Image – Getty: Alex Corv
By Porter Anderson, Editor-in-Chief | @Porter_Anderson
Court: Booksellers, Librarians ‘Motivated by Fear of Jail Time’
On December 23, the US District Court for the Western District of the state of Arkansas declared Arkansas Act 372 unconstitutional.
While a defeat or setback of any book-banning effort in the United States is cause for applause among many in book publishing, this decision was especially prized because—as Association of American Publishers (AAP) president and CEO Maria A. Pallante put it in July—this is the state law that would have “subjected librarians and bookstore owners to criminal prosecution for making content deemed inappropriate (by the state) available to minors, including older minors.”
Covered by Publishing Perspectives the summer here and here, a major challenge to this legislation—signed into law in March by Arkansas’ Republican governor, Sara Huckabee Sanders—was highlighted by the AAP’s announcement that it was part of a coalition calling the state of Arkansas’s action into question.
On December 23, the United States publishers’ association cheered the court’s action as permanently blocking enforcement of Act 372, having earlier characterized it as a violation of the First Amendment rights of Arkansas’ reading citizens.
On December 26, Eduardo Medina at The New York Times wrote that Judge Timothy Brooks “has struck down portions of an Arkansas law that could have sent librarians and booksellers to prison for providing material that might be considered harmful to minors.”
Applauding a ‘Carefully Crafted Decision’
The AAP’s media messaging includes a joint statement issued by the leaders of several plaintiffs: That statement reads, “Together with librarians, authors, publishers, booksellers, and readers everywhere, we applaud the court’s carefully crafted decision upholding the constitutional right to access book.”
The organizational leads and bookstore owners behind that statement are:
- The Association of American Publishers (Maria A. Pallante)
- The American Booksellers Association (Allison Hill)
- The Authors Guild (Mary Rasenberger)
- The Comic Book Legal Defense Fund (Jeff Trexler)
- The Freedom to Read Foundation (Deborah Caldwell-Stone)
- WordsWorth Books, a local bookstore in Little Rock, Arkansas (Kandi West and Lynne Philips)
- Pearl’s Books, a local bookstore in Fayetteville, Arkansas (Kandi West and Lynne Philips)
The full plaintiff group also comprised Fayetteville Public Library; Eureka Springs Carnegie Public Library; Central Arkansas Library System (CALS) and its executive director Nate Coulter; Arkansas Library Association; Advocates for All Arkansas Libraries; Adam Webb, a librarian from Garland County; Olivia Farrell, an adult CALS patron; Hayden Kirby, a 17-year-old CALS patron; and Leta Caplinger, a patron of the Crawford County Public Library.
The AAP points to this part of the court’s memorandum as especially relevant and pertinent to the logic that propelled the plaintiff’s legal argument, Judge Brooks writing:
“If the General Assembly’s [the Arkansas legislature’s] purpose in passing Section 1 was to protect younger minors from accessing inappropriate sexual content in libraries and bookstores, the law will only achieve that end at the expense of everyone else’s First Amendment rights.
“The law deputizes librarians and booksellers as the agents of censorship; when motivated by the fear of jail time, it is likely they will shelve only books fit for young children and segregate or discard the rest.”
Another interesting element of Judge Brooks’ 37-page memorandom arises when he writes that in answer to the plaintiffs’ charge of “vagueness” that “the state offers a five-sentence response that claims without explanation that the challenged terms are ‘ordinary terms that people use and understand every day’ and are not vague at all,” which might make some wonder how wholehearted the state’s defense was.
At bottom, Judge Brooks’ analysis released in late December was that Act 372 “regulates substantially more speech than the Constitution allows and therefore violates the First Amendment rights of Arkansans.” And second—returning to the vagueness issue—Brooks wrote that the terms “are so vague that they fail to provide librarians and booksellers with adequate notice of what conduct is prohibited, thus violating their due process rights.”
Counsel for the various plaintiffs include John T. Adams of Fuqua Campbell, P.A.; Michael Bamberger of Dentons; Bettina Brownstein of the ACLU of Arkansas; and Benjamin Seel and Will Bardwell of Democracy Forward.
More from Publishing Perspectives on book bannings is here, more on censorship more widely is here, more on the freedom of expression and the freedom to publish is here, and more on the Association of American Publishers is here.