Shipley, Inc. v. Long

454 F. Supp. 2d 819 (E.D. Ark. 2004)

On November 16, 2004, U.S. District Judge Eisele found the display provision unconstitutional, on the ground that the statute unconstitutionally restricted adults and older minors from access to First Amendment-protected materials.

In 2003, Arkansas amended its law to restrict the display and sale to minors of materials harmful to minors. The statute required that retailers segregate and obscure materials harmful to minors from public view.

On June 23, 2003, Media Coalition filed a lawsuit in the U.S. District Court of Arkansas on behalf of some of its members, local bookstores and libraries.  The Plaintiffs assert that the law unconstitutionally requires retailers and libraries to prevent all minors from accessing constitutionally protected materials that may be considered inappropriate for younger for younger minors.  By requiring plaintiffs physically to segregate such material, the statute unconstitutionally restricts adults and minors from access to materials protected by the First Amendment.

District Judge Garnett Thomas Eisele certified four questions to the Arkansas Supreme court for certification prior to issue his ruling: whether the statute would affect all minors or only the oldest minors; whether books and magazines that do not have harmful to minors materials displayed on the covers violate the statute if simply placed on bookshelves; whether by displaying such material does a retailer or librarian violate the provision of the statute that restricts allowing minors to view harmful to minors materials; and to clarify what retailers and librarians must do to segregate materials harmful to minors away from minors’ access.

In response to the four questions, the Arkansas Supreme Court interpreted broadly so that retaliers and librarians must keep books, magazines or other material that contains material harmful to minors in blinder racks and in a segregated area that is inaccessible to minors, even if there is no sexual content visible on the cover of the material. The material must be displayed in this manner if it inappropriate for a minor of any age.

Plaintiffs: Shipley, Inc. d/b/a That Bookstore in Blytheville; American Booksellers Foundation for Free Expression; Association of American Publishers, Inc.; Comic Book Legal Defense Fund; Freedom to Read Foundation, Inc.; International Periodical Distributors Association, Inc.; Arkansas Library Association; American Civil Liberties Union of Arkansas