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IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

FAYETTEVILLE PUBLIC LIBRARY, a political subdivision

in the City of Fayetteville, State of Arkansas;
EUREKA SPRINGS CARNEGIE PUBLIC LIBRARY;
CENTRAL ARKANSAS LIBRARY SYSTEM;
NATE COULTER; OLIVIA FARRELL; MIEL PARTAIN,
in her own capacity and as parent and next friend of
MADELINE PARTAIN; LETA CAPLINGER; ADAM WEBB;
ARKANSAS LIBRARY ASSOCIATION;
ADVOCATES FOR ALL ARKANSAS LIBRARIES;
PEARL’S BOOKS, LLC; WORDSWORTH COMMUNITY
BOOKSTORE, LLC d/b/a WORDSWORTH BOOKS;
AMERICAN BOOKSELLERS ASSOCIATION;
ASSOCIATION OF AMERICAN PUBLISHERS, INC.;
AUTHORS GUILD, INC.;
COMIC BOOK LEGAL DEFENSE FUND;
and FREEDOM TO READ FOUNDATION PLAINTIFFS

V. CASE NO. 5:23-CV-5086

CRAWFORD COUNTY, ARKANSAS; CHRIS KEITH,

in his official capacity as Crawford County Judge;
TODD MURRAY; SONIA FONTICIELLA; DEVON HOLDER;
MATT DURRETT; JEFF PHILLIPS; WILL JONES;
TERESA HOWELL; BEN HALE, CONNIE MITCHELL,
DAN TURNER, JANA BRADFORD; FRANK SPAIN;
TIM BLAIR; KYLE HUNTER; DANIEL SHUE; JEFF ROGERS;
DAVID ETHREDGE; TOM TATUM, II; DREW SMITH;
REBECCA REED MCCOY; MICHELLE C. LAWRENCE;
DEBRA BUSCHMAN; TONY ROGERS; NATHAN SMITH;
CAROL CREWS; KEVIN HOLMES; CHRIS WALTON;
and CHUCK GRAHAM, each in his or her official capacity
as a prosecuting attorney for the State of Arkansas DEFENDANT
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TABLE OF CONTENTS

I. LEGAL STANDARD ................................................................................................ 4

II. DISCUSSION ........................................................................................................... 5

A. Section 1: The Criminal Provision .................................................................. 5

1. Overview ................................................................................................. 5

2. Standing and Ripeness ........................................................................... 9

3. Constitutional Analysis .......................................................................... 12

i. Overbreadth ..................................................................................... 13

ii. Vagueness ...................................................................................... 21

B. Section 5: The Challenge Provision ............................................................. 22

1. Overview ............................................................................................... 22

2. Standing and Ripeness ......................................................................... 27

3. Constitutional Analysis .......................................................................... 31

i. Vagueness ....................................................................................... 31

ii. Content-based Restrictions ............................................................. 33

III. CONCLUSION ....................................................................................................... 37

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MEMORANDUM OPINION AND ORDER

On June 2, 2023, a coalition of public libraries, library organizations, professional

librarians, library patrons, booksellers, patrons of bookstores, booksellers’ associations,

and authors’ associations challenged the constitutionality of Sections 1 and 5 of Arkansas

Act 372. According to its title, Act 372 “amend[s] the law concerning libraries and obscene

materials; . . . create[s] the offense of furnishing a harmful item to a minor; and . . .

amend[s] the law concerning obscene materials loaned by a library.” See Doc. 75-1 (full

text of Act 372, cited herein as “Act 372 § ___”). Section 1 would impose a misdemeanor

penalty of up to one year in jail on librarians, booksellers, and others who make certain

media “available” to anyone under the age of eighteen.1 Section 5 would mandate a new

procedure for libraries, city councils, and county quorum courts to follow when evaluating

a citizen’s request to move or remove a book from a public library’s permanent collection.

Plaintiffs sued two groups of defendants: Arkansas’s twenty-eight prosecuting

attorneys, who would enforce Section 1’s criminal penalty; and Crawford County,

Arkansas, one of several governmental bodies in the state that exerts fiscal and

regulatory control over a public library or libraries, along with Crawford County’s Chief

Executive, County Judge Chris Keith, who would be responsible for implementing

Section 5 in Crawford County.2

1
Section 1 broadly targets books, magazines, motion pictures, photographs, articles, and
recordings. See Act 372 § 1(a)(4)(B)(i).
2
The Arkansas Attorney General represents the prosecutors and is defending both
sections of the challenged law. The Court will therefore refer to the prosecutors and
Attorney General’s office collectively as “the State,” and Crawford County and County
Judge Keith collectively as “the Crawford County Defendants.”

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Following full briefing on all the issues and an in-person hearing, the Court

preliminarily enjoined Sections 1 and 5 on July 29, 2023, three days before the law was

set to take effect. See Doc. 53 (“Preliminary Injunction Order”). None of the Defendants

took an interlocutory appeal, and the case proceeded to discovery, followed by dispositive

motion practice. Though approximately seventeen months have passed since the

Preliminary Injunction Order issued, nothing much has changed: Plaintiffs still have

standing to sue on ripe claims, and they have sued the correct parties; Sections 1 and 5

of the Act remain vaguely worded and susceptible to multiple meanings; Section 1

violates the due process rights of professional librarians and booksellers and the First

Amendment rights of library and bookstore patrons; and Section 5 empowers local

elected officials to censor library books they feel are not “appropriate” for citizens to read

and allows (if not encourages) content- and viewpoint-based restrictions on protected

speech without any compelling governmental purpose.

Before the Court are the parties’ ripe cross-motions for summary judgment. See

Docs. 90, 93, 99. The parties are in agreement that no genuine, material disputes of fact

exist and that the Court may enter judgment as a matter of law. Accordingly, and for the

reasons explained below, Plaintiffs’ Motion for Summary Judgment is GRANTED, and

Defendants’ Motions for Summary Judgment are DENIED. Defendants are

PERMANENTLY ENJOINED from enforcing Sections 1 and 5 of Act 372.

I. LEGAL STANDARD

A party moving for summary judgment must establish the absence of a genuine

dispute of material fact and its entitlement to judgment as a matter of law. See Fed. R.

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Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87

(1986); Nat’l Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th

Cir. 1999). The same standard applies where, as here, the parties have filed cross-

motions for summary judgment. When there exists no genuine issue as to any material

fact, “summary judgment is a useful tool whereby needless trials may be avoided, and it

should not be withheld in an appropriate case.” United States v. Porter, 581 F.2d 698,

703 (8th Cir. 1978). Each motion should be reviewed in its own right, however, with each

side “entitled to the benefit of all inferences favorable to them which might reasonably be

drawn from the record.” Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir.

1983); see also Canada v. Union Elec. Co., 135 F.3d 1211, 1212–13 (8th Cir. 1998).

II. DISCUSSION

A. Section 1: The Criminal Provision

1. Overview

The stated purpose of Section 1 is to define a new Class A misdemeanor offense

called “furnishing a harmful item to a minor.” One is guilty of this crime “if, knowing the

character of the item involved, the person knowingly . . . [f]urnishes, presents, provides,

makes available, gives, lends, shows, advertises, or distributes to a minor an item that is

harmful to minors.” Act 372 § 1(b)(1).

The terms “minor” and “harmful to minors” are separately defined in Arkansas’s

variable obscenity statute, found at Title 5, Chapter 68 of the criminal code. A minor is

“any person under eighteen (18) years of age.” Ark. Code Ann. § 5-68-501(7). The term

“harmful to minors,” which incorporates the Supreme Court’s approved definition of

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“obscenity,” means:

any description, exhibition, presentation, or representation, in whatever

form, of nudity, sexual conduct, sexual excitement, or sadomasochistic
abuse, when the material or performance, taken as a whole, has the
following characteristics:

(A) The average person eighteen (18) years of age or older applying
contemporary community standards would find that the material
or performance has a predominant tendency to appeal to a
prurient interest in sex to minors;

(B) The average person eighteen (18) years of age or older applying
contemporary community standards would find that the material
or performance depicts or describes nudity, sexual conduct,
sexual excitement, or sadomasochistic abuse in a manner that is
patently offensive to prevailing standards in the adult community
with respect to what is suitable for minors; and

(C) The material or performance lacks serious literary, scientific,

medical, artistic, or political value for minors.

Ark. Code Ann. § 5-68-501(2).

Prior to Act 372, it was already illegal in Arkansas to provide obscene materials to

minors, but librarians were granted special immunity from prosecution if they were “acting

within the scope of [their] regular employment duties.” See Ark. Code Ann. § 5-68-308(c)

(2020). Such immunity had not been questioned for nearly forty years. See 4000 Asher,

Inc. v. State, 290 Ark. 8, 13 (1986) (declaring the immunity statute “reasonable on its

face”). Up until the passage of Act 372, it appears that Arkansas’s more pressing concern

with respect to librarians was that they be insulated from meritless claims and time-

wasting prosecutions. Times have changed.

Plaintiffs contend that Section 1 of Act 372 is unconstitutional on its face because

it is overbroad and certain terms are too vague to be reasonably understood, which will

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lead to arbitrary enforcement. A law is overbroad and facially invalid when “the

impermissible applications of the law are substantial when judged in relation to the

statute’s plainly legitimate sweep.” Snider v. City of Cape Girardeau, 752 F.3d 1149, 1157

(8th Cir. 2014) (citing Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). The librarian

and bookseller Plaintiffs fear that the term “harmful to minors” could be interpreted broadly

to apply to a great number of works, including ones that would be acceptable for adults

and older minors to view.

Further, they worry that Section 1 does not clearly define what it means to

“present,” “show,” or “make[ ] available” a certain book. Act 372, § 1(b)(1). They ask

whether a librarian could face criminal penalties by displaying a book containing sexual

content in the teen or adult section of the library if a younger minor could also visit that

section—either accompanied or unaccompanied by an adult—and see or handle the

book.3 A court may declare a law void-for-vagueness if it “forbids or requires the doing of

an act in terms so vague that persons of common intelligence must necessarily guess at

its meaning and differ as to its application” or if it enables “arbitrary and discriminatory

enforcement” by “impermissibly delegat[ing] basic policy matters to [government officials]

for resolution on an ad hoc and subjective basis.” Stephenson v. Davenport Cmty. Sch.

Dist., 110 F.3d 1303, 1308 (8th Cir. 1997) (internal citations and quotations omitted).

The librarian and bookseller Plaintiffs fear they could be prosecuted under

3
Notably, there is no exemption for parents or guardians under Section 1. The Court
surmises that if a parent were to act as a straw buyer or borrower of a book that a
prosecutor deemed “harmful” to a young minor, criminal liability could attach if the parent
then made the material available to her seventeen-year-old child.

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Section 1 because there are currently books and other materials on library and bookstore

shelves that could be deemed “harmful” to younger minors and are conceivably

“available” for younger minors to view. Plaintiffs claim their options for removing the threat

of criminal liability—which involve excluding children from libraries and bookstores or

segregating books into adults-only rooms—are logistically and financially untenable and

contrary to the core purpose of public libraries and community bookstores.

In response to Plaintiffs’ overbreadth argument, the State contends that Section 1

is constitutional because it is identical in all material respects to a criminal ordinance the

Eighth Circuit approved in a case called Upper Midwest Booksellers Ass’n v. City of

Minneapolis, 780 F.2d 1389 (8th Cir. 1985). Next, the State argues that even if Section 1

unconstitutionally restricts older minors’ access to certain reading materials, the law

should be deemed constitutional as to younger minors and adults, who collectively

outnumber older minors and render the legitimate sweep of Section 1 more substantial

than its overbreadth. Lastly, the State disagrees with Plaintiffs that lumping all minors

together into a class, regardless of age or developmental maturity, is problematic and will

violate older minors’ constitutional right to access books that are not harmful to them.

After all, the State notes, “laws often treat minors as a class,” and writing a more tailored

law that does not overly burden the First Amendment rights of older and/or

developmentally mature minors would be too daunting a task for the legislature. (Doc.

107, p. 13).

With respect to Plaintiffs’ void-for-vagueness argument, the State offers a five-

sentence response that claims without explanation that the challenged terms are

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“ordinary terms that people use and understand every day” and are not vague at all. See

id. at p. 15. The State also encourages librarians and booksellers to take comfort in the

fact that prosecutors will do nothing more than apply “contemporary community

standards” when assessing whether a book is “harmful to minors”—which should quell

their fears of arbitrary prosecution. See id. at p. 13.

2. Standing and Ripeness

At the preliminary-injunction phase of these proceedings, the Court found that at

least one plaintiff had standing to challenge the constitutionality of Sections 1 and 5 of

Act 372 and that such challenges were ripe. See Doc. 53, pp. 19–24. The State, however,

raises standing and ripeness again on summary judgment, arguing that Plaintiffs have

failed to show that their injuries are more than speculative in nature. The State contends

there is “no guarantee that the Plaintiffs will be prosecuted” under Section 1 based on

making available any particular book or books that currently exist on the shelves of

Arkansas’s public libraries or bookstores. (Doc. 95, p. 11). These arguments fail to

appreciate the nature of Plaintiffs’ facial challenge to Section 1; “[w]hether a plaintiff has

shown . . . an injury often turns on the nature and source of the claim asserted.” L.H. v.

Indep. Sch. Dist., 111 F.4th 886, 893 (8th Cir. 2024) (citation omitted and cleaned up).

On a basic level, standing requires an injury in fact that is concrete and

particularized and actual or imminent; in addition, such injury must be “fairly . . . traceable

to the challenged action of the defendant[s],” and “it must be likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560–61 (1992) (cleaned up). Recently, the Eighth Circuit

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characterized the standing requirement for a First Amendment injury as “a forgiving

standard, satisfied so long as the plaintiff’s ‘intended future conduct is arguably . . .

proscribed by the statute it wishes to challenge.’” L.H., 111 F.4th at 893 (quoting Turtle

Island Foods, SPC v. Thompson, 992 F.3d 694, 699 (8th Cir. 2021)).

Here, the librarian and bookstore Plaintiffs argue—and the State agrees, see Doc.

95, pp. 19–20—that prosecutors could reasonably interpret the terms “present” or “make

available” in Section 1(b)(1) to mean “make accessible.” While the State helpfully offers

the dictionary definitions of these terms, those definitions provide no additional insight

into the actions required of Plaintiffs to conform their conduct to the law. If a book with

some sexual content were placed on a shelf or otherwise displayed in the teen or adult

section of the library or bookstore, the librarian or bookseller could reasonably be accused

of “furnishing a harmful item to a minor” if a younger minor could access it. The vague

and undefined terms in Section 1 thus subject the librarian and bookstore Plaintiffs to a

credible fear of prosecution, as they are uncertain what lengths they must go to in order

to comply with the law.4

4
The library and bookseller Plaintiffs and the associational Plaintiffs representing those
entities have provided uncontroverted testimony regarding the hundreds of books
displayed in their collections and inventories that are likely to subject librarians and
booksellers to prosecution under Section 1 because they merely discuss sex. See Doc.
113, p. 6 n.7 (collecting Plaintiff testimony). And Plaintiffs who are adult patrons and
mature-teenager patrons of public libraries and bookstores have provided undisputed
testimony that they are interested in reading books that contain at least some sexual
content, which, in the Arkansas Supreme Court’s view, see Shipley, Inc. v. Long, 359 Ark.
208, 219 (2004), would qualify as material that is “harmful” to younger, less mature
minors. See, e.g., Doc. 99-19, pp. 14–15 (Caplinger Depo.); Doc. 99-20, p. 12 (Madeline
Partain Depo.); Doc. 99-21, p. 15 (Miel Partain Depo.).

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The Court observes that in a factually similar case, Virginia v. American

Booksellers Ass’n, the Supreme Court held that booksellers in Virginia had standing to

sue the Commonwealth to enjoin a law that would criminalize the commercial display of

materials deemed “harmful to juveniles.” 484 U.S. 383, 393 (1988). The Court was “not

troubled by the pre-enforcement nature” of the suit’s facial challenge. Id. at 387. Virginia’s

definition of “harmful to juveniles” was almost identical to Arkansas’s definition of “harmful

to minors”: both statutes refer to books considered obscene to those under the age of

eighteen. Compare id. at 387 n.2 (quoting Virginia statute defining “harmful to juveniles”),

with Ark. Code Ann. § 5-68-501(2) (Arkansas criminal code definition of “harmful to

minors”).

The Virginia Court held that the booksellers who were subject to the law’s criminal

penalties had standing to sue because, “if their interpretation of the statute [was] correct,

[they would] have to take significant and costly compliance measures or risk criminal

prosecution.” 484 U.S. at 392; see also Holder v. Humanitarian L. Project, 561 U.S. 1, 15

(2010) (finding plaintiffs were not required to “await and undergo a criminal prosecution

as the sole means of seeking relief”). Accordingly, this Court finds that the librarian and

bookseller Plaintiffs have standing in the instant case—as the booksellers did in the

Virginia case—because “[t]he State has not suggested that the newly enacted law will not

be enforced . . . [and] plaintiffs have alleged an actual and well-founded fear that the law

will be enforced against them.” 484 U.S. at 393.

As for the Plaintiffs who are patrons of libraries and bookstores, the Court finds

they also have standing to sue on their ripe, non-speculative claims of injury attributable

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to Section 1. The Arkansas Supreme Court interpreted the term “harmful to minors” to

mean “materials that would arguably be ‘harmful’ to [younger minors], even though not

‘harmful’ to an older child.” Shipley, Inc. v. Long, 359 Ark. 208, 219 (2004). It follows that

to avoid criminal prosecution, librarians and booksellers will have no other choice but to

burden older minors’ and adults’ access to books that contain even a modicum of sexual

content; they will be required to place such books in areas where younger minors cannot

see or reach them, whether on high shelves or in locked rooms. The State offers no

legitimate governmental reason why such burdens on public access to speech are

necessary or narrowly tailored to a particular purpose.

In sum, multiple Plaintiffs have standing to challenge Section 1—though only one

plaintiff is necessary.5 See Horne v. Flores, 557 U.S. 433, 446–47 (2009).

3. Constitutional Analysis

The Court finds that Section 1 of Act 372 is unconstitutional for two reasons. First,

it is overbroad because it regulates substantially more speech than the Constitution

allows and therefore violates the First Amendment rights of Arkansans. Second, its terms

5
These Plaintiffs include:

• booksellers Pearl’s Books, LLC, and Wordsworth Community Bookstore, LLC,

d/b/a/ WordsWorth Books;
• librarians Nate Coulter and Adam Webb;
• the American Booksellers Association as representative of its Arkansas bookseller
members;
• the Arkansas Library Association, Advocates for All Arkansas Libraries, the Comic
Book Legal Defense Fund, and the Freedom to Read Foundation, as
representatives of their Arkansas librarian members 5; and
• library patrons Olivia Farrell, Miel Partain (individually and as next-friend of her
minor daughter Madeline Partain), and Leta Caplinger.

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are so vague that they fail to provide librarians and booksellers with adequate notice of

what conduct is prohibited, thus violating their due process rights.

i. Overbreadth

A law is unconstitutionally overbroad and facially invalid when it “reaches a

substantial amount of constitutionally protected conduct.” Vill. of Hoffman Ests. v. Flipside,

Hoffman Ests., Inc., 455 U.S. 489, 494 (1982). The overbreadth doctrine thus forbids

restrictions on speech where “a substantial amount of protected speech is prohibited or

chilled in the process.” Ashcroft v. Free Speech Coal., 535 U.S. 234, 237 (2002). “[T]here

must be a realistic danger that the statute itself will significantly compromise recognized

First Amendment protections of parties not before the Court for it to be facially challenged

on overbreadth grounds.” Members of City Council v. Taxpayers for Vincent, 466 U.S.

789, 801 (1984).

Section 1 makes it a crime to “knowingly . . . furnish[ ], present[ ], provide[ ], make[ ]

available, give[ ], lend[ ], show[ ], advertise[ ], or distribute to a minor an item that is harmful

to minors.” Act 372 § 1(b)(1). Key to the statute’s interpretation and enforcement is what

“harmful to minors” means. This term is defined in Arkansas’s criminal code. See Ark.

Code Ann. § 5-68-501(2). As the State points out in its briefing, Arkansas’s definition

tracks the Supreme Court’s approved definition of obscenity for minors, taken from Miller

v. California, 413 U.S. 15, 24 (1973), and Ginsberg v. New York, 390 U.S. 629, 633 (1968).

However, Section 1 does not distinguish between minors of different ages and instead

aggregates them into a single category: “minors.”

About twenty years ago, the Arkansas legislature tried and failed to pass a statute

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that was very similar to Section 1, and a federal district court deemed it unconstitutional.

In 2003, the General Assembly passed Act 858, which amended Arkansas Code § 5-68-

502(1) to make it a crime to “display material which is harmful to minors in such a way

that minors, as part of the invited general public, will be exposed to view such material”

and also to “[s]ell, furnish, present, distribute, allow to view, or otherwise disseminate to

a minor, with or without consideration, any material which is harmful to minors.” When

Arkansas bookstore owners, booksellers’ associations, librarians, and publishers

challenged the law’s constitutionality, the Honorable G. Thomas Eisele, United States

District Judge for the Eastern District of Arkansas, certified certain questions of statutory

interpretation—in particular, the definition of “harmful to minors”—to the Arkansas

Supreme Court. See Shipley, Inc. v. Long, 454 F. Supp. 2d 819, 820 (E.D. Ark. 2004).

Judge Eisele modeled his request after one that the U.S. Supreme Court had sent

to the Virginia Supreme Court in a factually similar case. In 1985, Virginia’s legislature

passed a variable obscenity law that made it unlawful to knowingly display sexually

explicit materials considered “harmful to juveniles” in a manner in which “juveniles may

examine and peruse.” Am. Booksellers Ass’n, Inc. v. Virginia, 792 F.2d 1261, 1263 (4th

Cir. 1986). The district court for the Eastern District of Virginia permanently enjoined the

law, and the Commonwealth appealed the decision to the Fourth Circuit, which affirmed.

Id. at 1262–63. In the Fourth Circuit’s view, Virginia’s law was no mere time/place/manner

restriction on speech; instead, it “impose[d] restrictions based on the content of

publications.” Id. at 1265. The Fourth Circuit also declined to credit the Commonwealth’s

assertion that “only a small percentage of the inventory in bookstores could be classified

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as harmful to juveniles.” Id. The court worried that “an older minor’s first amendment rights

[could] be limited by the standards applicable to younger juveniles” once the law was

enforced. Id. at 1264 n.7. In other words, the Fourth Circuit did not assume that the only

material subject to Virginia’s regulation was the kind of pornographic material that would

be considered “harmful” to the oldest of minors and therefore harmful to all minors as a

class. Since Virginia’s law unduly burdened both adults’ and older minors’ First

Amendment rights to access speech, it was struck down as a content-based, overbroad

regulation.

The Commonwealth appealed once again to the U.S. Supreme Court, which

accepted certiorari—ostensibly to resolve a circuit split. See Virginia v. Am. Booksellers,

Inc., 484 U.S. 383 (1988). By the time the Supreme Court became involved, the Fourth,

Eighth, and Tenth Circuits had all analyzed similar statutes restricting the display of

materials considered obscene as to minors and had come to different conclusions. The

Eighth and Tenth Circuits approved the laws they were asked to review, while the Fourth

Circuit struck down its law down as unconstitutional.

In the Eighth Circuit case, Upper Midwest Booksellers Ass’n v. City of Minneapolis,

the plaintiff challenged a Minneapolis ordinance regulating how material that was “harmful

to minors” was to be displayed for sale. 780 F.2d 1389, 1390 (8th Cir. 1985). The

ordinance directed booksellers to place an opaque cover on any material whose “cover,

covers, or packaging, standing alone, [was] harmful to minors.” Id. None of the material

would have been obscene to adults; the law “merely regulate[d] the manner of display of

materials harmful to minors. It d[id] not forbid the display of such materials and d[id] not

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limit their sale to adults.” Id. at 1394 (emphasis added).

After balancing the relative burden the statute would impose on adult access to

speech, the Eighth Circuit found the Minneapolis ordinance constitutional, noting that its

definition of “harmful to minors” tracked the definition approved by the Supreme Court in

Ginsberg and Miller, and the law’s “sealed wrapper provision” imposed only a minimal

burden on adults’ ability to thumb through restricted materials before purchase. Id. at

1395. Unlike the bookseller plaintiffs in the Virginia case, the Upper Midwest plaintiff never

raised—and thus the court did not consider—the argument that some materials implicated

by the Minneapolis ordinance might be “harmful” to younger minors but not to older

minors—and thereby infringe older minors’ First Amendment rights. This concern did not

seem to be on the Eighth Circuit’s radar. In fact, the court observed that “any material

covered by the Minneapolis ordinance [was] likely to be on the borderline between

pornography and artistic expression,” which implies the court was only considering the

display of materials that would be harmful to all minors, including older minors, such as

pornography. Id. at 1396.

A couple of years prior to the decision in Upper Midwest, the Tenth Circuit approved

the constitutionality of a similar ordinance proscribing the display in bookstores of material

that was obscene as to minors. See M.S. News v. Casado, 721 F.2d 1281, 1288 (10th

Cir. 1983). That ordinance stated that a bookstore could comply with the law by placing

the offensive material behind blinder racks, “so that the lower two-thirds of the material

[was] not exposed to view.” Id. at 1287. The Tenth Circuit also appears to have assumed

without discussion that the materials subject to the ordinance would be “harmful” to older

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and younger minors alike and, thus, harmful to all minors as a class. The court analogized

the statute at issue to the one described in Ginsberg, which “proscribe[d] the sale of ‘girlie

magazines’ to minors.” Id. at 1286.

Returning to the Supreme Court’s decision in Virginia, the question of what

“harmful to juveniles” meant was the deciding factor in assessing the constitutionality of

the subject statute. Even though the Commonwealth’s Attorney General “argue[d] that the

statute’s coverage [was] much narrower than plaintiffs allege[d]” and would cover “only a

very few ‘borderline’ obscene works,” that explanation was not good enough for the high

Court, which noted that the Virginia Attorney General’s interpretation of the law “[did] not

bind the state courts or local law enforcement authorities” and was not “authoritative.”

Virginia, 484 U.S. at 394, 395.

The U.S. Supreme Court therefore asked the Virginia Supreme Court, “[W]hat

general standard should be used to determine the statute’s reach in light of juveniles’

differing ages and levels of maturity[?]” Id. at 395. The Virginia Supreme Court responded

that “harmful to juveniles” meant only those books deemed obscene to older minors. See

Virginia v. Am. Booksellers Ass’n, Inc., 372 S.E.2d 618, 623 (Va. 1988) (“A book will pass

statutory muster . . . if it has serious value for a legitimate minority of juveniles, and in this

context, a legitimate minority may consist of older, normal (not deviant) adolescents.”).

Upon receipt of the certified answers to the Court’s questions, the Fourth Circuit’s opinion

was vacated and remanded. See Virginia v. Am. Booksellers Ass’n, Inc., 488 U.S. 905

(1988). Now that the universe of possible “harmful” materials was considerably narrowed,

Virginia’s statute was constitutional because it imposed only “a minimal burden on

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booksellers and represent[ed] a constitutionally permissive exercise of the state’s police

powers.” Am. Booksellers Ass’n, Inc. v. Virginia, 882 F.2d 125, 127– 28 (4th Cir. 1989),

cert. denied, 494 U.S. 1056 (1990).

In the case at bar, there is no doubt that Section 1 is overbroad because the

Arkansas Supreme Court’s definition of “harmful to minors” is the opposite of the Virginia

Supreme Court’s. In response to the federal district court’s certified questions in Shipley,

Arkansas’s highest court explicitly rejected Virginia’s “narrow[ ]” interpretation of “harmful

to minors” and reasoned that a broad interpretation—which swept in books that would be

considered harmful to the youngest of minors—was what the Arkansas General Assembly

intended when drafting the law. The Court explained:

If the younger minors are to be protected from “harmful” materials, surely

the General Assembly did not intend for those younger children to be
permitted to access materials that would arguably be “harmful” to them,
even though not “harmful” to an older child. We cannot construe Arkansas’
statutory law in such a way as to render it meaningless, and we will not
interpret a statute to yield absurd results that are contrary to legislative
intent.

Shipley, Inc. v. Long, 359 Ark. 208, 219 (2004).

Turning back to the case at bar, this Court finds that the Arkansas Supreme Court’s

responses to the certified questions in Shipley bind the interpretation of Act 372. In so

finding, the Court disagrees with the State’s assertion that the Eighth Circuit’s decision in

Upper Midwest “control[s] here.” (Doc. 95, p. 18). First, the Upper Midwest court did not

consider whether the term “harmful to minors,” if construed broadly to include that which

was harmful to the youngest minors, would impermissibly burden speech for older minors

and adults. Instead, the court and its parties assumed that the ordinance at issue

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regulated what amounted to pornography, which is, of course, obscene as to all minors.

Second, the ordinance in Upper Midwest only applied to bookstores, whereas Section 1

applies to bookstores and public libraries and therefore affects much more protected

speech. Third, the ordinance in Upper Midwest gave clear direction to booksellers about

how to comply with the law, whereas Section 1 is devoid of any such guidance. Fourth,

the U.S. Supreme Court decided the Virginia case after Upper Midwest and considered

new questions of overbreadth that Virginia’s law prompted. The U.S. Supreme Court

decided that resolving those questions required certifying them to Virginia’s highest court.

Fifth, after the Virginia case, the Eastern District of Arkansas considered the same

overbreadth questions that had been raised in Virginia—but not in Upper Midwest—and

certified questions of statutory interpretation to Arkansas’s highest court.6

Though the State would rather this Court ignore what happened after Upper

Midwest, that bell cannot be unrung. Section 1, which incorporates the “harmful to minors”

definition that was at issue in Shipley, is as overbroad and unconstitutional now as it was

when Judge Eisele found it so. See Shipley, 454 F. Supp. 2d at 831.

Mindful of the Arkansas Supreme Court’s broad interpretation of “harmful to

minors,” the legislature could have written a definition in Act 372 that hewed more closely

to the approved restriction in Virginia—but it did not; the legislature simply incorporated

the definition of “harmful to minors” from the criminal code without adornment or

qualification. Since this term has been construed broadly by the Arkansas Supreme Court

6
Judge Eisele did the right thing. The U.S. Supreme Court held that “it [was] essential” to
“have the benefit of the law's authoritative construction from the [state’s highest court]”
before the facial overbreadth challenge could be decided. Virginia, 484 U.S. at 395.

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to mean material that is obscene to the youngest of minors, it was up to the General

Assembly to write a narrowly tailored law with this definition in mind. That did not happen,

and the law’s overbreadth should not come as a surprise to its drafters. After all, the U.S.

Supreme Court in Virginia advised that a “broader reading” of harmful to minors “would

raise correspondingly greater First Amendment questions.” 484 U.S. at 395.

Given the above, the only way librarians and booksellers will be able to comply

with Section 1 and still allow those under the age of eighteen to enter their facilities is to

keep them away from all books with sexual content. This could be done by creating strict

adults-only areas—into which would go potentially hundreds of books, from disposable

paperback romance novels to classics of literature like Romeo and Juliet, Ulysses,

Catcher in the Rye, The Handmaid’s Tale, or The Kite Runner. In other words, to avoid

criminal penalties under Section 1, librarians and booksellers must impose restrictions on

older minors’ and adults’ access to vast amounts of reading material. Creating segregated

“18 or older” spaces in libraries and bookstores will powerfully stigmatize the materials

placed therein, thus chilling adult access to this speech. See, e.g., Doc. 99-7, ¶ 5 (Farrell

Decl.) (testifying that browsing in an adults-only room “would signal to others that” she is

“interested in reading pornography”); Doc. 99-19, p. 18 (Caplinger Depo.) (describing

stigma that would attach to adults-only area of the library and implication that the books

would “not just [be] inappropriate, but somehow pornographic or obscene”).

If the General Assembly’s purpose in passing Section 1 was to protect younger

minors from accessing inappropriate sexual content in libraries and bookstores, the law

will only achieve that end at the expense of everyone else’s First Amendment rights. The

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law deputizes librarians and booksellers as the agents of censorship; when motivated by

the fear of jail time, it is likely they will shelve only books fit for young children and

segregate or discard the rest. For these reasons, Section 1 is unconstitutionally

overbroad.

ii. Vagueness

For related reasons, Section 1 is unconstitutional due to the presence of vague

terms. A law must sufficiently define terms so “that ordinary people can understand what

conduct is prohibited.” United States v. Washam, 312 F.3d 926, 930 (8th Cir. 2002).

Otherwise, those who attempt to interpret and comply with the law will “necessarily guess

at its meaning and differ as to its application.” Stephenson, 110 F.3d at 1308 (citations

and quotations omitted). Such vagueness leads to “arbitrary and discriminatory

enforcement” by “impermissibly delegat[ing] basic policy matters to [government officials]

for resolution on an ad hoc and subjective basis.” Id.

Where “the literal scope of the . . . regulation is capable of reaching expression

sheltered by the First Amendment, the [vagueness] doctrine demands a greater degree

of specificity than in other contexts.” Id. at 1308–09 (quotations and citations omitted);

see also Reno v. ACLU, 521 U.S. 844, 871–72 (1997) (with regard to a “content-based

regulation of speech[,] [t]he vagueness of such a regulation raises special First

Amendment concerns because of its obvious chilling effect on free speech”). “[T]he failure

to define the pivotal term of a regulation can render it fatally vague,” particularly where

the tools that courts regularly use to interpret imprecise terms, such as “the common

usage of statutory language, judicial explanations of its meaning, and previous

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applications of the statute to the same or similar conduct,” fail to provide necessary clarity.

Stephenson, 110 F.3d at 1309.

As the Court noted in its Preliminary Injunction Order, Section 1’s use of “present,”

“make[ ] available,” and “show” leaves librarians and booksellers unsure about whether

shelving books they know contain sexual content may subject them to criminal liability.

As for Section 1’s “knowledge requirement,” which the State believes reduces any

potential for vagueness, see Doc. 95, p. 19, the fact is that Section 1 provides no clarity

on what affirmative steps a bookseller or librarian must take to avoid a violation. The law’s

knowledge requirement could be met if a librarian or bookseller knew: (1) that a particular

book in the adult section contained sexual content and (2) that minors were not banned

from the premises. Such knowledge is not enough to cure the vagueness.

Furthermore, Section 1 remains unconstitutionally vague even if one could imagine

“some conduct that clearly falls within the provision’s grasp,” Johnson v. United States,

576 U.S. 591, 602 (2015), because the law’s undefined terms permit “arbitrary and

discriminatory enforcement,” Stephenson, 110 F.3d at 1308 (internal citations and

quotations omitted). For all these reasons, Section 1 is void for vagueness because it

would violate librarians’ and booksellers’ due process rights by subjecting them to criminal

prosecution without clearly defining the prohibited conduct.

B. Section 5: The Challenge Provision

1. Overview

Plaintiffs separately challenge Section 5 of the Act, which concerns the

“[e]stablishment of guidelines for selection, relocation, and retention of [library] materials.”

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Act 372 § 5. First, Section 5 mandates that “[e]ach county or municipal library shall have

a written policy for addressing challenged material that is physically present in the library

and available to the public.” Id. § 5(b). Many libraries already have such a policy in place,

but Section 5 establishes the minimum criteria that must be included.

Next, Section 5 explains that any “person affected by . . . material” in a library’s

collection may “challenge the appropriateness” of that material’s inclusion in the main

collection. Id. § 5(c)(1). Material subject to challenge is not limited to sexual content, and

the law does not define “appropriateness” at all. Instead, a book challenger may target

any expression of ideas that he or she personally deems inappropriate. Further, Section 5

does not require that the book challenger be a patron of the library where the challenge

is made. There is no Arkansas residency requirement either. All a challenger must do to

initiate the challenge process is meet with a librarian to discuss the grievance. Id.

§ 5(c)(3). The librarian must then provide a copy of the library’s written policy to the

challenger. Id. § 5(c)(4)(A). If the challenger is dissatisfied with the librarian’s response,

he or she must fill out a form supplied by the library to explain the nature of the grievance.

Id. § 5(c)(5). The library has discretion to decide whether to leave the book on the shelf

during the pendency of a challenge or remove it from the collection. Id. § 5(c)(2).

Once the challenger puts the grievance in writing, Section 5 states that it must be

forwarded to “a committee of library personnel” who have “knowledge appropriate for the

material being challenged” and possess “diverse viewpoints.” Id. § 5(c)(6). “The librarian

or his or her designee” may chair the committee. Id. Other than screening for

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“appropriateness,” Section 5 offers the library committee no evaluation criteria except the

following:

Material being challenged:

(i) Shall not be withdrawn solely for the viewpoints expressed within
the material; and

(ii) Shall be reviewed in its entirety and shall not have selected
portions taken out of context.

Id. § 5(c)(7)(B)(i)–(ii) (emphasis added). After the library committee meets with the

challenger, it then “vote[s] to determine whether the material being challenged shall be

relocated within the library’s collection to an area that is not accessible to minors under

the age of eighteen (18) years.” Id. § 5(c)(11)(A). However, Section 5 does not suggest

how a library would create an area “that is not accessible to minors.” And somewhat

confusingly, despite this provision, Section 5 is not limited to challenges for

appropriateness as to minors; as any book geared for any age reader could be

challenged.

After the library committee votes on the book challenge, it must send a written

summary of its decision to the challenger. If the committee segregates or “withdraw[s]”

the challenged material, the challenge ends there. But if the committee rejects the

challenge, Section 5 permits the challenger to “appeal the committee’s decision to the

governing body of the county or city” that financially supports the library “by filing a written

appeal to the executive head of the governing body of the county or city.” Id. at

§ 5(c)(12)(A).

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Governing bodies, i.e., quorum courts and city councils, are then afforded wide

latitude in reviewing the challenged material. They are only required to consider:

(1) the challenged material itself,

(2) the written challenge that was submitted to the library committee,

(3) the library committee’s written explanation for its decision, and, if submitted,

(4) the mayor’s or county judge’s recommendation.

Id. § 5(c)(12)(B)(i)–(ii). Section 5 does not require the quorum court or city council

members to adopt––or even be provided a copy of––the library’s selection criteria, nor

does it require them to read or consider the criteria. Id.

The quorum court or city council members meet to consider and vote on whether

to censor the challenged material, either by withdrawing it from the library’s main

collection or relocating it to another part of the library. Their decision is final, and Section 5

does not require the governing body to issue a written explanation for its decision. Id.

§ 5(c)(12)(C).

Plaintiffs argue that Section 5 is void for vagueness because librarians, library

patrons, members of local governmental bodies, and the public at large will have no

meaningful way to discern what sorts of materials are “appropriate,” as that undefined

term appears in Section 5, or what it means to “relocate[ ] [books] . . . to an area that is

not accessible to minors under the age of eighteen.”7 In Plaintiffs’ view, the challenge

7
Would a sign suffice, or would books need to be moved onto high shelves or behind
solid partitions? Would libraries need to construct rooms with doors within their existing
buildings to securely house adult and young adult books that could possibly be viewed
as “harmful” to younger minors (even if younger minors would likely have no interest in
these books)? Would a staff member be required to monitor the restricted area? Would

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process will invite content-based restrictions on public access to library materials without

regard to the First and Fourteenth Amendments. And since anyone—whether an

Arkansan or an out-of-state interest group—who is “affected” by a book may raise a

Section 5 challenge, libraries are likely to face exponentially more challenges than they

do currently. Book challenges now are resolved by professional librarians, but Section 5

challenges may be appealed to elected officials with discretion to decide whether a book

is “appropriate” without the benefit of procedural requirements or standards. They don’t

even have to read the books first.

Furthermore, library professionals have testified in this case that the expected

influx of challenges will overwhelm library staff, who have the option of withdrawing

challenged books from the shelves while they are under consideration. There is

undisputed record testimony that Section 5’s challenge process is likely to result in long

wait periods for patrons interested in reading challenged books.

The State responds that a book’s “appropriateness” need not be defined in

Section 5. Instead, the State encourages Plaintiffs to trust that the local governing bodies

evaluating book challenges will employ the same criteria that librarians and library

committees use, rather than invent their own criteria. After all, Section 5 does not explicitly

patrons’ driver’s licenses need to be checked prior to entry? These are reasonable
questions to ask, and each option comes with a steadily increasing price tag. Section 5
offers no guidance, which means the most restrictive of the options—which is also the
safest to avoid criminal prosecution under Section 1—is the one librarians are most likely
to implement, burdening the most speech. These restrictive options also go far beyond
anything the Eighth Circuit approved in Upper Midwest (wrapping pornographic
magazines in opaque covers) and the Tenth Circuit sanctioned in M.S. News (placing
pornography behind blinder racks).

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encourage local governing bodies to ban books or discriminate based on viewpoint, and

the State insists it is well within its authority to expand cities’ and counties’ power to shape

or control their public library collections.

2. Standing and Ripeness

The State contends that Plaintiffs’ injuries under Section 5 depend on “a five-step

hypothetical that supposedly establishes an injury in fact.” (Doc. 95, p. 11). According to

the State, the only injuries Section 5 could possibly inflict on patrons of public libraries

would flow from the written selection/challenge policies of the libraries themselves—which

is a problem for Plaintiffs because public libraries are not the defendants in this case.

However, this argument ignores the fact that under Section 5, it is the local quorum court

or city council that has the final, unappealable say as to the “appropriateness” of a

challenged library book already on the shelves, and Section 5 does not require the

reviewing governmental body to adopt or even be provided a copy of the library’s selection

criteria. See Act 372 § 5(c)(12)(B)(i)–(ii).

Moreover, by prescribing mandatory procedures for evaluating challenges,

Section 5 actually prevents libraries from relying on policies that many have successfully

used to be responsive to patron feedback, including negative feedback, without allowing

an overwhelming number of challenges or letting the views of a vocal few dictate what is

generally available to the public. See Doc. 99-6, ¶ 18 (Danos Decl.); Doc. 99-17, ¶¶ 27,

31 (Webb Decl.). That success is owed, in part, to the reasonable limits that libraries have

set on reconsideration requests, such as requiring that requesters have a current library

card and/or live in the library’s service area. See Doc. 99-17, pp. 34–38 (Garland County

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Library Materials Reconsideration Policy); Doc. 99-10, pp. 8–9 (Fayetteville Public Library

Reconsideration Policy). Section 5 prevents libraries from imposing such reasonable

limits. This leads the Court to conclude that Plaintiffs have a non-speculative fear that

even a small number of vocal activists will be able to use Section 5 to substantially

increase the volume of challenges to library materials.

Many libraries already have extensive written policies in place to guide the

acquisition and retention of library books. See, e.g., Docs. 93-2 (Central Arkansas Library

System Selection Criteria), 93-3 (Fayetteville Public Library Selection Criteria), 93-4

(Eureka Springs Carnegie Public Library Selection Criteria). They are guided by common,

overarching goals that are in line with the First Amendment.8 For example, the Central

Arkansas Library System states in its written policy that it strives “to provide a balanced

and broad collection of materials and resources in varied formats to enlighten, inform,

entertain, and empower the diverse community,” (Doc. 93-2, p. 1); Fayetteville Public

Library offers “a collection of materials that is diverse, inclusive, and protected by the First

Amendment of the United States Constitution and the Arkansas State Constitution,” (Doc.

93-3, p. 2); and Eureka Springs Library explicitly “subscribe[s] to the book selection

principles contained in the Library Bill of Rights adapted by the American Library

Association,” while recognizing “that many books are controversial and that any given

item may offend some patrons,” (Doc. 93-4, p. 1).

8
The Court previously described the American Library Association, the ALA’s Code of
Ethics and Library Bill of Rights, the training that professional librarians receive, and the
historical significance and mission of public libraries in America in the introductory section
of the Preliminary Injunction Order. See Doc. 53, pp. 6–12. For brevity, this discussion is
not included here, but it provides helpful context.

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But Section 5 hampers the ability of libraries to efficiently respond to frivolous,

repeated, or overbroad requests, which they expect to increase if the provision takes

effect. See Doc. 99-17, ¶ 30 (Webb Decl.). Section 5 requires library committees to

“review[ ] [challenged material] in its entirety,” Act 372 § 5(c)(7)(B), even if the work has

been previously challenged or is challenged for improper purposes. However, a similar

level of scrutiny is not required of elected officials at the next stage of the challenge

process, see id. § 5(c)(12).9 Further, the library committee’s knowledge that its decision

will be appealed to those tasked with funding decisions is not an insignificant factor and

is likely to chill even more protected speech. See Doc., 99-23, p. 14 (Keith Depo.)

(acknowledging that library staff is likely to “take into consideration” how the local

governing body will decide the appeal).

Importantly, once a challenge is appealed to the local governing body, Section 5

provides no criteria whatsoever to guide the censorship decision. Instead, elected officials

are free to decide on any basis they choose whether a challenged work should be

9
Not only will the unlimited challenges invited by Section 5 impose a crushing burden on
library staff, but there is at least a possibility, if not a likelihood, that librarians will
preemptively withdraw frequently challenged books from the collection while they are
under review, further chilling patron access to constitutionally protected speech. The
State admits in its summary judgment response brief that carefully reviewing multiple
challenged books would be a time-consuming and “unduly burdensome” affair. (Doc. 107,
p. 3). During discovery, Plaintiffs identified ninety-seven books they feared would be
challenged under Section 5 and asked the prosecutors to “read and evaluate” them “and
answer multiple interrogatories” over a short period of time. Id. at pp. 3–4. Once the State
objected, Plaintiffs sent a revised list of only twenty books to read in one business day;
needless to say, again the prosecutors balked, citing undue burden. See id. The State
does not appear to recognize that librarians across Arkansas would face the same sort
of burdens on their time and resources if Section 5 went into effect, as the record evidence
shows.

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relocated to a segregated section of the library or eliminated from the collection entirely,

without providing any justification to the public at large. See id. § 5(c)(7)(B)(i). The injury

that Section 5’s challenge procedure will visit upon patrons of Arkansas’s public libraries

is real and immediate. Section 5 removes final censorship decisions from public libraries

and the professionals who run them and places them into the hands of local governing

bodies whose members lack training and experience in these matters and are not

bounded by similar selection constraints.

There is one final piece of evidence to consider on the matter of standing—and it

is a compelling one. In December 2022, shortly before Act 372 was signed into law,

Crawford County’s quorum court threatened “to defund the Library if its director did not

find a way to satisfy constituents’ concerns about books” with LGBTQ themes. Virden v.

Crawford Cnty., Case No. 2:23-CV-2071, ECF 105, p. 3 (W.D. Ark. Sept. 30, 2024). These

books, and perhaps others with unpopular or controversial themes, were removed from

general circulation and placed in a separate section of the library. Id. On September 30,

2024, the Honorable P.K. Holmes, III, United States District Judge for the Western District

of Arkansas, enjoined Crawford County’s actions as unconstitutional and violative of the

library patrons’ First Amendment rights. See id. In so ruling, Judge Holmes observed that

“public libraries have an obligation not to stigmatize disfavored viewpoints that are already

in their collection.” Id. at p. 9. He ordered the books returned to general circulation. Id.

This Court remains satisfied that Crawford County library patrons Plaintiffs Miel

Partain (in her individual capacity and as next-friend of her minor daughter, Madeline

Partain) and Leta Caplinger have standing to sue the Crawford County Defendants to

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prevent enforcement of Section 5. Their injuries are not hypothetical, and their challenge

is ripe for judicial review.10

3. Constitutional Analysis

i. Vagueness

Section 5’s pivotal term, “appropriateness,” is susceptible to multiple

interpretations and all but guarantees that the challenge process will result in the

withdrawal or relocation of books based on their content or viewpoint. As stated, any

book, even one written for an adult reader, could be deemed “inappropriate” and subject

to challenge under Section 5.

Though the State asks that Plaintiffs have faith that Arkansas’s local elected

officials will preserve, protect, and defend their First Amendment rights, the Court’s view

of the matter is not quite so sanguine—particularly given the cautionary tale that the

Virden case presents. There, quorum court members directed the librarian to move

children’s books out of the children’s section into a separate area they euphemistically

10
County Defendants fail to confront the merits of Plaintiffs’ challenge to Section 5 on
summary judgment. Instead, their sole argument is that Plaintiffs lack standing to sue
them because their lawsuit seeks statewide relief from Section 5, which Crawford County
cannot provide. They suggest Plaintiffs should have sued the State of Arkansas (or
perhaps all the counties and cities in the State). This argument is easily dispensed with.
First, Crawford County Defendants cannot deny that the issuance of a permanent
injunction would provide the Plaintiffs–who are Crawford County library patrons–complete
relief with respect to their Section 5 injuries. See Pharm. Rsch. & Mfrs. of Am. v. Williams,
64 F.4th 932, 940 (8th Cir. 2023) (“[A] plaintiff satisfies the redressability requirement
when he shows that a favorable decision will relieve a discrete injury to himself. He need
not show that a favorable decision will relieve his every injury.” (quoting Larson v. Valente,
456 U.S. 228, 243 n.15 (1982))). Second, it is safe to assume that all counties and cities
across Arkansas “would abide by an authoritative interpretation of the [law] . . . even
though they would not be directly bound by such a determination.” Franklin v.
Massachusetts, 505 U.S. 788, 803 (1992).

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named “the social section.” Judge Holmes found it “indisputable that the creation and

maintenance of the social section was motivated in substantial part by a desire to impede

users’ access to books containing viewpoints that are unpopular or controversial in

Crawford County.” Virden, Case No. 2:23-CV-2071, ECF 105, p. 5.

Tellingly, when a Crawford County Library Board member was asked under oath

why the books were moved to the social section, his answer was that the books were

“inappropriate.” Id. at p. 7. And County Judge Keith, who under Section 5 would be

required to “present” to the quorum court all books “being challenged,” Act 372

§ 5(c)(12)(B)(i), testified in his deposition that he did not know what “appropriate” meant

in the context of Section 5 but guessed it could mean “different thing[s] for different

people,” (Doc. 99-23, p. 13).11

In the absence of a statutory definition of “appropriateness,” the Court turns to the

dictionary, which defines it as “the state of being suitable for a particular person, condition,

occasion or place.” Appropriate, The American Heritage Dictionary (New College Ed.

1976). Given this definition, it is difficult, if not impossible, to assess a challenged book’s

“appropriateness” without considering its content, message, and/or viewpoint. In fact,

Section 5 specifically contemplates that a library review committee or local governmental

body consider the material’s “viewpoint.” See Act 372 § 5(c)(7)(B)(i). The law cautions

only that a book should not be withdrawn from the library’s shelves “solely for the

viewpoints expressed within the material.” Id. (emphasis added). Section 5 is

11
The Court is not picking on County Judge Keith here. He is by no means the only county
or city official who will have no clue what “appropriate” means if Section 5 takes effect.

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constitutionally infirm because it “fail[s] to define the [key] term at all, and, consequently,

fails to provide meaningful guidance for those who enforce it.” Stephenson, 110 F.3d at

1310.

Other important terms in Section 5 are similarly vague. The statute uses both

“withdraw” and “relocate” with respect to challenged books. See id. §§ 5(c)(7)(B)(i),

(c)(11)(A). Obviously, withdrawing a book from the library’s collection would pose a

greater burden on access to protected speech than relocating the book to another section

of the library, but Section 5 presents both options as though they were equivalent.

Moreover, if a library committee or local governmental body elected to relocate a book

instead of withdrawing it, Section 5 contemplates moving the book “to an area that is not

accessible to minors under the age of eighteen (18) years”—without defining what

“accessible to minors” means. Id. § 5(c)(11)(A). If Section 5 were to take effect, libraries

would have to guess what level of security would be necessary to satisfy the law’s

“[in]accessib[ility]” requirements. For all of these reasons, the Court finds that Section 5

fails the “stringent vagueness test” that applies to a law that interferes with access to free

speech. Video Software Dealers Ass'n v. Webster, 968 F.2d 684, 689–90 (8th Cir. 1992).

ii. Content-based Restrictions

In addition to its vague terms, Section 5 is unconstitutional because it

unnecessarily imposes content-based restrictions on protected speech. The challenge

procedure in Section 5 merits strict scrutiny. At each step in the appeal process,

evaluators must consider the content of the library material to screen for

“appropriateness” before deciding whether the public should be deprived access to the

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material.12 Therefore, any successful challenge would result in a content-based restriction

on otherwise constitutional speech—unless the challenged book met the legal definition

of obscenity, which city governments are not required to consider.

“[L]aws that by their terms distinguish favored speech from disfavored speech on

the basis of the ideas or views expressed are content based,” and the courts “apply the

most exacting scrutiny to regulations that suppress, disadvantage, or impose differential

burdens on speech because of its content.” Turner Broadcasting Sys., Inc. v. F.C.C., 512

U.S. 622, 642–43 (1994). “Content-based laws—those that target speech based on its

communicative content—are presumptively unconstitutional and may be justified only if

the government proves that they are narrowly tailored to serve compelling state

interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

If Section 5 is intended to protect minors, it is not narrowly tailored to that purpose.

Nor is Section 5 limited to reading material that is obscene or “harmful to minors,” which

will significantly burden constitutionally protected speech. And even if the Court limited

12
It is important to note that even with respect to obscenity, the Supreme Court has not
suggested “that the question of the value of an allegedly obscene work is to be determined
by reference to community standards.” Pope v. Illinois, 481 U.S. 497, 499 (1987). A work’s
“value” is not subject to the artistic tastes, religious sensibilities, or “morality” of a given
community.

Just as the ideas a work represents need not obtain majority approval to
merit protection, neither, insofar as the First Amendment is concerned, does
the value of the work vary from community to community based on the
degree of local acceptance it has won. The proper inquiry is not whether an
ordinary member of any given community would find serious literary, artistic,
political, or scientific value in allegedly obscene material, but whether a
reasonable person would find such value in the material, taken as a whole.

Id. at 500–01.

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“appropriateness” to mean “harmful to minors,” this change would raise the same issues

discussed with respect to Section 1. In the context of a public library, the term “harmful to

minors” would sweep in materials that are constitutionally protected as to older minors

and adults and place unjustified burdens on their access.

The State’s defense of Section 5 boils down to an argument that censorship of

otherwise constitutionally protected speech is acceptable because every selection

decision that affects a public library’s collection—from the original purchase of materials

by librarians, to the books’ sequestration on special shelves or behind locked doors, to

their outright removal from the collection—is “government speech” not subject to

constitutional scrutiny. See Doc. 107, pp. 16–17. But Section 5 has nothing to do with the

library’s curation decisions, so if indeed such decisions constitute government speech,

the State’s arguments in that regard are unavailing. First of all, no one is arguing that

librarians are violating their patrons’ First Amendment rights through curation decisions.

Secondly, burdening access to books within a public library collection or removing books

from that collection due to content or viewpoint—which Section 5 permits, if not

encourages here—implicates the First Amendment and does not qualify as protected

government speech.13

“The right of freedom of speech . . . includes not only the right to utter or to print,

but the right to distribute, the right to receive, the right to read and freedom of

13
Just six months ago, the Eighth Circuit held that in the context of public school
libraries—which are subject to more government restriction than public community
libraries—“it is doubtful that the public would view the placement and removal of
books . . . as the government speaking.” GBLT Youth in Iowa Schs. v. Reynolds, 114 F.4th
660, 668 (8th Cir. 2024).

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thought . . . .” Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (emphasis added and

citation omitted). “[T]he State may not, consistently with the spirit of the First Amendment,

contract the spectrum of available knowledge.” Griswold, 381 U.S. at 482. And when it

comes to children, it is well established that “minors are entitled to a significant measure

of First Amendment protection” that the government may restrict “only in relatively narrow

and well-defined circumstances,” which are not present here. Erznoznik v. City of

Jacksonville, 422 U.S. 205, 212–13 (1975). It is also well established that “[s]peech that

is neither obscene as to youths nor subject to some other legitimate proscription cannot

be suppressed solely to protect the young from ideas or images that a legislative body

thinks unsuitable for them.” Id. at 213–14. Finally, when it comes to public spaces, like

public libraries, “the governmental interest in protecting children from harmful

materials . . . does not justify an unnecessarily broad suppression of speech addressed

to adults.” Reno, 521 U.S. at 875.

The Court therefore concludes that Plaintiffs have established as a matter of law

that Section 5 would permit, if not encourage, library committees and local governmental

bodies to make censorship decisions based on content or viewpoint, which would violate

the First Amendment. “If there is a bedrock principle underlying the First Amendment, it

is that the government may not prohibit the expression of an idea simply because society

finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414

(1989). For the above reasons, Plaintiffs have prevailed on their claim that Section 5

works an unconstitutional content-based restriction on protected speech.

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III. CONCLUSION

As the Supreme Court has noted, “even a law with ‘a plainly legitimate sweep’ may

be struck down in its entirety,” provided that its “unconstitutional applications substantially

outweigh its constitutional ones.” Moody v. NetChoice, LLC, 603 U.S. 707, 723–24

(2024). Here, it is clear that there is no set of circumstances under which Sections 1 and

5 would be valid. The State has made no attempt to tailor Section 1 based on the

Arkansas Supreme Court’s interpretation of “harmful to minors,” though the State has

been on notice of the broad sweep of this definition since 2004. Similarly, Section 5

contains multiple undefined terms that invite censorship decisions on the basis of content.

Plaintiffs are therefore entitled to a declaratory judgment that Sections 1 and 5 of

Arkansas Act 372 are unconstitutional, void, and of no effect.

IT IS ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc. 99) is

GRANTED, and Defendants’ Motions for Summary Judgment (Docs. 90 & 93) are

DENIED. Defendants are PERMANENTLY ENJOINED from enforcing Sections 1 and 5

of Act 372.

Judgment will enter contemporaneously with this decision. If Plaintiffs wish to file

a motion for attorneys’ fees, they should do so by January 17, 2025.

IT IS SO ORDERED on this 23rd day of December, 2024.

_____________________________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE

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