An update from Nate Coulter regarding Act 372

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.
–U.S. District Judge Timothy Brooks (court order, July 29, 2023)

On August 1, a new law concerning libraries, librarians, and books went into effect. Two Sections of that law, known as Act 372, did not take effect because of a ruling issued in a lawsuit CALS and others filed in federal court in June. Our library and two others, along with bookstores and a number of individuals and organizations challenged the constitutionality of those two provisions – Sections 1 and 5.   

We have previously described our concerns that prompted the CALS board to authorize our lawyer to file a lawsuit in federal court over Act 372. You may review those here.

Section 1 of Act 372 established a new criminal offense in Arkansas called “furnishing a harmful item to a minor.” Anyone, including a librarian, bookstore owner, or even a parent/guardian commits this crime punishable by up to year in prison, if she, “furnishes, presents, provides, makes available, gives, lends, shows, advertises, or distributes to a minor an item that is harmful to minors.” Separate laws define “minor” as anyone under 18 years of age, and “harmful to minors” as materials having sexually explicit descriptions or images that would meet the Supreme Court’s definition of “obscenity” as to minors.  

Section 5 mandates that all libraries have a policy for “selection, relocation, and retention” of library materials and that they create a process requiring libraries to allow any “person affected by” the challenged material to “challenge the appropriateness” of that material in the library’s main collection. The term “appropriateness” is not defined in the law. A library committee meeting in public must “determine whether the material being challenged shall be relocated . . . to an area that is not accessible to minors . . . .” If the library committee declines to segregate or “withdraw” the challenged book, the challenger may appeal that decision to the governing body of the county or city that supports the library. In CALS’ case, these appeals would be lodged with the City of Little Rock since it provides the majority of CALS’ funding.  

On Tuesday, July 25, the court held an evidentiary hearing on our motion for a preliminary injunction that sought to block implementation of Sections 1 and 5. Four days later, on Saturday July 29, U.S. District Judge Timothy Brooks issued a 49-page order preliminarily enjoining enforcement of Sections 1 and 5 pending a final disposition of our case. You may read Judge Brooks’ entire order here.

I am grateful for the court’s thorough ruling in our favor. Many of our employees are greatly relieved that for now the court has removed the threat of going to jail for CALS’ staff who are currently “making available” books in our library that older minors and adults have the right to read, but that might be deemed harmful to younger minors who venture outside the children’s area. In finding that the “breadth of this legislation and its restrictions on constitutionally protected speech” are “unjustified,” the court laid out our stark choice at CALS if this section were to go into effect:

If libraries and bookstores continue to allow individuals under the age of 18 to enter, the only way librarians and booksellers could comply with the law would be to keep minors away from any material considered obscene as to the youngest minors — in other words, any material with any amount of sexual content.”  

The court also found that CALS and the other plaintiffs “have established a likelihood that Section 5 would permit, if not encourage, library committees and local government bodies to make censorship decisions based on content or viewpoint, which would violate the First Amendment.” In doing so, the Court cited an older court decision in line with what many of us who opposed this law have been saying since its inception in the halls of the state capitol last winter: “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” 

In addition to agreeing with us that these two sections are likely to result in the abridgement of the plaintiffs’ constitutional rights,” and therefore cannot go into effect now because if they did the plaintiffs would suffer “irreparable harm, the Court’s order contained extensive passages about the importance of libraries and librarians in sustaining our country’s “bedrock principles. Here is a portion of the Court’s homage to the public library:

Librarians—much like doctors and lawyers—are afforded significant professional responsibility and deference with respect to their area of expertise. Just as a licensed physician’s mission is “to provid[e] competent medical care, with compassion and respect for human dignity and rights,”[citation omitted] and a licensed attorney is regarded as “an officer of the legal system and a public citizen having special responsibility for the quality of justice,”[Citation omitted] a professional librarian is tasked with the safeguarding of the public’s First Amendment right to receive information by “resist[ing] all efforts to censor library resources.”[citation omitted]

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. According to the United States Supreme Court, “Public libraries pursue the worthy missions of facilitating learning and cultural enrichment.”

While we will continue to wait for the judicial process to run its full course in our case, I am grateful for the many positive aspects of this test of our resolve to free speech.  I want to thank the court for giving the case a lot of time and thought; our coalition of courageous patrons, bookstore owners, libraries and associations who are plaintiffs in the case; the team of lawyers representing the plaintiffs for their very skilled work; and the people far and wide who have cheered on CALS staff and by doing so supported the “bedrock principles” we try to honor every day.  

We have also taken this opportunity to carefully reflect again on how we collect and locate materials in our many libraries. We have updated our reconsideration form to better reflect our policies and procedures for patrons. Act 372 would require a different type of a reconsideration process but CALS has always had one in place that is in line with the American Library Association Bill of Rights. You can read about our current reconsideration process here and see our revised Form 301 here. If you’re interested in the process by which books find their way into our collection, you can read about that here.

CALS will continue to defend the First Amendment rights of all our readers, young and old. We do this mindful of the concerns and interests of parents who want to be engaged with the reading activities of their children. We support parents in that objective and believe it is compatible with our dedication to instilling in children and adults a love of books and reading.