Citing First Amendment rights, federal judge blocks implementation of Act 372 (Updated)

by Michael Tilley ([email protected]) 2,090 views 

Editor’s note: Story updated with changes and additions throughout.

U.S. District Court Judge Timothy Brooks has granted a preliminary injunction against implementation of Act 372, a law that allows books to be removed or relocated in public libraries and would set criminal penalties for librarians. The law was set to go into effect Aug. 1.

Judge Brooks said Sections 1 and 5 of Act 372 likely violate First Amendment rights, and plaintiffs “will suffer irreparable harm if a preliminary injunction is not granted.” Brooks telegraphed his decision at the beginning of the 49-page ruling by including a line from “Fahrenheit 451,” a book written by Ray Bradbury, about a future in which all books are banned and “firemen” burn any books that are found.

“There is more than one way to burn a book. And the world is full of people running about with lit matches.”

The office of Attorney General Tim Griffin provided this statement: “We are reviewing the judge’s opinion and will continue to vigorously defend the law.”

John Adams, an attorney for some of the plaintiffs seeking to block Act 372, told Talk Business & Politics he was “obviously” pleased with the outcome because the goal was to show that an injunction was appropriate because Act 372 will likely fail a court challenge.

“While it’s in an early stage, it (Brooks’ ruling) shows the strength of our case that we were able to get this relief,” Adams said.

He also thanked his clients “who stepped up to challenge the law.”

Several Arkansas libraries, library associations, bookstore owners, and booksellers have sued Crawford County officials and state prosecuting attorneys in an effort to overturn Act 372, which is set to become law on Aug. 1.

Specifically, Act 372 creates a process for books to be challenged in public libraries, with library officials having the option to appeal the challenge with a local and/or city government. It also removes the exemption protecting librarians from criminal penalties if they are found to have knowingly provided certain materials to minors. Republicans who successfully pushed for Act 372 said the law was needed to protect minors from certain books, with many of the books mentioned being LGBTQ-related.

Plaintiffs in the lawsuit filed within the Fayetteville Division of the Western District Court of Arkansas include the Fayetteville Public Library, the Central Arkansas Library System, the Eureka Springs Carnegie Public Library, and the American Booksellers Association. Defendants listed include Crawford County Judge Chris Keith, members of the Crawford County Public Library Board, and all Arkansas prosecuting attorneys.

According to the filing, Act 372 limits access to constitutionally protected materials, violates constitutionally protected free speech, violates due process, and lacks a judicial review of decisions to ban or relocate library items.

Tuesday’s hearing before Judge Brooks focused on sections 1 and 5 of Act 372. Section 1 outlines the penalties if making certain books and materials available to minors, and Section 5 provides detail on the challenge procedure to remove or relocate books. Section 5 also requires all public libraries, including school libraries, to have a written policy for book selection and the challenge process.

During Tuesday’s hearing, Adams, an attorney with the Little Rock-based Fuqua Campbell law firm who represented the Fayetteville Public Library and several other plaintiffs, said the law should be blocked because it creates “prior restraint,” which is a violation of the First Amendment to the U.S. Constitution. Adams said the vague nature of Act 372 will cause librarians and others to self-censor in order not to risk criminal action.

Noah Watson, an attorney with the office of Arkansas Attorney General Tim Griffin, defended Act 372 during the hearing by saying the law does not cause prior restraint because no speech is stopped. He said the law is “just the second step” in determining what materials minors should not see in a public library. Watson also said the law is not out of bounds because state government already regulates local governments and has set a legal precedent for what material is available in a public library. He also said the courts have previously upheld “intermediate scrutiny” of materials available for minors.

In his ruling, Brooks included several pages about the history of U.S. public libraries – including the creation of many public libraries through the philanthropy of Andrew Carnegie – and the evolving responsibilities of librarians in communities. The history outlined by Brooks included the federal Library Services Act in 1956 that provided funding for public libraries and in doing so meant that “free access to knowledge became possible for all Americans, regardless of geography or wealth.”

Brooks noted that, like doctors and lawyers, librarians are afforded great deference in the mission to provide resources to all members of a community with a commitment to the “celebration of diverse viewpoints.”

“The vocation of a librarian requires a commitment to freedom of speech and the celebration of diverse viewpoints unlike that found in any other profession. The librarian curates the collection of reading materials for an entire community, and in doing so, he or she reinforces the bedrock principles on which this country was founded,” Brooks wrote. “According to the United States Supreme Court, ‘Public libraries pursue the worthy missions of facilitating learning and cultural enrichment.’ To fulfill those missions, ‘public libraries must have broad discretion to decide what material to provide to their patrons.’ Id. at 204. The librarian’s only enemy is the censor who judges contrary opinions to be dangerous, immoral, or wrong.”

The concept of “appropriateness,” a much-discussed topic during Tuesday’s hearing, was addressed in several sections by Brooks, with the judge not supporting many arguments made by Watson and other defendant attorneys. Brooks even called out the Arkansas Legislature on the issue.

“Perhaps any vagueness may be chalked up to the General Assembly’s haste to enact Act 372, but the lack of clarity seems to have been by design. After all, by keeping the pivotal terms vague, local governing bodies have greater flexibility to assess a given challenge however they please rather than how the Constitution dictates,” he noted.

Later, Brooks added: “Even if the Court put aside its concerns about vagueness, Section 5 unnecessarily imposes content-based restrictions on protected speech, thereby rendering this section of the law unconstitutional.”

Link here for a PDF of Brooks’ ruling.