Judge Blocks Unconstitutional Book Ban Law Passed By Arkansas’ Self-Proclaimed Free Speech Warriors

Free Speech

from the free-speech-doesn't-mean-the-gov't-is-free-to-tell-you-to-STFU dept

The self-proclaimed free speech warriors of the Republican party have spent much of the past half-decade trying to find some way to force social media platforms to carry their often-objectionable speech. That’s what these asshats and hypocrites consider to be the real “censorship:” the actions of private companies these same people have long stated should not be forced to offer their services to people they don’t like.

In other words, no one should be forced to bake a “gay” cake. But on the other hand, private companies should be forced to publish the speech of people they’d rather not do business with.

Between the social media laws, the anti-drag laws, and everything in between that best soaks up the floor spittle generated by of the worst of the worst of their constituents, Republicans keep writing and passing laws that openly violate the Constitution. And they just keep losing in court every time a judge has a chance to take a look at the hate-blinded op-eds these legislators are trying to pass off as legitimate acts of government work.

Here it is again: performative shitheels being told by a federal court that their new favorite law is illegal.

Arkansas is temporarily blocked from enforcing a law that would have allowed criminal charges against librarians and booksellers for providing “harmful” materials to minors, a federal judge ruled Saturday.

U.S. District Judge Timothy L. Brooks issued a preliminary injunction against the law, which also would have created a new process to challenge library materials and request that they be relocated to areas not accessible by kids. The measure, signed by Republican Gov. Sarah Huckabee Sanders earlier this year, was set to take effect Aug. 1.

That’s from the Associated Press report on the latest injunction against the latest batch of free speech violations signed into law by state officials who should at least try to employ better lawyers to give these pieces of legislative shit a better pass before slashing their Hancock across a stack of papers to the applause of onlooking mouth-breathers.

[And the Associated Press should definitely start making the effort to actually post the court orders it discusses in articles, but a public document is not a limited good that can only be referenced when discussed. If the general public has access, AP has access. And — once again — it boggles the mind that in the year 2023 there are still major news agencies that refuse to embed the documents they report on.]

THAT BEING SAID… let’s move on.

The other great thing about decisions like this one [PDF] that slap down obviously unconstitutional laws is that it appears judges are as sick of this performative bullshit as millions of Americans who actually think rights should be respected and that they should, at the very least, not be treated as (perhaps temporary) doormats just because people who are supposed to serve the greater good, along with all their constituents, have instead decided to blow money on pantomime buffoonery for the appreciation of the most dull-witted of their voting base.

It opens by explaining what the law intends to do, as well as the decades of case law it intends to upend:

Section 1 of Act 372 makes librarians and booksellers the targets of potential criminal prosecution for “[f]urnishing a harmful item to a minor.” Plaintiffs contend that if Section 1 goes into effect, public librarians and bookstore owners will face a grim choice:

• Remove all books from the “young-adult” and “general” collections that mention sex or sexual conduct, as that material may be deemed harmful to the youngest minors—even though the same material would not be harmful to the oldest minors or adults; or

• Ban all persons under the age of 18 from entering public libraries and bookstores due to the risk of endless criminal prosecution.

Arkansas already criminalizes providing obscenity to minors. But it has long maintained a safe harbor for librarians “acting within the scope of [their] regular employment duties” if prosecuted for disseminating material “that is claimed to be obscene.” See Ark. Code Ann. § 5-68-308(c). That immunity has not been questioned since the Arkansas Supreme Court found the exemption “reasonable on its face” nearly four decades ago.

So, in an effort meant to block a very specific subset of content some parents might find objectionable for some minors, the state legislature — including the state’s governor — decided it was OK to throw out the First Amendment along with four decades of case law supporting immunity for librarians. Fuck the librarians, said Governor Sanders and the bill’s supporters, as the court notes. Something that has never been a problem for decades is suddenly a concern worth threatening librarians with jail time over. (Emphasis in the original.)

In other words, the notion that a professional librarian might actually disseminate obscene material in the course of his or her regular employment duties was inconceivable to the state’s highest court. The statutory exemption protected librarians from meritless claims. Act 372 signals a fundamental change in how librarians are treated under the law.

A government-ordained attack on public libraries is almost inconceivable. The opinion quotes founding fathers who recognized the utmost importance of having free access to publications and works of literature. Well respected philanthropists (also quoted in the opinion) have repeatedly gone on record in support of publicly-funded libraries, which democratize the spread of information — something that’s even more important now that these entities often provide free internet access to people who can’t afford or readily access this undeniable essential of everyday life.

And yet, here we are, watching (along with an incredulous federal judge) a state decide it’s fully within the rights (it doesn’t actually possess) to jail librarians just because there’s a slim possibility a minor might access content these legislators have unilaterally decided (without the benefit of ruling on the disputed content itself) is de facto obscene.

It is no stretch of the imagination to foresee that these same legislators would object heavily — even up to the point of hastily erected legislation — to any reform efforts that might strip cops, prosecutors, or even legislators themselves of long-held immunities. But these same people think it’s entirely fine to do the same thing to other public employees, just because they don’t like a very small percentage of any public library’s inventory.

And there’s no need to guess what kind of content is being singled out as potentially illegal. That’s already on the record:

Plaintiff Adam Webb, Garland County Library’s Executive Director, states that his library has already received a “blanket request” to remove books from the collection due to their content and/or viewpoint, namely, “all materials with LGBTQ characters”; and he expects to see challenges to “those same books, as well as others dealing with similar themes,” made “repeatedly under Act 372.” (Doc. 22-15, ¶ 21)

Back to the court’s ongoing rejection of this reprehensible law:

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.

The state argues it has a “paramount interest” in preventing minors from accessing “obscene materials.” This apparently includes parents buying allegedly “obscene” materials for minors in their own home — something that definitely appears to run contrary to the rest of the law, which says any parent or person — whether or not they have an affected minor (or indeed, even reside in the state) can initiate proceedings against library employees.

Any “person affected by . . . material” in a library’s collection may “challenge the appropriateness” of that material’s inclusion in the main collection. Id. at § 5(c)(1). Material subject to challenge is not limited to sexual content. There is no definition of “appropriateness,” so any expression of ideas deemed inappropriate by the challenger is fair game. Section 5 does not require a book challenger to be a patron of the library where the challenge is made, nor does it impose a residency requirement.

This is what the new law would force librarians to do — something the court says are credible assertions that not only support ongoing litigation, but demand the court step in and block the law:

Librarians will be disinclined to risk the criminal penalty that may follow from lending or selling an older minor a book that could be considered “harmful” to a younger minor, since the new law makes no distinctions based on age and lumps “minors” into one homogenous category…

Librarians and booksellers fear exposure under Section 1 to the risk of criminal prosecution merely by allowing anyone under the age of 18 to browse the collection.

Librarians maintain that a quantity of books in their collections very likely qualify as “harmful to [younger] minors” under the law. Even if any such book is successfully identified and relocated to the “adult” section, librarians will have to closely police the browsing habits of all minors to make sure they do not stray outside the marked “children’s” or “young adult” sections of the library—a task librarians maintain is physically impossible and antithetical to the mission and purpose of public libraries.

Librarians and booksellers anticipate they will have to remove all books that could possibly be considered harmful to the youngest minors from the shelves entirely.

The librarians are right. The state is in the wrong.

Plaintiffs have established this “realistic danger.” If libraries and bookstores continue to allow individuals under the age of 18 to enter, the only way librarians and booksellers could comply with the law would be to keep minors away from any material considered obscene as to the youngest minors—in other words, any material with any amount of sexual content. This would likely impose an unnecessary and unjustified burden on any older minor’s ability to access free library books appropriate to his or her age and reading level. It is also likely that adults browsing the shelves of bookstores and libraries with their minor children would be prohibited from accessing most reading material appropriate for an adult—because the children cannot be near the same material for fear of accessing it. The breadth of this legislation and its restrictions on constitutionally protected speech are therefore unjustified.

And boom goes the injunction as the sportscasters say. Temporary for the moment, but it’s highly unlikely there’s anything the state can say to prevent this from becoming permanent. It’s a law meant to punish librarians for content in libraries certain members of this state’s government don’t like. And, considering they’re supposed to be the adults in the room, it’s amazing they feel so comfortable slapping on ideological blinkers and wandering around like children seeking to treat long-held rights as piñatas.

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