Fayetteville Public Library v. Crawford County, Arkansas

Latest Action

On July 31, 2023, the U.S. District Court for the Western District of Arkansas granted a preliminary injunction that barred the implementation of two provisions of Arkansas Act 372.

In the opinion, Judge Timothy L. Brooks wrote:

“Complying with the Act would likely impose an unnecessary and unjustified burden on any older minor’s ability to access free library books appropriate to his or her age and reading level. It is also likely that adults browsing the shelves of bookstores and libraries with their minor children would be prohibited from accessing most reading materials appropriate for an adult… The breadth of this legislation and its restrictions on constitutionally protected speech are therefore unjustified.”

Summary

Members of Media Coalition, along with Arkansas booksellers, librarians, and others, have filed a challenge to an Arkansas law that restricts access to material in bookstores and libraries and in the process, violate the First Amendment rights of Arkansas readers.

The law makes it a crime for booksellers and librarians to make available or display to a minor any material that may be considered “harmful” to minors. A violation of this section of the law would put booksellers and librarians for up to a year in prison if they do not comply. A very similar law was previously struck down in Shipley v. Long, a lawsuit also brought by members of Media Coalition in 2004.

Under the new law, booksellers and librarians are left to choose between two drastic measures to avoid committing a crime. They can choose to exclude thousands of materials from their selection — including many classic literature, bestsellers, movies, and documentaries, thereby pushing their customers and patrons to find these materials elsewhere. Or they can choose to not allow minors inside the library or the bookstore, which would be antithetical to their mission of teaching and encouraging the enjoyment of reading among children to create a community of lifelong readers.

Another provision in the law would make it possible for any person in Arkansas to demand the removal of a book that the person deems inappropriate, limiting readers to one person’s opinion about what books should be in the library.

History

Arkansas enacts S.B. 81

On March 31, 2023, Arkansas Gov. Sarah Huckabee Sanders signed Senate Bill 81 into law, as Act 372. The law is scheduled to go into effect on August 1, 2023.

Section 1 bars libraries, booksellers, and any brick-and-mortar establishments from displaying or making available works that might be harmful to minors. Under this law, librarians, booksellers and others have to limit all readers to books appropriate for 5-year-olds or exclude all minor readers from their establishment.

Section 5 requires public libraries to establish a policy regarding the removal of material that a person may find “inappropriate.” Under this policy, any person can challenge whether a material should be available in the public library, and the library must convene a committee of employees to review such challenge. If the library committee does not remove the material, the person can then take their challenge to a local governing body that supports the library. The decision of this local governing body is final, and they are not required to provide an explanation of their decision. There is no means for anyone who disagrees that the material is “inappropriate” to present a counter to the challenge, either before the library committee or the local governing body, nor is there a recourse to get the material re-added to the library after the decision to remove it has been made.

Media Coalition files lawsuit

On June 2, 2023, Media Coalition brought a lawsuit on behalf of some of its members and Arkansas booksellers, librarians and others challenging the law. The complaint explains that Section 1 of the law imposes an unconstitutional prior restraint on material that is legal for adults and older minors; it is unconstitutionally overbroad; and it is unconstitutionally vague. The material would apply to books, magazines, movies, and any other material available from libraries or sold in a bookstore.

To comply with the law, booksellers and librarians would have to create a segregated “adults only” section and move a substantial amount of constitutionally-protected material because they may be “harmful” to any minor at any age. Of course, having an “adults only” section in a bookstore or a library carries a negative connotation that would discourage anyone from entering such section. As an alternative, booksellers and librarians can display or sell only material that is not “harmful” to any child, excluding thousands of titles from their offerings. Either option infringes on the First Amendment rights of adults and older minor to access, view and purchase books and other media.

The complaint also argues that Section 5 of the law also imposes an unconstitutional prior restraint on material that is legal for adults and older minors; it does not allow library patrons to seek judicial review of a restriction and allows local governing bodies to restrict books without an objective criteria or a record of their reasoning; and it is unconstitutionally vague.

The lawsuit asks for a preliminary injunction on Act 372.

The plaintiffs include five Media Coalition members: American Booksellers Association, Association of American Publishers, Authors Guild, Comic Book Legal Defense Fund, and Freedom to Read Foundation. The other plaintiffs are:

• Fayetteville Public Library
• WordsWorth Books in Little Rock
• Pearl’s Books in Fayetteville
• Eureka Springs Carnegie Public Library
• Central Arkansas Library System (CALS)
• Arkansas Library Association
• Advocates for All Arkansas Libraries
• Nate Coulter, executive director of the CALS
• Olivia Farrell, an adult resident of Little Rock, CALS patron, and WordsWorth Books customer
• Jennie Kirby, parent of Hayden Kirby, who is a 17-year-old resident of Little Rock and a CALS patron
• Leta Caplinger, an adult resident of Crawford County and patron of the Crawford County Library System
• Adam Webb, a librarian from Garland County

Section 1 of Act 372 is very similar to a previous Arkansas law that was struck down in Shipley v. Long, a lawsuit also brought by members of Media Coalition in 2004.

On July 13, 2023, the plaintiffs filed their reply brief in response to the two briefs from the defendants: one from the prosecuting attorneys, and another from defendants Crawford County and County Judge Chris Keith.

A hearing on the motion was held on July 25, 2023.