Court Grants Preliminary Injunction Barring Implementation of Arkansas Act 372

Court Grants Preliminary Injunction Barring Implementation of Arkansas Act 372

Upholds First Amendment Rights of Booksellers, Libraries, Publishers, Authors, and Readers in Commanding Opinion

The American Booksellers Association, in conjunction with WordsWorth Books, Pearl’s Books, and other coalition partners recently learned that they have cleared the first hurdle for the successful defense of the Freedom to Read in Arkansas. Allison Hill, ABA CEO, said this: “The judge’s decision to grant a preliminary injunction is a win for the the constitutional rights of Arkansas readers and bookstores.There’s a lot at stake in the final decision — the rights of readers, the precedent for vague and unconstitutional laws, and the risk of infringement of Arkansans’ First and Fourteenth Amendment rights — but we respect the due process that will follow the judge’s decision and we remain hopeful that ultimately the law will be overturned.”     

Today, The U.S. District Court for the Western District of Arkansas granted a Preliminary Injunction, barring the implementation of two provisions of Arkansas Act 372. One provision would have subjected librarians and bookstore owners to criminal prosecution if books meant for older minors and adults were accessible to the youngest minors. The other would have mandated a challenge procedure in public libraries whereby individuals may challenge books based on “appropriateness” (an undefined term not based on constitutional standards). Review boards would have been allowed or even invited to engage in viewpoint and content-based discrimination. The ruling came in response to the suit filed by the earlier mentioned coalition of plaintiffs that includes expert policy organizations as well as local Arkansas libraries, booksellers, and readers. The bill was signed by the Governor of Arkansas on March 30, 2023, and had been slated to go into effect on August 1.

Excerpts from the Order and Opinion

• The Bill of Rights to the United States Constitution guarantees the right of every American to speak freely and to receive speech. This freedom of speech, codified in the First Amendment, is enjoyed by everyone — even children…[although] minors’ First Amendment rights are limited in some way.
• While these boundaries are not clearly defined in law, common sense tells that “[i]n assessing whether a minor has the requisite capacity for individual choices, the age of the minor is a significant factor” (quoting the U.S. Supreme Court in Erznoznik v. City of Jacksonville [1975]). Obviously a seven-year-old’s capacity is far different from that of a seventeen-year-old.
• Complying with the Act would likely impose an unnecessary and unjustified burden on any older minor’s ability to access free library books appropriate to his or her age and reading level. It is also likely that adults browsing the shelves of bookstores and libraries with their minor children would be prohibited from accessing most reading materials appropriate for an adult…The breadth of this legislation and its restrictions on constitutionally protected speech are therefore unjustified.
• Section 5 of the Act is very poorly drafted…Perhaps any vagueness may be chalked up to the General Assembly’s haste to enact [it], but the lack of clarity seems to have been by design. After all, by keeping the pivotal terms vague, local governing bodies have greater flexibility to assess a given challenge, however they please rather than how the Constitution dictates.”
• After extensive briefing and a day-long hearing, the Court cannot discern what compelling state interests justify Section 5…If the law is intended to protect minors, it is not narrowly tailored to that purpose. Nor is [it] limited to reading material in public libraries that is obscene or “harmful to minors,” which makes the law likely to significantly burden constitutionally protected speech. 
• School children “have a First Amendment right to receive information and…school officials are prohibited from exercising their discretion to remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion” (quoting the U.S. Supreme Court’s opinion in Board of Education, Island Trees Union Free School District Number 26 v. Pico [1982]).
• Plaintiffs will suffer irreparable harm if a preliminary injunction is not granted. No legal remedy exists that could compensate Plaintiffs for their loss of protected constitutional rights. “Loss of First Amendment freedoms, even for minimal periods of time, constitute(s) irreparable injury.” (Quoting the U.S. Supreme Court in Elrod v. Burns [1976].)

The complete list of plaintiffs include: Carol Coffey, President of the Arkansas Library Association; Nate Coulter, Executive Director of the Central Arkansas Library System; Allison Hill, the CEO of the American Booksellers Association; Maria Pallante, President and CEO of the Association of American Publishers; Mary Rasenberger, CEO of the Authors Guild; Deborah Caldwell- Stone, the Executive Director of the Freedom to Read Foundation; Jeff Trexler, the Director of Comic Book Legal Defense Fund; Pearl’s Books; Kandi West, Lia Lent and Lynne Phillips, owners of WordsWorth Books; and Adam Webb.