Prior restraint, and ‘appropriateness’ debated in hearing about pending Arkansas library law

by Michael Tilley ([email protected]) 837 views 

After an almost five-hour hearing, U.S. District Court Judge Timothy Brooks said Tuesday (July 25) he will decide on a preliminary injunction request seeking to block Act 372 – an Arkansas law allowing books in public libraries to be banned or relocated – by the end of this week.

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 pushed the bill in Arkansas’ recent legislative session have said the bill was needed to challenge books they have found in libraries that are inappropriate. Many of those books were 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.

John 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.

“If they don’t know what … will cause them to spend a year in jail, they’ll censor (themselves) to ensure they don’t go to jail,” Adams said during the hearing.

Adams said the 2004 decision by U.S. District Court Judge G. Thomas Eisele in the Shipley v. Long case is an example of the courts rejecting similar government actions. In that ruling, Judge Eisele said a display provision in a state law was unconstitutional because it restricted adults and older minors from access to First Amendment-protected materials.

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.

Watson also pushed back on claims Act 372 is vague, saying the law outlines clear rules and procedures that the courts can review, “and not hypotheticals” that plaintiffs are using to portray the law as something it is not. He also cited a “rational basis” for supporting Act 372, which suggests the government has a legitimate interest in First Amendment questions if the action is rational, non-arbitrary and content-neutral.

“Although Ginsberg clearly establishes rational-basis review as the appropriate level of scrutiny, the Plaintiffs urge the Court to apply strict scrutiny. The Plaintiffs are wrong. If the Court declines to apply Ginsberg, the highest level of scrutiny it can apply is intermediate scrutiny under the incidental-burden doctrine, which applies ‘when speech and nonspeech elements are combined in the same course of conduct and the government seeks to neutrally regulate the non-speech element.’ Telescope Media Grp. v. Lucero, 936 F.3d 740, 756 (8th Cir. 2019). Here, the Obscenity Section regulates conduct – furnishing obscenity to minors – not speech,” noted a filing from Attorney General Griffin’s office.

Attorneys defending Act 372 also pointed to a 1985 ruling by the Eighth Circuit of the United States Court of Appeals in the matter of Upper Midwest Booksellers v. City of Minneapolis. The panel in that case said the city ordinance requiring sealed, opaque covers on certain materials in bookstores that could be seen by minors was not unconstitutional.

Judge Brooks critiqued the presentations of both sides but seemed to direct most of his questions at Watson and other attorneys defending Act 372. He said Upper Midwest did not consider that a public library, under Act 372, must determine what material should be available to “a kindergartener and a married 17-year-old,” who are both considered minors.

Brooks also said the law does not clarify what might be “harmful” to minors, noting there is “not much daylight” between the Shipley decision and Section 1 of Act 372.

“The law does not distinguish between what might be harmful to a married 17-year-old and a kindergartner, does it?” Brooks asked Watson.

“No sir,” Watson replied.

“This is the problem,” Brooks said again later in the hearing when talking to Watson. “This is the sticky part that I’m having here. And I don’t see how Upper Midwest helps you here.”

Adams said “the most scary part” of Section 5 is what he believes is a “one-sided” review and challenge process that has the potential to send librarians and others to jail over a vague decision on “appropriateness.” Brooks would return to the theme of appropriateness with Watson, challenging him on what it means and defending the process that does not seem to allow a librarian or other person to speak during the complaint process.

Watson pushed back, saying that fears raised by Adams and others are “wholly speculative” and seek to block Act 372 by suggesting that groups will always make inappropriate decisions in complying with the law.

Brooks closed the hearing by saying he would issue a decision “prior to the end of the week.”