Arkansas State Capitol Photo credit: HAL333, CC BY-SA 4.0 via Wikimedia Commons

In Arkansas, libraries and their supporters are taking on the state over a new law that could see jail time for library workers.

On May 25, the Central Arkansas Library System (CALS) library board voted nearly unanimously to file a federal lawsuit challenging the constitutionality of Act 372, also known as Senate Bill 81. The bill, which was signed into law in March by Gov. Sarah Huckabee Sanders and will go into effect in August, creates the offense of “furnishing a harmful item to a minor” and makes it a Class A misdemeanor. It also allows a parent or legal guardian of a minor to access the minor’s library records. In addition, it provides for civil action against governmental entities that possess, sell, or distribute “obscene materials,” and updates the process for challenging library titles.

Among other provisions, the law would make it possible for library staff to serve up to a year in jail for providing access to materials considered harmful (as defined by state code) to minors and would take decisions about the reconsideration of materials out of the hands of library boards and place them into the hands of elected officials.

The goal of the lawsuit, CALS Director Nate Coulter told Library Journal, is to challenge the bill before it is applied. Once it goes into effect, he said, it will “be applied in a way that is vague and leaves questions to librarians about what they can and cannot collect and circulate without going to jail.”

In addition to CALS—winner of the 2021 Jerry Kline Community Impact Prize—the other parties to the suit include the Fayetteville Public Library, the Eureka Springs Carnegie Public Library, the Arkansas Library Association, Authors Guild Inc., American Booksellers Association, Association of American Publishers Inc., Freedom to Read Foundation, and Comic Book Legal Defense Fund, and two independent bookstores.

WHY A LAWSUIT?

There are two provisions in the statute that are particularly concerning, said Coulter.

One is the misdemeanor clause. “There's no distinction between a 16-year-old minor and a six-year-old minor,” he noted. “Its effect, we think, is hostile to the freedom to read and is enabling censorship, even before it’s applied. It creates a process that allows one patron to come in and trigger this review at a nonjudicial, legislative level in the county or the city. It provides no input on the part of the person who wishes that material to stay in the broad circulation of the library.”

The second is the mandated process for reconsideration of library materials. This section states that the “librarian of the county or municipal library shall select a committee of library personnel,” including the librarian or a designee, who would review materials that are challenged and determine whether these “shall be relocated within the library’s collection to an area that is not accessible to minors under the age of eighteen (18) years.”

If the committee does not decide to relocate the materials, the person who submitted the request for review may appeal to “the governing body of the county or city.” That decision is final.

This new process, Coulter noted, “creates a fairly complex internal system of review, and then it requires that the appeal process go no longer to the library board, but, in our case, the city board.”

“There is no standard given to these nonjudicial tribunals to review what the patron wants relocated in the collection,” he said, other than that it be deemed “inappropriate.”

Coulter pointed out that there is some cause for encouragement from a 2004 ruling, when a federal judge struck down a law signed in 2003 by former Gov. Mike Huckabee (father of the current governor) that banned displays of reading material deemed harmful to minors. “We believe that we are on firm ground and that there’s precedent supporting our challenge in regard to section one” of the bill, Coulter said.

ELECTED OFFICIALS VS. “UNELECTED BUREAUCRATS”—LIBRARIANS

The lead sponsor of Senate Bill 81 in the state legislature, State Sen. Dan Sullivan (R-Jonesboro), was involved in efforts to defund the public library in his hometown of Jonesboro in the wake of the library's installation of a Pride Month display, in June 2021. Last year, millage for the Craighead County Jonesboro Public Library was cut in half.

Sullivan has dismissed the notion that the bill promotes book banning. “It boils down to this,” he wrote in a Facebook post: “Do you want elected officials who are accountable to the citizens and have sworn an oath to uphold our Constitution OR unelected bureaucrats making these crucial decisions?”

The bill “creates a uniform process for challenging books available to children in public and school libraries,” Sullivan wrote in an opinion piece in the Arkansas Democrat-Gazette. “So now, parents concerned about the placement of inappropriate material in the children's section can appeal the decisions of unelected librarians to local elected officials.”

“Who is going to determine what’s inappropriate?” Coulter wondered. “You would put it in the politician’s hands to decide what can be in the library or what has to be put in the smut room or sequestered somewhere that you police and keep everybody under 18 away from.”

HARDSHIPS FOR STAFF

CALS employees “feel extremely hurt and targeted and vilified” by the bill and the rhetoric around it, Coulter said, in addition to worrying about being subjected to possible criminal charges.

Pulaski County Republicans posted on Facebook on May 25, “Clearly Nate and his cronies don’t care that your children could be exposed to graphic sexual content while browsing in the children’s section of our libraries.” To which one commenter wrote, “Nate and his crew want children exposed [to] LGBT books so they can become future Democrats.”

“I tell my staff, ‘These things are political points,’” Coulter said. “They don't know you. They don't really care about your humanity, because that's not where their focus is. But that’s cold comfort, I realize, to people who are being spoken about like this and being treated like this by a fairly vocal part of the community, particularly by people who have control of the state government.”

“This is a very vague and overbroad law that librarians and library workers do not know how to follow,” Arkansas Library Association President Carol Coffey told LJ. “We know that this is going to create some hardships for libraries, especially small libraries in Arkansas that may only have one or two employees and may only have one small room. Where are they going to segregate the materials?”

As the president of the association, Coffey said she will recommend that libraries do everything they can to comply with the law. But “It seems to me that perhaps people don't actually understand what libraries do and how we operate,” she added—“That we have procedures in place for people to challenge materials. That we take a lot of care in buying materials to fill the needs of our patrons and to ensure that kids can see themselves in the materials in the library.”

Although parents’ rights are allegedly at the forefront of the new law, Coffey suggested that some would be prioritized over others. “If an item is removed from access by kids due to one parent’s objection, but another parent wants their kids to be able to read that book, then that has negated their rights,” she said.

DISSENTING VOICES

Alexis Sims, the one CALS board member to vote against participating in the lawsuit—there was one abstention—said she does not feel that the bill bans books or infringes on First Amendment rights, but simply moves materials or books that the law defines as obscene or harmful to minors to the adult section or some other location in the library. “I feel that [the bill] represents our patrons,” she told LJ. “Our patrons are also voters, and they voted for their representatives, who then, with a healthy majority, passed this act.”

“I think our staff resources and finances are better suited to focus on the needs of our patrons,” Sims said. “We have a big renovation coming up with our main branch, and that’s something that we need to focus on. I don’t think the financial burden of this lawsuit, which may be fairly large, is something that we should ask our patrons to pay for.” She also argued that, given the multiple plaintiffs, the lawsuit was going to happen whether CALS joined or not.

Sullivan also brought up the question of legal costs. In an interview on conservative Conduit News, he criticized Coulter and attacked the library system for spending taxpayers’ money on a lawsuit, saying, “They want to use government money to sue the government.”

However, Coulter told the Arkansas Times, attorneys have offered to work on the case pro bono, and the library has set up a webpage to raise funds.

THE REAL THREAT

When it comes to the dangers for young people, said Coulter, legislation like Senate Bill 81 is missing the mark. “Who among us…believes that the library, as opposed to the teenager’s device or the teenager’s access to the internet or social media, is really the threat to children?” he asked.

His advice to parents worried about their children picking up material they think is “pornographic,” he said, is to “get engaged with what your children are doing, what they’re reading. Be in the library with your children and trust the library’s professionals to keep materials in the library that are age appropriate in the children’s section.”

However, Coulter added, “If your real concern is that you don’t want materials in the library to reflect a lived experience or a perspective that’s different from your own, then that’s probably something that you really can’t do anything about. The public library is here to [provide] access to content for everybody in all parts of the community.”