BACKGROUND:

A tsunami of censorship is sweeping across the country as radical elected officials at the state and local levels race to the bottom to ban books and intimidate librarians into self-censorship. As reported by The Washington Post, in addition to Arkansas, Idaho, Indiana, Missouri, North Dakota and Oklahoma have recently enacted laws mandating fines or imprisonment, or both, for school employees and librarians, and another dozen states considered more than 20 similar bills this year, half of which are likely to come up again in 2024.

When Gov. Sarah Huckabee Sanders signed Act 372 into law earlier this year, Arkansas became the eye of the censorship storm threatening to drown out public libraries and Americans’ access to books around the nation. Under Act 372, Arkansas librarians could face up to a year in jail if they fail to prevent minors from accessing books containing a wide range of materials Arkansas considers ‘harmful’ – including those with LGBTQ+ themes.  This vaguely written and sweepingly broad directive leaves librarians and booksellers in Arkansas without a clear understanding of what they are legally obligated to do.

Act 372 is an unconstitutional attack on free speech and the freedom to read. On June 2, 2023, we filed a legal challenge to Act 372 with a broad coalition of publishers, booksellers, readers, and librarians. The lawsuit challenges two provisions of Act 372 that violate the First and Fourteenth Amendments. One component of the new law makes it a crime for libraries, booksellers, and any brick-and-mortar establishment to display or make available works that might be harmful to minors. This will require libraries and booksellers to segregate and restrict access to any book that would not be suitable for their youngest readers, or to exclude all minor readers from their premises. The second provision makes it possible for any person in Arkansas to demand the removal of a book the person deems inappropriate, limiting readers to one person’s opinion about what books should be in the library. Plaintiffs urge the court to strike down and declare unconstitutional Act 372.

The coalition challenging the law includes the Arkansas Library Association (ArLA), Advocates for All Arkansas Libraries (AAAL), and Adam Webb, all of whom are represented by Will Bardwell and Ben Seel of Democracy Forward; the Central Arkansas Library System, Nate Coulter, and the Eureka Springs Carnegie Public Library, represented by John T. Adams and David M. Fuqua of Fuqua Campbell, P.A.;  Pearl’s Books, Wordsworth Community Bookstore, the American Booksellers Association, the Association of American Publishers, the Authors Guild, the Comic Book Legal Defense Fund, and the Freedom to Read Foundation, represented Michael A. Bamberger, Kristen Rodriguez, and Rebecca Hughes Parker of Dentons US LLP; and Olivia Farrell, Jennie Kirby, Hayden Kirby, and Leta Caplinger, represented by Bettina Brownstein of the Bettina E. Brownstein Law Firm on behalf of the Arkansas Civil Liberties Union Foundation.

Democracy Forward also represented a Florida coalition, including Florida’s largest teachers’ union, in a challenge to the DeSantis administration’s unlawful censorship measures.

On July 29, 2023, Judge Timothy Brooks of the United States District Court for the Western District of Arkansas issued a ruling in Fayetteville Public Library, et al. v. Crawford County et al., halting Section 1 and Section 5 of Arkansas Act 372 from going into effect on August 1. These sections of Act 372, which Governor Sarah Huckabee Sanders signed into law earlier this year, would have librarians and booksellers work under a vague and looming threat of criminalization that encourages them to self-censor, and severely limit readers’ access to books in libraries and bookstores.

Following our filing of a legal challenge to Act 372 with a broad coalition of publishers, booksellers, readers, and librarians on June 2, 2023, we had asked the court for a preliminary injunction against the law.

In July 2023, Judge Timothy L. Brooks of the United States District Court for the Western District of Arkansas issued a ruling in Fayetteville Public Library et al. v. Crawford County, Arkansas et al., temporarily stopping sections of Arkansas Act 372 from taking effect.