Arkansas is trying to save one of the most extreme book censorship laws in recent memory, one that would allow jailing librarians and booksellers for keeping materials on their shelves that fall under the statute’s broad definition of “harmful to minors.”
The state’s Act 372 not only makes it possible for librarians to be jailed for providing teenagers with Romeo and Juliet, but also allows anyone to “challenge the appropriateness” of any book in a library.
After the law passed, a coalition of booksellers, librarians, libraries, library patrons, and professional associations persuaded a federal judge to stop the law from taking effect in Fayetteville Public Library v. Crawford County. But the state appealed. FIRE in turn submitted a friend-of-the-court brief urging the U.S. Court of Appeals for the Eighth Circuit to affirm the permanent injunction against Act 372.
How Act 372 operates
Arkansas’s law compels public libraries to adopt policies allowing “any person affected” by a book to challenge its “appropriateness,” forcing libraries to remove or sequester the book in an area “not accessible to minors” if the challenge succeeds. The law provides no definitions for crucial terms like “appropriateness” or “accessible,” leaving librarians to guess how to comply and inviting challenges based on personal or political objections.
Worse still, the process creates a one-way ratchet in favor of censorship by granting challengers the right to appeal decisions to keep a book in place while having no appeal procedure when a book is removed or segregated. FIRE advocates for a fair system — call it “due process for books” — where libraries use an impartial and objective process for reviewing challenged books’ educational value and age appropriateness. And a system that permits only one side to appeal a ruling while denying appeals by the other is inherently unfair, as we’ve noted in campus Title IX hearings. Act 372’s unbalanced system empowers hecklers to reshape public collections according to their tastes, undermining libraries’ historic role as repositories of diverse ideas and viewpoints.
These issues are worsened by a broad and unconstitutional definition of “harmful to minors.” That section threatens librarians and booksellers with up to a year in jail if they furnish, present, provide, make available, give, lend, show, advertise, or distribute to a minor any material considered harmful—without distinguishing between materials inappropriate for young children and those suitable for older teens. By grouping all minors into one category and failing to define key terms, Act 372 effectively criminalizes access to classic and educational works that may include mature themes.
Why Act 372 is unconstitutional
FIRE has consistently stated it’s entirely proper for public school libraries to consider whether books are age-appropriate for their collections based on various factors. But Act 372 falls far short of that commonsense standard by employing a broad definition that applies to all public libraries, as well as private bookstores, and by treating all minors the same, from first graders to high school seniors.
To understand why Act 372’s “harmful to minors” definition does not meet constitutional standards, one must consider the Supreme Court’s precedents in this area. For decades, the Court has been cautious to ensure that merely labeling sexually suggestive materials as obscene does not give the government blanket authority to censor speech. That’s because works that are obscene are considered unprotected speech—for both adults and minors—and essentially freely regulable or sanctionable. But what about sexually explicit material that is not obscene and thus protected?
In Ginsberg v. New York, the Court recognized the state’s limited power to restrict minors’ access to sexually explicit content, while emphasizing it remains constitutionally protected for adults. In Miller v. California, the Court formulated a rigorous test for obscenity that ensured works with serious literary, artistic, political, or scientific value would not meet the test simply because they involve sex. Taken together, Ginsberg, Miller, and cases flowing from them acknowledge that states may use a variable obscenity test based on the viewer’s age, while ensuring that adults can access non-obscene materials.
The Supreme Court further clarified the issue in Virginia v. American Booksellers Association, where it cautioned against laws that aim to protect minors but could potentially limit free speech. The law in question survived only after the Virginia Supreme Court narrowed its definition of “harmful to juveniles” to cover works judged as harmful to older teens, and only when someone knowingly put that material where kids could easily see it. Without this clarification, the law would have been unconstitutionally overbroad and vague.
The standard for obscene-for-minors or “harmful to minors” material has thus generally coalesced around a version of the Miller obscenity test tailored to the underaged to require that: the material taken as a whole must appeal primarily to a prurient interest in sex as to minors; it must portray hardcore sexual conduct in a manner patently offensive to the average adult under contemporary community standards for minors; and it must lack serious literary, artistic, political or scientific value for minors.
Unlike the Virginia Supreme Court, the Arkansas Supreme Court adopted a much broader interpretation of “harmful to minors” that treats all minors under 18 the same. As a result, libraries and local bookstores could be penalized simply for providing older minors with access to books that would be objectionable only to the youngest children. In other words, books older minors have a right to read under the First Amendment.
This would require librarians to put classics like Romeo and Juliet or Catcher in the Rye behind adults-only walls. Further, Act 372’s challenge system also subjects the availability of library books to a “heckler’s veto” by anyone who objects to the material. But the very purpose of public libraries is to provide everyone access to a broad marketplace of ideas. If Act 372 stands, librarians will be forced to choose between their professional duty to provide the community with a wide range of books and the threat of imprisonment if any of those books might be inappropriate for a 5-year-old.
What’s at stake
FIRE is asking the Eighth Circuit to affirm the district court’s ruling striking down Arkansas’s Act 372, because if the state can jail librarians for letting kids read books, it won’t stop at Arkansas. The First Amendment doesn’t allow governments to censor ideas under the guise of “protecting children,” and we’re fighting to make sure it never does.
