark. 208, 219 (2004). 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. The State offers no
legitimate governmental reason why such burdens on public access to speech are
necessary or narrowly tailored to a particular purpose.
In sum, multiple Plaintiffs have standing to challenge Section 1—though only one
plaintiff is necessary. 5 See Horne v. Flores, 557 U.S. 433, 446–47 (2009).
3. 	Constitutional Analysis
The Court finds that Section 1 of Act 372 is unconstitutional for two reasons. First,
it is overbroad because it regulates substantially more speech than the Constitution
allows and therefore violates the First Amendment rights of Arkansans. Second, its terms
5 These Plaintiffs include:
• 	booksellers Pearl’s Books, LLC, and Wordsworth Community Bookstore, LLC,
d/b/a/ WordsWorth Books;
• 	librarians Nate Coulter and Adam Webb;
• 	the American Booksellers Association as representative of its Arkansas bookseller
members;
• 	the Arkansas Library Association, Advocates for All Arkansas Libraries, the Comic
Book 	Legal 	Defense 	Fund, 	and 	the 	Freedom 	to 	Read 	Foundation, 	as
representatives of their Arkansas librarian members 5 ; and
• 	library patrons Olivia Farrell, Miel Partain (individually and as next-friend of her
minor daughter Madeline Partain), and Leta Caplinger.
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are so vague that they fail to provide librarians and booksellers with adequate notice of
what conduct is prohibited, thus violating their due process rights.
i. Overbreadth
A law is unconstitutionally overbroad and facially invalid when it “reaches a
substantial amount of constitutionally protected conduct.” Vill. of Hoffman Ests. v. Flipside,
Hoffman Ests., Inc., 455 U.S. 489, 494 (1982). The overbreadth doctrine thus forbids
restrictions on speech where “a substantial amount of protected speech is prohibited or
chilled in the process.” Ashcroft v. Free Speech Coal., 535 U.S. 234, 237 (2002). “[T]here
must be a realistic danger that the statute itself will significantly compromise recognized
First Amendment protections of parties not before the Court for it to be facially challenged
on overbreadth grounds.” Members of City Council v. Taxpayers for Vincent, 466 U.S.
789, 801 (1984).
Section 1 makes it a crime to “knowingly . . . furnish[ ], present[ ], provide[ ], make[ ]
available, give[ ], lend[ ], show[ ], advertise[ ], or distribute to a minor an item that is harmful
to minors.” Act 372 § 1(b)(1). Key to the statute’s interpretation and enforcement is what
“harmful to minors” means. This term is defined in Arkansas’s criminal code. See Ark.
Code Ann. § 5-68-501(2). As the State points out in its briefing, Arkansas’s definition
tracks the Supreme Court’s approved definition of obscenity for minors, taken from Miller
v. California, 413 U.S. 15, 24 (1973), and Ginsberg v. New York, 390 U.S. 629, 633 (1968).
However, Section 1 does not distinguish between minors of different ages and instead
aggregates them into a single category: “minors.”
About twenty years ago, the Arkansas legislature tried and failed to pass a statute
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that was very similar to Section 1, and a federal district court deemed it unconstitutional.
In 2003, the General Assembly passed Act 858, which amended Arkansas Code § 5-68-
502(1) to make it a crime to “display material which is harmful to minors in such a way
that minors, as part of the invited general public, will be exposed to view such material”
and also to “[s]ell, furnish, present, distribute, allow to view, or otherwise disseminate to
a minor, with or without consideration, any material which is harmful to minors.” When
Arkansas 	bookstore 	owners, 	booksellers’ 	associations, 	librarians, 	and 	publishers
challenged the law’s constitutionality, the Honorable G. Thomas Eisele, United States
District Judge for the Eastern District of Arkansas, certified certain questions of statutory
interpretation—in particular, 	the definition 	of “harmful to minors”—to the Arkansas
Supreme Court. See Shipley, Inc. v. Long, 454 F. Supp. 2d 819, 820 (E.D. Ark. 2004).
Judge Eisele modeled his request after one that the U.S. Supreme Court had sent
to the Virginia Supreme Court in a factually similar case. In 1985, Virginia’s legislature
passed a variable obscenity law that made it unlawful to knowingly display sexually
explicit materials considered “harmful to juveniles” in a manner in which “juveniles may
examine and peruse.” Am. Booksellers Ass’n, Inc. v. Virginia, 792 F.2d 1261, 1263 (4th
Cir. 1986). The district court for the Eastern District of Virginia permanently enjoined the
law, and the Commonwealth appealed the decision to the Fourth Circuit, which affirmed.
Id. at 1262–63. In the Fourth Circuit’s view, Virginia’s law was no mere time/place/manner
restriction 	on 	speech; 	instead, 	it 	“impose[d] 	restrictions 	based 	on 	the 	content 	of
publications.” Id. at 1265. The Fourth Circuit also declined to credit the Commonwealth’s
assertion that “only a small percentage of the inventory in bookstores could be classified
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as harmful to juveniles.” Id. The court worried that “an older minor’s first amendment rights
[could] be limited by the standards applicable to younger juveniles” once the law was
enforced. Id. at 1264 n.7. In other words, the Fourth Circuit did not assume that the only
material subject to Virginia’s regulation was the kind of pornographic material that would
be considered “harmful” to the oldest of minors and therefore harmful to all minors as a
class. 	Since 	Virginia’s 	law 	unduly 	burdened 	both 	adults’ 	and 	older 	minors’ 	First
Amendment rights to access speech, it was struck down as a content-based, overbroad
regulation.
The Commonwealth appealed once again to the U.S. Supreme Court, which
accepted certiorari—ostensibly to resolve a circuit split. See Virginia v. Am. Booksellers,
Inc., 484 U.S. 383 (1988). By the time the Supreme Court became involved, the Fourth,
Eighth, and Tenth Circuits had all analyzed similar statutes restricting the display of
materials considered obscene as to minors and had come to different conclusions. The
Eighth and Tenth Circuits approved the laws they were asked to review, while the Fourth
Circuit struck down its law down as unconstitutional.
In the Eighth Circuit case, Upper Midwest Booksellers Ass’n v. City of Minneapolis,
the plaintiff challenged a Minneapolis ordinance regulating how material that was “harmful
to minors” was to be displayed for sale. 780 F.2d 1389, 1390 (8th Cir. 1985). The
ordinance directed booksellers to place an opaque cover on any material whose “cover,
covers, or packaging, standing alone, [was] harmful to minors.” Id. None of the material
would have been obscene to adults; the law “merely regulate[d] the manner of display of
materials harmful to minors. It d[id] not forbid the display of such materials and d[id] not
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limit their sale to adults.” Id. at 1394 (emphasis added).
After balancing the relative burden the statute would impose on adult access to
speech, the Eighth Circuit found the Minneapolis ordinance constitutional, noting that its
definition of “harmful to minors” tracked the definition approved by the Supreme Court in
Ginsberg and Miller, and the law’s “sealed wrapper provision” imposed only a minimal
burden on adults’ ability to thumb through restricted materials before purchase. Id. at
1395. Unlike the bookseller plaintiffs in the Virginia case, the Upper Midwest plaintiff never
raised—and thus the court did not consider—the argument that some materials implicated
by the Minneapolis ordinance might be “harmful” to younger minors but not to older
minors—and thereby infringe older minors’ First Amendment rights. This concern did not
seem to be on the Eighth Circuit’s radar. In fact, the court observed that “any material
covered by the Minneapolis ordinance [was] likely to be on the borderline between
pornography and artistic expression,” which implies the court was only considering the
display of materials that would be harmful to all minors, including older minors, such as
pornography. Id. at 1396.
A couple of years prior to the decision in Upper Midwest, the Tenth Circuit approved
the constitutionality of a similar ordinance proscribing the display in bookstores of material
that was obscene as to minors. See M.S. News v. Casado, 721 F.2d 1281, 1288 (10th
Cir. 1983). That ordinance stated that a bookstore could comply with the law by placing
the offensive material behind blinder racks, “so that the lower two-thirds of the material
[was] not exposed to view.” Id. at 1287. The Tenth Circuit also appears to have assumed
without discussion that the materials subject to the ordinance would be “harmful” to older
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and younger minors alike and, thus, harmful to all minors as a class. The court analogized
the statute at issue to the one described in Ginsberg, which “proscribe[d] the sale of ‘girlie
magazines’ to minors.” Id. at 1286.
Returning to the Supreme Court’s decision in Virginia, the question of what
“harmful to juveniles” meant was the deciding factor in assessing the constitutionality of
the subject statute. Even though the Commonwealth’s Attorney General “argue[d] that the
statute’s coverage [was] much narrower than plaintiffs allege[d]” and would cover “only a
very few ‘borderline’ obscene works,” that explanation was not good enough for the high
Court, which noted that the Virginia Attorney General’s interpretation of the law “[did] not
bind the state courts or local law enforcement authorities” and was not “authoritative.”
Virginia, 484 U.S. at 394, 395.
The U.S. Supreme Court therefore asked the Virginia Supreme Court, “[W]hat
general standard should be used to determine the statute’s reach in light of juveniles’
differing ages and levels of maturity[?]” Id. at 395. The Virginia Supreme Court responded
that “harmful to juveniles” meant only those books deemed obscene to older minors. See
Virginia v. Am. Booksellers Ass’n, Inc., 372 S.E.2d 618, 623 (Va. 1988) (“A book will pass
statutory muster . . . if it has serious value for a legitimate minority of juveniles, and in this
context, a legitimate minority may consist of older, normal (not deviant) adolescents.”).
Upon receipt of the certified answers to the Court’s questions, the Fourth Circuit’s opinion
was vacated and remanded. See Virginia v. Am. Booksellers Ass’n, Inc., 488 U.S. 905
(1988). Now that the universe of possible “harmful” materials was considerably narrowed,
Virginia’s statute was constitutional because it imposed only “a minimal burden on
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booksellers and represent[ed] a constitutionally permissive exercise of the state’s police
powers.” Am. Booksellers Ass’n, Inc. v. Virginia, 882 F.2d 125, 127– 28 (4th Cir. 1989),
cert. denied, 494 U.S. 1056 (1990).
In the case at bar, there is no doubt that Section 1 is overbroad because the
Arkansas Supreme Court’s definition of “harmful to minors” is the opposite of the Virginia
Supreme Court’s. In response to the federal district court’s certified questions in Shipley,
Arkansas’s highest court explicitly rejected Virginia’s “narrow[ ]” interpretation of “harmful
to minors” and reasoned that a broad interpretation—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, 359 Ark. 208, 219 (2004).
Turning back to the case at bar, this Court finds that the Arkansas Supreme Court’s
responses to the certified questions in Shipley bind the interpretation of Act 372. In so
finding, the Court disagrees with the State’s assertion that the Eighth Circuit’s decision in
Upper Midwest “control[s] here.” (Doc. 95, p. 18). First, the Upper Midwest court did not
consider whether the term “harmful to minors,” if construed broadly to include that which
was harmful to the youngest minors, would impermissibly burden speech for older minors
and adults. Instead, the court and its parties assumed that the ordinance at issue
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regulated what amounted to pornography, which is, of course, obscene as to all minors.
Second, the ordinance in Upper Midwest only applied to bookstores, whereas Section 1
applies to bookstores and public libraries and therefore affects much more protected
speech. Third, the ordinance in Upper Midwest gave clear direction to booksellers about
how to comply with the law, whereas Section 1 is devoid of any such guidance. Fourth,
the U.S. Supreme Court decided the Virginia case after Upper Midwest and considered
new questions of overbreadth that Virginia’s law prompted. The U.S. Supreme Court
decided that resolving those questions required certifying them to Virginia’s highest court.
Fifth, after the Virginia case, the Eastern District of Arkansas considered the same
overbreadth questions that had been raised in Virginia—but not in Upper Midwest—and
certified questions of statutory interpretation to Arkansas’s highest court.6
Though the State would rather this Court ignore what happened after Upper
Midwest, that bell cannot be unrung. Section 1, which incorporates the “harmful to minors”
definition that was at issue in Shipley, is as overbroad and unconstitutional now as it was
when Judge Eisele found it so. See Shipley, 454 F. Supp. 2d at 831.
Mindful of the Arkansas Supreme Court’s broad interpretation of “harmful to
minors,” the legislature could have written a definition in Act 372 that hewed more closely
to the approved restriction in Virginia—but it did not; the legislature simply incorporated
the definition of “harmful to minors” from the criminal code without adornment or
qualification. Since this term has been construed broadly by the Arkansas Supreme Court
6 Judge Eisele did the right thing. The U.S. Supreme Court held that “it [was] essential” to
“have the benefit of the law's authoritative construction from the [state’s highest court]”
before the facial overbreadth challenge could be decided. Virginia, 484 U.S. at 395.
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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. After all, the U.S.
Supreme Court in Virginia advised that a “broader reading” of harmful to minors “would
raise correspondingly greater First Amendment questions.” 484 U.S. at 395.
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
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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.
ii. Vagueness
For related reasons, Section 1 is unconstitutional due to the presence of vague
terms. A law must sufficiently define terms so “that ordinary people can understand what
conduct is prohibited.” United States v. Washam, 312 F.3d 926, 930 (8th Cir. 2002).
Otherwise, those who attempt to interpret and comply with the law will “necessarily guess
at its meaning and differ as to its application.” Stephenson, 110 F.3d at 1308 (citations
and 	quotations 	omitted). 	Such 	vagueness 	leads 	to 	“arbitrary 	and 	discriminatory
enforcement” by “impermissibly delegat[ing] basic policy matters to [government officials]
for resolution on an ad hoc and subjective basis.” Id.
Where “the literal scope of the . . . regulation is capable of reaching expression
sheltered by the First Amendment, the [vagueness] doctrine demands a greater degree
of specificity than in other contexts.” Id. at 1308–09 (quotations and citations omitted);
see also Reno v. ACLU, 521 U.S. 844, 871–72 (1997) (with regard to a “content-based
regulation 	of 	speech[,] 	[t]he 	vagueness 	of 	such 	a 	regulation 	raises 	special 	First
Amendment concerns because of its obvious chilling effect on free speech”). “[T]he failure
to define the pivotal term of a regulation can render it fatally vague,” particularly where
the tools that courts regularly use to interpret imprecise terms, such as “the common
usage 	of 	statutory 	language, 	judicial 	explanations 	of 	its 	meaning, 	and 	previous
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applications of the statute to the same or similar conduct,” fail to provide necessary clarity.
Stephenson, 110 F.3d at 1309.
As the Court noted in its Preliminary Injunction Order, Section 1’s use of “present,”
“make[ ] available,” and “show” leaves librarians and booksellers unsure about whether
shelving books they know contain sexual content may subject them to criminal liability.
As for Section 1’s “knowledge requirement,” which the State believes reduces any
potential for vagueness, see Doc. 95, p. 19, the fact is that Section 1 provides no clarity
on what affirmative steps a bookseller or librarian must take to avoid a violation. The law’s
knowledge requirement could be met if a librarian or bookseller knew: (1) that a particular
book in the adult section contained sexual content and (2) that minors were not banned
from the premises. Such knowledge is not enough to cure the vagueness.
Furthermore, Section 1 remains unconstitutionally vague even if one could imagine
“some conduct that clearly falls within the provision’s grasp,” Johnson v. United States,
576 U.S. 591, 602 (2015), because the law’s undefined terms permit “arbitrary and
discriminatory enforcement,” Stephenson, 110 F.3d at 1308 (internal citations and
quotations omitted). For all these reasons, Section 1 is void for vagueness because it
would violate librarians’ and booksellers’ due process rights by subjecting them to criminal
prosecution without clearly defining the prohibited conduct.
B. Section 5: The Challenge Provision
1. 	Overview
Plaintiffs 	separately 	challenge 	Section 	5 	of 	the 	Act, 	which 	concerns 	the
“[e]stablishment of guidelines for selection, relocation, and retention of [library] materials.”
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Act 372 § 5. First, Section 5 mandates that “[e]ach county or municipal library shall have
a written policy for addressing challenged material that is physically present in the library
and available to the public.” Id. § 5(b). Many libraries already have such a policy in place,
but Section 5 establishes the minimum criteria that must be included.
Next, Section 5 explains that any “person affected by . . . material” in a library’s
collection may “challenge the appropriateness” of that material’s inclusion in the main
collection. Id. § 5(c)(1). Material subject to challenge is not limited to sexual content, and
the law does not define “appropriateness” at all. Instead, a book challenger may target
any expression of ideas that he or she personally deems inappropriate. Further, Section 5
does not require that the book challenger be a patron of the library where the challenge
is made. There is no Arkansas residency requirement either. All a challenger must do to
initiate the challenge process is meet with a librarian to discuss the grievance. Id.
§ 5(c)(3). The librarian must then provide a copy of the library’s written policy to the
challenger. Id. § 5(c)(4)(A). If the challenger is dissatisfied with the librarian’s response,
he or she must fill out a form supplied by the library to explain the nature of the grievance.
Id. § 5(c)(5). The library has discretion to decide whether to leave the book on the shelf
during the pendency of a challenge or remove it from the collection. Id. § 5(c)(2).
Once the challenger puts the grievance in writing, Section 5 states that it must be
forwarded to “a committee of library personnel” who have “knowledge appropriate for the
material being challenged” and possess “diverse viewpoints.” Id. § 5(c)(6). “The librarian
or 	his 	or 	her 	designee” 	may 	chair 	the 	committee. 	Id. 	Other 	than 	screening 	for
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“appropriateness,” Section 5 offers the library committee no evaluation criteria except the
following:
Material being challenged:
(i) 	Shall not be withdrawn solely for the viewpoints expressed within
the material; and
(ii) 	Shall be reviewed in its entirety and shall not have selected
portions taken out of context.
Id. § 5(c)(7)(B)(i)–(ii) (emphasis added). After the library committee meets with the
challenger, it then “vote[s] to determine whether the material being challenged shall be
relocated within the library’s collection to an area that is not accessible to minors under
the age of eighteen (18) years.” Id. § 5(c)(11)(A). However, Section 5 does not suggest
how a library would create an area “that is not accessible to minors.” And somewhat
confusingly, 	despite 	this 	provision, 	Section 	5 	is 	not 	limited 	to 	challenges 	for
appropriateness as to minors; as any book geared for any age reader could be
challenged.
After the library committee votes on the book challenge, it must send a written
summary of its decision to the challenger. If the committee segregates or “withdraw[s]”
the challenged material, the challenge ends there. But if the committee rejects the
challenge, Section 5 permits the challenger to “appeal the committee’s decision to the
governing body of the county or city” that financially supports the library “by filing a written
appeal to the executive head of the governing body of the county or city.” Id. at
§ 5(c)(12)(A).
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Governing bodies, i.e., quorum courts and city councils, are then afforded wide
latitude in reviewing the challenged material. They are only required to consider:
(1) the challenged material itself,
(2) the written challenge that was submitted to the library committee,
(3) the library committee’s written explanation for its decision, and, if submitted,
(4) the mayor’s or county judge’s recommendation.
Id. § 5(c)(12)(B)(i)–(ii). Section 5 does not require the quorum court or city council
members to adopt––or even be provided a copy of––the library’s selection criteria, nor
does it require them to read or consider the criteria. Id.
The quorum court or city council members meet to consider and vote on whether
to censor the challenged material, either by withdrawing it from the library’s main
collection or relocating it to another part of the library. Their decision is final, and Section 5
does not require the governing body to issue a written explanation for its decision. Id.
§ 5(c)(12)(C).
Plaintiffs argue that Section 5 is void for vagueness because librarians, library
patrons, members of local governmental bodies, and the public at large will have no
meaningful way to discern what sorts of materials are “appropriate,” as that undefined
term appears in Section 5, or what it means to “relocate[ ] [books] . . . to an area that is
not accessible to minors under the age of eighteen.” 7 In Plaintiffs’ view, the challenge
7 Would a sign suffice, or would books need to be moved onto high shelves or behind
solid partitions? Would libraries need to construct rooms with doors within their existing
buildings to securely house adult and young adult books that could possibly be viewed
as “harmful” to younger minors (even if younger minors would likely have no interest in
these books)? Would a staff member be required to monitor the restricted area? Would
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process will invite content-based restrictions on public access to library materials without
regard to the First and Fourteenth Amendments. And 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. 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.
Furthermore, library professionals have testified in this case that the expected
influx of challenges will overwhelm library staff, who have the option of withdrawing
challenged 	books from 	the shelves while 	they are under 	consideration. 	There is
undisputed record testimony that Section 5’s challenge process is likely to result in long
wait periods for patrons interested in reading challenged books.
The State responds that a book’s “appropriateness” need not be defined in
Section 5. Instead, the State encourages Plaintiffs to trust that the local governing bodies
evaluating book challenges will employ the same criteria that librarians and library
committees use, rather than invent their own criteria. After all, Section 5 does not explicitly
patrons’ driver’s licenses need to be checked prior to entry? These are reasonable
questions to ask, and each option comes with a steadily increasing price tag. Section 5
offers no guidance, which means the most restrictive of the options—which is also the
safest to avoid criminal prosecution under Section 1—is the one librarians are most likely
to implement, burdening the most speech. These restrictive options also go far beyond
anything 	the 	Eighth 	Circuit 	approved 	in 	Upper 	Midwest 	(wrapping 	pornographic
magazines in opaque covers) and the Tenth Circuit sanctioned in M.S. News (placing
pornography behind blinder racks).
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encourage local governing bodies to ban books or discriminate based on viewpoint, and
the State insists it is well within its authority to expand cities’ and counties’ power to shape
or control their public library collections.
2. 	Standing and Ripeness
The State contends that Plaintiffs’ injuries under Section 5 depend on “a five-step
hypothetical that supposedly establishes an injury in fact.” (Doc. 95, p. 11). According to
the State, the only injuries Section 5 could possibly inflict on patrons of public libraries
would flow from the written selection/challenge policies of the libraries themselves—which
is a problem for Plaintiffs because public libraries are not the defendants in this case.
However, this argument ignores the fact that under Section 5, it is the local quorum court
or city council that has the final, unappealable say as to the “appropriateness” of a
challenged library book already on the shelves, and Section 5 does not require the
reviewing governmental body to adopt or even be provided a copy of the library’s selection
criteria. See Act 372 § 5(c)(12)(B)(i)–(ii).
Moreover, 	by 	prescribing 	mandatory 	procedures 	for 	evaluating 	challenges,
Section 5 actually prevents libraries from relying on policies that many have successfully
used to be responsive to patron feedback, including negative feedback, without allowing
an overwhelming number of challenges or letting the views of a vocal few dictate what is
generally available to the public. See Doc. 99-6, ¶ 18 (Danos Decl.); Doc. 99-17, ¶¶ 27,
31 (Webb Decl.). That success is owed, in part, to the reasonable limits that libraries have
set on reconsideration requests, such as requiring that requesters have a current library
card and/or live in the library’s service area. See Doc. 99-17, pp. 34–38 (Garland County
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Library Materials Reconsideration Policy); Doc. 99-10, pp. 8–9 (Fayetteville Public Library
Reconsideration Policy). Section 5 prevents libraries from imposing such reasonable
limits. This leads the Court to conclude that Plaintiffs have a non-speculative fear that
even a small number of vocal activists will be able to use Section 5 to substantially
increase the volume of challenges to library materials.
Many libraries already have extensive written policies in place to guide the
acquisition and retention of library books. See, e.g., Docs. 93-2 (Central Arkansas Library
System Selection Criteria), 93-3 (Fayetteville Public Library Selection Criteria), 93-4
(Eureka Springs Carnegie Public Library Selection Criteria). They are guided by common,
overarching goals that are in line with the First Amendment.8 For example, the Central
Arkansas Library System states in its written policy that it strives “to provide a balanced
and broad collection of materials and resources in varied formats to enlighten, inform,
entertain, and empower the diverse community,” (Doc. 93-2, p. 1); Fayetteville Public
Library offers “a collection of materials that is diverse, inclusive, and protected by the First
Amendment of the United States Constitution and the Arkansas State Constitution,” (Doc.
93-3, p. 2); and Eureka Springs Library explicitly “subscribe[s] to the book selection
principles contained in the Library Bill of Rights adapted by the American Library
Association,” while recognizing “that many books are controversial and that any given
item may offend some patrons,” (Doc. 93-4, p. 1).
8 The Court previously described the American Library Association, the ALA’s Code of
Ethics and Library Bill of Rights, the training that professional librarians receive, and the
historical significance and mission of public libraries in America in the introductory section
of the Preliminary Injunction Order. See Doc. 53, pp. 6–12. For brevity, this discussion is
not included here, but it provides helpful context.
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But Section 5 hampers the ability of libraries to efficiently respond to frivolous,
repeated, or overbroad requests, which they expect to increase if the provision takes
effect. See Doc. 99-17, ¶ 30 (Webb Decl.). Section 5 requires library committees to
“review[ ] [challenged material] in its entirety,” Act 372 § 5(c)(7)(B), even if the work has
been previously challenged or is challenged for improper purposes. However, a similar
level of scrutiny is not required of elected officials at the next stage of the challenge
process, see id. § 5(c)(12).9 Further, the library committee’s knowledge that its decision
will be appealed to those tasked with funding decisions is not an insignificant factor and
is likely to chill even more protected speech. See Doc., 99-23, p. 14 (Keith Depo.)
(acknowledging that library staff is likely to “take into consideration” how the local
governing body will decide the appeal).
Importantly, once a challenge is appealed to the local governing body, Section 5
provides no criteria whatsoever to guide the censorship decision. Instead, elected officials
are free to decide on any basis they choose whether a challenged work should be
9 Not only will the unlimited challenges invited by Section 5 impose a crushing burden on
library staff, but there is at least a possibility, if not a likelihood, that librarians will
preemptively withdraw frequently challenged books from the collection while they are
under review, further chilling patron access to constitutionally protected speech. The
State admits in its summary judgment response brief that carefully reviewing multiple
challenged books would be a time-consuming and “unduly burdensome” affair. (Doc. 107,
p. 3). During discovery, Plaintiffs identified ninety-seven books they feared would be
challenged under Section 5 and asked the prosecutors to “read and evaluate” them “and
answer multiple interrogatories” over a short period of time. Id. at pp. 3–4. Once the State
objected, Plaintiffs sent a revised list of only twenty books to read in one business day;
needless to say, again the prosecutors balked, citing undue burden. See id. The State
does not appear to recognize that librarians across Arkansas would face the same sort
of burdens on their time and resources if Section 5 went into effect, as the record evidence
shows.
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relocated to a segregated section of the library or eliminated from the collection entirely,
without providing any justification to the public at large. See id. § 5(c)(7)(B)(i). The injury
that Section 5’s challenge procedure will visit upon patrons of Arkansas’s public libraries
is real and immediate. Section 5 removes final censorship decisions from public libraries
and the professionals who run them and places them into the hands of local governing
bodies whose members lack training and experience in these matters and are not
bounded by similar selection constraints.
There is one final piece of evidence to consider on the matter of standing—and it
is a compelling one. In December 2022, shortly before Act 372 was signed into law,
Crawford County’s quorum court threatened “to defund the Library if its director did not
find a way to satisfy constituents’ concerns about books” with LGBTQ themes. Virden v.
Crawford Cnty., Case No. 2:23-CV-2071, ECF 105, p. 3 (W.D. Ark. Sept. 30, 2024). These
books, and perhaps others with unpopular or controversial themes, were removed from
general circulation and placed in a separate section of the library. Id. On September 30,
2024, the Honorable P.K. Holmes, III, United States District Judge for the Western District
of Arkansas, enjoined Crawford County’s actions as unconstitutional and violative of the
library patrons’ First Amendment rights. See id. In so ruling, Judge Holmes observed that
“public libraries have an obligation not to stigmatize disfavored viewpoints that are already
in their collection.” Id. at p. 9. He ordered the books returned to general circulation. Id.
This Court remains satisfied that Crawford County library patrons Plaintiffs Miel
Partain (in her individual capacity and as next-friend of her minor daughter, Madeline
Partain) and Leta Caplinger have standing to sue the Crawford County Defendants to
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prevent enforcement of Section 5. Their injuries are not hypothetical, and their challenge
is ripe for judicial review. 10
3. 	Constitutional Analysis
i. Vagueness
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
10 County Defendants fail to confront the merits of Plaintiffs’ challenge to Section 5 on
summary judgment. Instead, their sole argument is that Plaintiffs lack standing to sue
them because their lawsuit seeks statewide relief from Section 5, which Crawford County
cannot provide. They suggest Plaintiffs should have sued the State of Arkansas (or
perhaps all the counties and cities in the State). This argument is easily dispensed with.
First, Crawford County Defendants cannot deny that the issuance of a permanent
injunction would provide the Plaintiffs–who are Crawford County library patrons–complete
relief with respect to their Section 5 injuries. See Pharm. Rsch. & Mfrs. of Am. v. Williams,
64 F.4th 932, 940 (8th Cir. 2023) (“[A] plaintiff satisfies the redressability requirement
when he shows that a favorable decision will relieve a discrete injury to himself. He need
not show that a favorable decision will relieve his every injury.” (quoting Larson v. Valente,
456 U.S. 228, 243 n.15 (1982))). Second, it is safe to assume that all counties and cities
across Arkansas “would abide by an authoritative interpretation of the [law] . . . even
though 	they 	would 	not 	be 	directly 	bound 	by 	such 	a 	determination.” 	Franklin v.
Massachusetts, 505 U.S. 788, 803 (1992).
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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.” Virden, Case No. 2:23-CV-2071, ECF 105, p. 5.
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.” Id. at p. 7. And County Judge Keith, who under Section 5 would be
required 	to 	“present” 	to the 	quorum 	court 	all 	books 	“being 	challenged,” 	Act 	372
§ 5(c)(12)(B)(i), 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,” (Doc. 99-23, p. 13).11
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.” 	Appropriate, The American Heritage Dictionary (New College Ed.
1976). 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.” See Act 372 § 5(c)(7)(B)(i). The law cautions
only that a book should not be withdrawn from the library’s shelves “solely for the
viewpoints 	expressed 	within 	the 	material.” 	Id. 	(emphasis 	added). 	Section 	5 	is
11 The Court is not picking on County Judge Keith here. He is by no means the only county
or city official who will have no clue what “appropriate” means if Section 5 takes effect.
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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.” Stephenson, 110 F.3d at
1310.
Other important terms in Section 5 are similarly vague. The statute uses both
“withdraw” and “relocate” with respect to challenged books. See id. §§ 5(c)(7)(B)(i),
(c)(11)(A). 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. Id. § 5(c)(11)(A). 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. Video Software Dealers Ass'n v. Webster, 968 F.2d 684, 689–90 (8th Cir. 1992).
ii. Content-based Restrictions
In 	addition 	to 	its 	vague 	terms, 	Section 	5 	is 	unconstitutional 	because 	it
unnecessarily imposes content-based restrictions on protected speech. 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
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material. 12 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.
“[L]aws that by their terms distinguish favored speech from disfavored speech on
the basis of the ideas or views expressed are content based,” and the courts “apply the
most exacting scrutiny to regulations that suppress, disadvantage, or impose differential
burdens on speech because of its content.” Turner Broadcasting Sys., Inc. v. F.C.C., 512
U.S. 622, 642–43 (1994). “Content-based laws—those that target speech based on its
communicative content—are presumptively unconstitutional and may be justified only if
the 	government 	proves 	that 	they 	are 	narrowly 	tailored 	to 	serve 	compelling 	state
interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
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. And even if the Court limited
12 It is important to note that even with respect to obscenity, the Supreme Court has not
suggested “that the question of the value of an allegedly obscene work is to be determined
by reference to community standards.” Pope v. Illinois, 481 U.S. 497, 499 (1987). A work’s
“value” is not subject to the artistic tastes, religious sensibilities, or “morality” of a given
community.
Just as the ideas a work represents need not obtain majority approval to
merit protection, neither, insofar as the First Amendment is concerned, does
the value of the work vary from community to community based on the
degree of local acceptance it has won. The proper inquiry is not whether an
ordinary member of any given community would find serious literary, artistic,
political, or scientific value in allegedly obscene material, but whether a
reasonable person would find such value in the material, taken as a whole.
Id. at 500–01.
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“appropriateness” to mean “harmful to minors,” this change would raise the same issues
discussed with respect to Section 1. In the context of a public library, the term “harmful to
minors” would sweep in materials that are constitutionally protected as to older minors
and adults and place unjustified burdens on their access.
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. See Doc. 107, pp. 16–17. 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. 13
“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
13 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.” GBLT Youth in Iowa Schs. v. Reynolds, 114 F.4th
660, 668 (8th Cir. 2024).
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thought . . . .” Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (emphasis added and
citation omitted). “[T]he State may not, consistently with the spirit of the First Amendment,
contract the spectrum of available knowledge.” Griswold, 381 U.S. at 482. 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. Erznoznik v. City of
Jacksonville, 422 U.S. 205, 212–13 (1975). 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.” Id. at 213–14. 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.” Reno, 521 U.S. at 875.
The Court therefore concludes that Plaintiffs have established as a matter of law
that Section 5 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. “If there is a bedrock principle underlying the First Amendment, it
is that the government may not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414
(1989). For the above reasons, Plaintiffs have prevailed on their claim that Section 5
works an unconstitutional content-based restriction on protected speech.
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III. 	CONCLUSION
As the Supreme Court has noted, “even a law with ‘a plainly legitimate sweep’ may
be struck down in its entirety,” provided that its “unconstitutional applications substantially
outweigh its constitutional ones.” Moody v. NetChoice, LLC, 603 U.S. 707, 723–24
(2024). Here, it is clear that there is no set of circumstances under which Sections 1 and
5 would be valid. The State has made no attempt to tailor Section 1 based on the
Arkansas Supreme Court’s interpretation of “harmful to minors,” though the State has
been on notice of the broad sweep of this definition since 2004. Similarly, Section 5
contains multiple undefined terms that invite censorship decisions on the basis of content.
Plaintiffs are therefore entitled to a declaratory judgment that Sections 1 and 5 of
Arkansas Act 372 are unconstitutional, void, and of no effect.
IT IS ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc. 99) is
GRANTED, and Defendants’ Motions for Summary Judgment (Docs. 90 & 93) are
DENIED. Defendants are PERMANENTLY ENJOINED from enforcing Sections 1 and 5
of Act 372.
Judgment will enter contemporaneously with this decision. If Plaintiffs wish to file
a motion for attorneys’ fees, they should do so by January 17, 2025.
IT IS SO ORDERED on this 23rd day of December, 2024.
_____________________________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE
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