Sarah Huckabee Sanders, then the White House press secretary, reads a children’s book during the 2018 White House Easter egg roll (screengrab via YouTube).
A federal judge quoted the book “Fahrenheit 451” in a ruling Saturday as he blocked Arkansas’ new law that would have allowed authorities to criminally prosecute and jail librarians who loaned children books that the state deems “harmful to minors.”
Gov. Sarah Huckabee Sanders (R) signed Act 372 into law in March. It requires individuals to adhere to a strict procedure of challenging books bans and punishes violations with up to six years in prison or fines of $10,000.
U.S. District Judge Timothy L. Brooks, a Barack Obama appointee, issued a preliminary injunction blocking the law just two days before it was set to go into effect. Brooks’ order was in favor of the plaintiffs, a group of bookstores, libraries, and individuals in Little Rock, Fayetteville, and Eureka Springs, who argued that the law unconstitutionally requires them to remove all books from their young adult and general collections that mention sex or sexual conduct, or else ban all minors from entering their spaces.
“‘There is more than one way to burn a book. And the world is full of people running about with lit matches.’ –Ray Bradbury, author of Fahrenheit 451,” Brooks wrote atop his 49-page ruling.
Brooks made it clear that more than books are at stake:
Act 372 targets more than just books. See 2023 Ark. Acts § 1(a)(4)(B)(i) (defining a broad category of media subject to the Act, including books, magazines, motion pictures, photographs, articles, and recordings). However, throughout this Opinion, the Court will refer to the law’s treatment of books, specifically, for the purpose of providing the reader with a concrete example when discussing the statute’s impact.
Brooks said the law was unnecessary as Arkansas already criminalizes providing obscenity to minors. Librarians acting within the scope of their jobs, however, do not typically risk punishment for the routine handling of books.
Given the widened scope of Arkansas’ new law, Brooks denounced it as a troubling statement of mistrust of librarians:
So, the passage of Act 372 prompts a few simple, yet unanswered questions. For example: What has happened in Arkansas to cause its communities to lose faith and confidence in their local librarians? What is it that prompted the General Assembly’s newfound suspicion? And why has the State found it necessary to target librarians for criminal prosecution?
Brooks contrasted Arkansas’ current targeting of librarians to the profound respect the nation’s founders had for librarians and their role in maintaining democracy:
Our founding fathers understood the necessity of public libraries for a well-functioning democracy. Benjamin Franklin is widely credited with founding the country’s first lending library in 1731. After the British burned Washington’s congressional library during the War of 1812, Thomas Jefferson sold his personal collection of 6,487 books to start what is now the Library of Congress. He famously said, “I have often thought that nothing would do more extensive good at small expense than the establishment of a small circulating library in every county.”
Brooks ruled that Arkansas’ law likely violated the plaintiffs’ First Amendment rights because it did not meet the “heavy burden” of passing constitutional muster. Regulations of protected speech must pass the highest legal standard, known as “strict scrutiny,” which requires that they are narrowly tailored to accomplish a compelling state interest. Brooks found at this preliminary stage of the case that the law was not narrowly tailored enough to accomplish the task for protecting minors, and said the law was deficient as “a poorly defined method to challenge the ‘appropriateness’ of a book, be it a children’s book or an adult book.”
Brooks said the law was both overbroad and vague. He also explained the underlying concerns of the nation’s founders which motivated the drafting of the First Amendment:
Our founding fathers understood that “novel and unconventional ideas might disturb the complacent”; yet in authoring the First Amendment, they sought “to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance.” Martin v. City of Struthers, 319 U.S. 141, 143 (1943).
The judge also pointed out a particularly problematic aspect of Arkansas’ law — that it exposes not just librarians, but also booksellers and even parents to criminal liability for showing materials to minors that might be deemed “harmful.”
“Arguably, if a parent were to act as a straw buyer or borrower of a book that is deemed harmful to a young minor, criminal liability would attach if the parent then provided the material to his 17-year-old child,” Brooks wrote.
Brooks also offered another example of the law’s overbreadth:
Take for example, a paperback romance novel, which contains descriptions of sex. It is unlikely young minors would be interested in reading such a book, but if for some reason it were “made available” to them in bookstores or libraries, booksellers and librarians could possibly face 36 penalties—depending on how that term was construed.
Given that the law would pose such risk to librarians and booksellers, their only choice would be to restrict any book with any amount of sexual content — which would be daunting, impractical, and ultimately, chilling. Similarly, Brooks said the law was too vague, in that “[a]ny book could be challenged by any member of the public who believed it was ‘[in]appropriate’ for minors.”
Nate Coulter, executive director of Central Arkansas Library System, one of the plaintiffs in the case, hailed the decision.
“As folks in southwest Arkansas say, this order is stout as horseradish!” Coulter said.
Arkansas Attorney General Tim Griffin has not announced yet whether he will appeal Brooks’ ruling, but promised to continued to “vigorously defend the law.”
Book bans in public libraries, including school libraries, necessarily raise First Amendment issues, and the U.S. Supreme Court has yet to definitively settle the issue. A 1982 Supreme Court ruling found that a public school board’s content-based book ban violated the First Amendment, but that plurality decision left the legalities of book bans unclear, at best. In recent years, several Republican-led states have exploited any legal uncertainty by passing laws similar to the Arkansas statute.
According to the American Library Association, censors targeted a record 2,571 titles in 2022 — a 38% increase over the prior year. Many of the books banned are stories by and about racial minorities and the LGBTQ+ community.
In response to these efforts to suppress certain titles, some states, such as Illinois, have begun the process of prohibiting book bans altogether.
You can read the full ruling here.
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