A law backed by Arkansas Gov. Sarah Huckabee Sanders that subjects librarians and booksellers to prosecution for providing “harmful” material to minors was set to take effect Tuesday. But it ran into a problem: the First Amendment.
That’s according to the federal judge who halted sections of the law from taking effect while litigation plays out, finding they likely fall short under the Constitution.
So, what does the statute do and why is it likely unconstitutional?
Sanders, the former Trump White House press secretary, signed Arkansas Act 372 into law in March. It established a new misdemeanor offense of “furnishing a harmful item to a minor,” which is violated by one who “furnishes, presents, provides, makes available, gives, lends, shows, advertises, or distributes to a minor an item that is harmful to minors.”
One problem with the law is that it’s too broad. Minors cover anyone under 18, so the only way for libraries and bookstores to comply would be to keep all minors away from any material with any amount of sexual content.
“This 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,” the judge, Timothy Brooks, wrote in his opinion published Saturday.
The Barack Obama appointee noted it’s “also likely that adults browsing the shelves of bookstores and libraries with their minor children would be prohibited from accessing most reading material appropriate for an adult—because the children cannot be near the same material for fear of accessing it.”
He concluded the “breadth of this legislation and its restrictions on constitutionally protected speech are therefore unjustified.”
The law’s vagueness is also constitutionally problematic.
Specifically, in that its use of the terms “presents,” “makes available” and “shows” leaves librarians and booksellers “unsure about whether placing books known to contain sexual content on the bookshelves may subject them to liability once a minor walks through the front door,” Brooks wrote. The judge observed there’s “no clarity on what affirmative steps a bookseller or librarian must take to avoid a violation.”
Picking apart another aspect of the law, the judge sitting in the Western District of Arkansas pointed to the procedure by which anyone “affected” by a book can challenge its placement in the library on the grounds of it being “inappropriate.”
It’s “very poorly drafted,” Brooks observed. “Perhaps any vagueness may be chalked up to the General Assembly’s haste to enact Act 372, but the lack of clarity seems to have been by design,” he surmised. “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.” Whatever the law’s motivation, the judge found it 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.” These seemingly commonsense points are refreshing amid the nationwide Republican book ban craze. But the state is apparently undeterred, with Arkansas Attorney General Tim Griffin, telling the Arkansas Times: “We are reviewing the judge’s opinion and will continue to vigorously defend the law.” One would think the lawman should want to thoroughly review the judge’s opinion before deciding whether to continue vigorously defending the constitutionally suspect law. Indeed, such a review could lead Republicans back to the drawing board on the “very poorly drafted” statute. Though, in keeping with the spirit of the state law, it might be more fitting for them not to read the opinion first.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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