Isaac C. Parker Federal Building, Arkansas

In a significant decision for the freedom to read, the U.S. District Court for the Western District of Arkansas recently declared two key sections of Arkansas Act 372—which expose librarians and booksellers to criminal penalties—unconstitutional. Section 1’s criminal penalties for “furnishing harmful items to minors” were deemed overly broad; Section 5’s process for giving decisions on book challenges and appeals to local government officials lacked constitutional safeguards and threatened a chilling effect on library staff and users alike.

The act, signed into law in March 2023 by Gov. Sarah Huckabee Sanders, defined the provision of “harmful” materials as a Class A misdemeanor that could result in library staff serving jail time, and removed material reconsideration decisions from libraries and their boards.

While other states have seen legislation proposed to place restrictions on library materials—particularly books with LGBTQIA+ and sex education content—Act 372 marked the first time a coalition of concerned parties from across library and publishing spheres joined forces to challenge a law’s constitutionality. In May 2023, the plaintiffs, who included a consortium of Arkansas public libraries, the Arkansas Library Association, Authors Guild Inc., American Booksellers Association, Association of American Publishers Inc., the American Library Association (ALA) Freedom to Read Foundation, Comic Book Legal Defense Fund, library patrons, and two independent bookstores, filed a federal lawsuit to challenge the bill before it would take effect that August.

On July 29, 2023, U.S. District Judge Timothy L. Brooks temporarily blocked sections 1 and 5, citing violations of the First and 14th Amendments. Two days before Christmas 2024, he finalized that decision in a thoughtfully worded summary judgment.

“Advocates should take heart that the courts are supporting the right to read,” said Deborah Caldwell-Stone, director of ALA’s Office for Intellectual Freedom. “This is a court decision you can take to elected officials and to administrators.”

Brooks’s 49-page 2023 opinion opened with a quote from Ray Bradbury’s novel Fahrenheit 451, “There is more than one way to burn a book. And the world is full of people running about with lit matches.” So perhaps it is unsurprising that, 17 months later, the court ruled those sections unconstitutional, pronouncing them as overbroad, vague, and imposing content-based restrictions on protected speech. “He essentially reinforced what he had earlier concluded,” CALS Director Nate Coulter told LJ.

However, a 2023 lawsuit in Crawford County, in northwestern Arkansas, offered a clear demonstration of the dangers of what compliance with such a law might look like. Taken together, the two decisions may set strong precedence for challenges to pro-censorship laws in other states.

PREEMPTIVE COMPLIANCE

In December 2022, shortly before Act 372 was signed into law, the board of the Crawford County Library System (CCLS) interpreted the act’s Section 5 to mean that “they were permitted to ‘segregate constitutionally protected materials’ on the basis of viewpoint alone,” according to the July 2023 injunction (Crawford County was named as a defendant in the suit). The library director relocated books with LGBTQIA+ content, a title on puberty, a story about a child with disabilities, a book about witchcraft, and a guide to world religions, to what it called a “social section” of the library. The action was taken under duress, as the county quorum court had threatened to defund the library if the director did not comply.

“It demonstrated the potential harms that could come from allowing enforcement of this law,” said Caldwell-Stone—“the points that Judge Brooks makes over and over again: That the law was vague, that the definitions were uncertain, made it very possible for elected officials to engage in content and viewpoint discrimination.”

CCLS was sued by several parents, who alleged that by reshelving the titles, children who wanted to find them would have to use the adult section of the library, where the new section was located.

On September 30, 2024, United States District Judge for the Western District of Arkansas P.K. Holmes III, enjoined Crawford County’s actions as unconstitutional and in violation of the library patrons’ First Amendment rights, observing that “public libraries have an obligation not to stigmatize disfavored viewpoints that are already in their collection.” The library was ordered to return the titles to their original shelves.

The Crawford County suit was an essential piece of the Act 372 decision. CCLS “had essentially begun what we said in our lawsuit was going to be an indication, or the example, that everybody else would begin to follow,” noted Coulter. The suit “reinforced the finding that Section 5 enabled, if not encouraged, viewpoint- and content-based determinations with regard to books, and [Judge Holmes] said that obviously is a violation of the First Amendment.”

The lawsuit offered “great opportunity to demonstrate the harms that could come from this kind of mandated censorship, and an affirmation of the proposition that no government official should limit what people could read and what’s available in the public library, that that should always remain the choice of the reader, and that the curation of a library collection should remain in the hands of library professionals who are trained to create a collection that suits everyone in the community, serves everyone in the community, and assures that there is a wealth of information and ideas available for everyone to access.”

SETTING PRECEDENT

Brooks’s 37-page decision lays out implications for libraries, librarians, and patrons in clear language that defines not only constitutional law but how library selection policies work; the nuances between the information needs of the youngest minors in the library and older, teenage minors; and how the chilling effect of viewpoint-based censorship impact patrons of all ages, including adults. “If you’re in a small town, and the library is at the center of a controversy generated by the local government, I can’t blame you for saying, ‘Well, maybe I’ll just avoid this conflict,’” said Coulter. “What you’ve done by threatening to put people in jail is you’ve made the librarians and booksellers agents of censorship.”

He assumes the state will appeal the decision, “but I’m optimistic and confident that Judge Brooks got it right,” he told LJ—including Brooks’s rejection of the attempted argument that libraries are government entities, and therefore not protected by First Amendment rights under the government speech doctrine.

Freedom to read advocates in other states should be heartened by this decision, both Coulter and Caldwell-Stone agree. The precedent set by the Arkansas coalition’s challenge to Act 372 is strong, both legally and for the average American who may not be embroiled in the details of First Amendment rights. “There are things in there that can be used to make cases to people who just don’t think about it every day the way we do,” noted Coulter. “If you allow censorship, it’s not good, and it’s not an American value. It’s not something that you should sanction.”

“I think that [other states] can take this decision and use it with legislators to demonstrate that, in fact, the First Amendment does protect the freedom to access information in libraries and protects the right to read,” said Caldwell-Stone. “And that litigation is expensive”—Crawford County will be on the hook for some six figures in legal fees.

ALA, with the help of General Counsel Theresa Chmara, is currently engaged in eight censorship legislation cases across the country, added Caldwell-Stone. “This has been some of the most important work that the Freedom to Read Foundation has done in recent years. We’ve taken it as our mission right now to ensure that in every case, amicus briefs are filed that emphasize the importance of libraries as resources of information for every community, the application of the First Amendment, the right to read, and upholding the professionalism of librarians.”

Arkansas will be introducing HB 1028, a statewide anti–book banning bill, in the upcoming 2025 legislative session. “I’m not optimistic about its chances for being adopted in the Arkansas legislature, given the supermajority of Republicans in both houses,” said Coulter. “I think the point is to create an opportunity for discussion, and to highlight some of these things—are there people who don’t necessarily agree with us on everything who can agree with us on this one thing?”