State of Arkansas and Crawford County sued over library obscenity law

The Central Arkansas Library System and 17 other plaintiffs filed a federal lawsuit Friday against both the state and Crawford County, alleging that two sections of a new law that directly affects library operations are unconstitutional.

Act 372 of 2023 alters libraries’ material reconsideration processes and creates criminal liability for librarians who distribute content that some consider “obscene” or “harmful to minors.” Gov. Sarah Huckabee Sanders signed the law in March, and it is set take effect Aug. 1.

The lawsuit claims Act 372 “imposes a content-based restriction on speech,” “fails to provide clear notice as to what acts are criminalized,” and gives “unfettered discretion to quorum courts and city councils to decide whether materials are ‘appropriate’ without any definite procedural safeguards or standards.”

These portions of the law therefore violate the First Amendment right to freedom of expression and the Fourteenth Amendment right to due process, according to the complaint filed in U.S. District Court for the Western District of Arkansas.

Proponents of Act 372 have said no one under 18 should be able to access content pertaining to racism, sexual activity and LGBTQ+ topics, calling it “indoctrination.” Opponents of the law say this content reflects the community and that restricting access amounts to censorship.

Individual library systems in Arkansas, including the one in Crawford County, have experienced community backlash against the presence of  books with those topics on library shelves.

The plaintiffs suing over Act 372 seek preliminary and permanent injunctions on the challenged provisions and an eventual declaration that they are unconstitutional.

“Arkansas knows that it cannot directly prohibit libraries and booksellers from making books and other items available to their patrons and customers on such a sweeping basis, as its prior attempt to limit the availability of material deemed harmful to minors (in a nearly identical law) was struck down by an Arkansas federal court,” the complaint states.

The “nearly identical law” in question banned displays of reading material deemed “harmful to minors.” Sanders’ father, then-Gov. Mike Huckabee, signed the law in 2003, and it was struck down in 2004.

The lawsuit names the prosecuting attorneys in each of Arkansas’ 28 judicial districts as defendants. Crawford County and its county judge, Chris Keith, are also defendants in light of an ongoing conflict between county government and members of the public about the availability of certain library books, the complaint states.

“Chilling effect”

Act 372 states that anyone will be allowed to “challenge the appropriateness” of public libraries’ offerings. All Arkansas libraries have existing policies to address challenges from the public, and those policies will have to be altered to comply with the new law. Such policies have rarely been used in the past, the Advocate reported in May.

Under Act 372, a committee of five to seven people selected by head librarians would review challenged material and vote in a public meeting on whether to keep it where it is currently shelved or relocate it to an area of the library that minors cannot access.

The plaintiffs argue that what is harmful to a younger minor might not be harmful to an older minor “based on their developmental maturity.”

“This will necessarily force libraries and bookstores to confine to a secure “adults only” area — and so to segregate from their general patrons and customers — any item that might be deemed harmful to the youngest minor, even if there is no constitutional basis for limiting its availability to older minors or adults,” the lawsuit states. “Where libraries and booksellers lack the space or resources to construct ‘adults only’ areas, their only choice will be to remove all materials which might be deemed harmful to their youngest, least developed patrons or customers.”

Creating “adults only” sections of libraries and bookstores would prevent parents from entering if their children are too young to be left unattended, the complaint states.

The sections would also discourage adults from accessing books in those spaces because the books would be “stigmatized and less attractive to many readers,” according to the complaint.

A library might have only one copy of a challenged book and “be forced to purchase additional copies or the book will be unavailable to patrons” while a committee is handling the challenge.

Additionally, if the majority of the committee votes not to relocate the material, the complainant may appeal the committee’s decision. Local elected officials would hear appeals and have the final say on whether the material should remain publicly available or be relocated out of children’s reach.

This process “has no requirement that the local governing body publicly explain or document its reasons for approving or reversing the decision of the library committee,” the lawsuit states.

The overall impact of Act 372 will be a “chilling effect” on “the browsing, possession, sale and distribution of materials” that are protected by the Constitution and do not meet the judicial definition of obscenity, the complaint states.

Arkansas law defines obscenity as something “that to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest,” with prurient meaning overtly sexual.

Library employees who “knowingly” distribute obscene material or inform others of how to obtain it would risk conviction of a Class D felony under Act 372. Knowingly possessing obscene material would risk conviction of a Class A misdemeanor.

CALS executive director Nate Coulter and Garland County Library executive director Adam Webb are both plaintiffs in the lawsuit because Act 372 puts them at risk of criminal charges for simply doing their jobs, the complaint states.

“Mr. Webb does not believe that GCL will be able to make the drastic and prohibitively expensive changes to its floor plan that would be necessary to fully segregate all possible covered materials in the library’s collection,” the complaint states. “Accordingly, Mr. Webb is concerned that — in the course of his work and consistent with best practices for library administration — he might be charged with a misdemeanor offense for violating Act 372.”

Crawford County

The CALS board of directors voted last week to move forward with the lawsuit. Libraries, bookstores, advocacy groups and individual library patrons are among the 18 plaintiffs.

At the time of the vote on May 25, the suit had 17 plaintiffs and did not include Crawford County as a defendant. Since then, county resident and library patron Leta Caplinger joined the suit.

All five Crawford County library branches moved children’s books with LGBTQ+ topics to a segregated “social section” in December after community members objected to their availability at multiple quorum court meetings. Former system director Deidre Grzymala said this was “a compromise.” She later resigned in February.

The “compromise” came after Crawford County residents Jeffrey and Tammi Hamby criticized library staff, claiming they were “normalizing and equating homosexual and transsexual lifestyles with heterosexual lifestyles [and] heterosexual family units.”

Three of the five library board members subsequently resigned, including the previous chair, and Keith and the quorum court appointed Tammi Hamby as one of the new members. The full board appointed her as the new chair.

Crawford County residents asked the library system to “stop segregating books,” but county prosecuting attorney Kevin Holmes refused to allow this, according to the federal complaint against Act 372.

“Instead, Crawford County insisted, through counsel, that it was within its rights to ‘protect children from exposure to materials that might harm their innocence,’ including by segregating materials that, in Crawford County’s judgment, ‘might’ be harmful to some minors,” the complaint states.

Holmes cited Act 372 in his response, saying the law “will make it necessary to continue modifying and changing the library system’s policies and procedures.”

Based on this statement, the lawsuit filed Friday names Crawford County and Keith as defendants and seeks to block them from enacting “a policy that materials containing LGBTQ themes or discussing ‘justice issues’ might harm the innocence of children and that, on that basis, any such materials must be segregated based on the viewpoint contained therein once Act 372 goes into effect.”

Three Crawford County parents filed their own lawsuit May 26 against Keith, the county quorum court, the library system board and interim library director, alleging that the “unlawful censorship of materials” in the libraries’ “social sections” violates the First Amendment.

Some of the books in question include a children’s guide to LGBTQ+ Pride flags and a retelling of the Cinderella fairy tale with gay characters, according to the parents’ complaint.

“None of these books could fathomably be accused of ‘grooming,’ ‘pornography,’ or ‘exposing children to explicit sexual ideas or imagery,’” as opponents have said they are, the complaint states.

Gentry Wahlmeier, the county’s deputy prosecuting attorney assigned to the quorum court, told the plaintiffs’ lawyers in a May 23 letter that the quorum court had not violated any laws because the “compromise” between the county and the library system did not come from an ordinance or any other legislative decision. The letter was included in Friday’s federal lawsuit filing.

Also on May 23, Wahlmeier resigned as the Crawford County Library System’s legal counsel, according to his resignation letter included in court documents. Act 372 created a conflict of interest for him if challenged library content ever reaches the quorum court, he wrote to the interim library director and the library board.

The Crawford County Library System paid Wahlmeier $26,000 for handling records requests and threats of litigation over library content between October and February, the Arkansas Times reported this week.

Saline and Craighead counties

Other Arkansas library systems have also seen conservative attacks over content considered “inappropriate” for minors.

In light of Act 372, the Saline County Quorum Court recommended in April that the county library system “relocate materials that are not subject matter or age appropriate for children, due to their sexual content or imagery, to an area that is not accessible to children.”

Library director Patty Hector has refused to do this and told the court in May that “there is nothing wrong with these books” and “it’s not illegal to be gay or trans.”

County Judge Matt Brumley said Hector’s words gave him a “high degree of concern.” He reminded the board at its most recent meeting that he is responsible for appointing them.

Saline County judge: Library director’s statements cause “high degree of concern”

A Saline County resident told the board at the same meeting that the public might “make the hard decisions,” referencing Jonesboro and Craighead County, if the board does not “come up with a solution” to the conflict over what is appropriate for children.

The Craighead County Jonesboro Public Library system saw voters cut its funding in half in 2022 after protests over an LGBTQ+ book display and a transgender author’s visit to the library within the previous couple of years.

Sen. Dan Sullivan, R-Jonesboro, was the primary sponsor of the bill in the state Legislature this year that became Act 372.

Rep. Mary Bentley, R-Perryville, was one of three co-sponsors. Her district includes Perry County, which is part of CALS, and a portion of Saline County.