Federal Judge Strikes Down Unconstitutional Arkansas Book Ban Law

Free Speech

from the killing-freedom-'for-the-children' dept

Like far too many legislators, Arkansas politicians have decided it’s time to codify irrational hatred. To do this, they pretended they had a sudden and urgent new obligation to protect “the children” harder than they’ve ever been protected before against the encroachment of alternative viewpoints.

Like far too many other states, the Arkansas government piggy-backed on existing obscenity laws to declare content they personally didn’t like as “obscene.” Then they went further, saddling librarians at public libraries with civil and criminal penalties for not doing enough censorship.

And, like many similar hateful efforts, this codification of hatred hit a dead end in a federal court. Public library plaintiffs managed to secure a temporary injunction blocking Arkansas’ book ban from being enforced last summer. The catch was this: the law would remain blocked only until the government presented its revised case for expanded censorship. If it could demonstrate it had a legitimate government interest in banning books these legislators felt were harmful to kids, the law could go back into force.

However, it if couldn’t demonstrate this, the association of librarians and libraries would be free to continue running their libraries without government interference — something they had done for years before Donald Trump took office in 2016 and ushered in an extremely ugly era of so-called “conservatism.” Since then, book challenges and book bans have become a day-to-day occurrence in the Land of the Free. And all at the hands of the party that swears it’s here to beat back censorship.

This is not the only lawsuit the government of Arkansas is facing. Another one, filed by parents arguing the First Amendment right of access is harmed by the government forcibly moving some content to “adult only” areas of libraries (and, of course, this content is almost always targets LGBTQ+ authors and/or content critical of America’s long history of racism) is still ongoing.

But this one has reached its expected end, as the Associated Press reports:

A federal judge on Monday struck down key parts of an Arkansas law that would have allowed criminal charges against librarians and booksellers for providing “harmful” materials to minors.

U.S. District Judge Timothy Brooks found that elements of the law are unconstitutional.

As is unfortunately usual, the Associated Press seems able to access court rulings, but is unwilling to share the rulings with their readers.

Here’s the full opinion [PDF], courtesy of me: a guy who not only donates to RECAP, but also knows how to search it.

The entire law — one ushered into existence with a signature presumably scrawled in crayon by Governor (and former Donald Trump PR flack) Sarah Huckabee Sanders — has not been blocked. Small parts of it survive. But the mandates criticized in the court’s original grant of an injunction are no longer on the table.

Here’s what the court had to say about the law in its first ruling:

The vocation of a librarian requires a commitment to freedom of speech and the celebration of diverse viewpoints unlike that found in any other profession. The librarian curates the collection of reading materials for an entire community, and in doing so, he or she reinforces the bedrock principles on which this country was founded. According to the United States Supreme Court, “Public libraries pursue the worthy missions of facilitating learning and cultural enrichment.”

[…]

The librarian’s only enemy is the censor who judges contrary opinions to be dangerous, immoral, or wrong.

The public library of the 21st century is funded and overseen by state and local governments, with the assistance of taxpayer dollars. Nonetheless, the public library is not to be mistaken for simply an arm of the state. By virtue of its mission to provide the citizenry with access to a wide array of information, viewpoints, and content, the public library is decidedly not the state’s creature; it is the people’s.

And here’s what it’s saying now, as it declares going after libraries and librarians unconstitutional.

[B]y 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.

And this imposition — especially when tied to civil and criminal penalties — cannot possibly be considered constitutional, not with this amount of damage being done to the First Amendment. The government can’t argue that censorship like this is something beyond the reach of free speech jurisprudence by pretending it falls outside of these protections. (Emphasis in the original.)

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.

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.

Summing it all up, the court says two clauses of the book ban law are null and void under the US Constitution.

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.

The permanent injunction is in place. The state can continue to enforce what’s left of the law, but what’s left of it isn’t going to allow these bigoted legislators to achieve their aims of wiping libraries of content they don’t like. I imagine they’ll try to rewrite the law. But if they couldn’t do it right the first time, it’s unlikely they’ll find a legally credible basis for mass censorship the second time around. Unfortunately, the nation is loaded with bigots, including a sizable voting bloc that keeps electing bigots for the sole purpose of imposing their viewpoints on every other Arkansas resident unfortunate enough to share the state with them.

What’s been struck down here will be resurrected. But, at this point, there’s still no way the government can make it stick. But with Donald Trump returning to office with a boatload of shameless lackeys in tow, who knows what the Constitution will look like a half-decade from now.

Filed Under: 1st amendment, arkansas, book ban, booksellers, censorship, for the children, free speech, libraries, obscenity, sarah huckabee sanders