Arkansas Supreme Court Says Display Law Covers All Minors

On Thursday, October 21, the Arkansas Supreme Court rejected the Arkansas Attorney General's contention that amendments to an Arkansas statute restricting the "display" of material that is "harmful to minors" applied to materials only harmful to more mature minors. The Supreme Court's opinion means that, when the case goes back to the federal judge, it will most likely be struck down on the grounds that it is unconstitutional.

The decision came in response to four questions that a federal judge had posed to the higher court last December in a legal challenge to the new display law, which was brought forth by the American Booksellers Foundation for Free Expression (ABFFE), Arkansas' That Bookstore in Blytheville, the American Civil Liberties Union of Arkansas, and others. The new amendments to the Arkansas display law -- which were supposed to go into effect at the end of June 2003, but did not, pending outcome of the plaintiffs' challenge --would require retailers, at the risk of jail or fines, to segregate any work that is "harmful to minors" in an "adults-only" section of the store.

The plaintiffs, who first issued their challenge in June 2003, argued that the new law is overly broad and would violate the First Amendment rights of adults by restricting their access to a wide range of novels and nonfiction books that have some sexual content, but also have serious literary, artistic, political, or scientific value. Moreover, they contended that the law unconstitutionally requires retailers and libraries to prevent all minors from accessing constitutionally protected materials that may be considered inappropriate for younger minors.

However, the Arkansas attorney general's office argued that the law applies only to material that is harmful to minors on the "more mature end of the under-18 age spectrum," as reported by the Arkansas Democrat Gazette. Based on this interpretation, younger minors would be protected since materials that are obscene for an older minor would be obscene for a younger minor, the Democrat Gazette article noted, and this reading of the law would still allow older minors to access constitutionally protected material. As such, this narrow interpretation would mean the new amendments did not violate the constitution.

In December 2003, U.S. District Court Judge G. Thomas Eisele of Little Rock questioned whether a narrowing interpretation of the law might be to able to "save the statute, or whether such an interpretation would 'distort the obvious objectives of the statute,'" as noted in the recent Supreme Court opinion. In an effort to clarify what the law meant, the federal district court certified four questions to the Arkansas Supreme Court:

1. Is the statute intended to protect all minors, i.e. all persons 17 years of age and younger, from exposure to "materials harmful to minors"?

2. Are books and magazines that have contents containing materials harmful to minors, but which have no such materials on their binders or covers, being "displayed" under the statute if they are simply shelved in bookcases or on book shelves without any additional action or effort to single them out or to draw the attention?

3. Does a bookseller or librarian "allow to view … to a minor … any material which is harmful to minors" by simply shelving and displaying such material, or must he or she affirmatively give permission to the minor to view such materials?

4. The "safe harbor" provision contained in [the statute] requires that material be "segregated in a manner that physically prohibits access to the material by minors." What must booksellers and librarians do to avail themselves of this provision?

In answering the federal district court's first question, which the Arkansas Supreme Court described as the "heart of the matter," Justice Tom Glaze wrote in his opinion: "The federal district court first asks this court whether the statute is intended to protect all minors, or all persons 17 years of age and younger, from exposure to material deemed 'harmful to minors.' The answer to this question is plainly yes. Ark. Code Ann. 5-68-501(7) (Supp. 2003) defines a minor as 'any person under the age of 18 years' (emphasis added). There is no limitation or qualification on this definition; thus, we construe the phrase 'any person' to mean 'every person' under the age of 18."

Glazer also remarked, "[T]he State urges us to adopt [a] 'narrowing' interpretation … reminding this court that it is our duty, if it is at all possible, to adopt an interpretation of an act that preserves its constitutionality. However … works which are plainly inappropriate for younger children would not fall within the scope of the statute, because those works would have some serious literary, artistic, political, or scientific value for an older adolescent. For example, during oral argument, counsel for the booksellers pointed out that a book such as The Joy of Sex could be considered to have serious value for a married 17-year-old, who might refer to the book for guidance. That book, counsel surmised, has serious value for the older minor, and therefore it would not be considered 'harmful,' within the meaning of the statute and would thus be available for all minors to examine. However, The Joy of Sex is obviously not suitable for a five-year-old child, who would nonetheless have access to this book under the State's proffered interpretation."

As for the second question, Glazer noted that if "'material harmful to minors' is shelved on a bookshelf, even without some other effort made to draw attention to it, it is 'displayed' within the meaning of the statute. Even if a book only has 'harmful' content, but not a 'harmful' cover, the bookseller could still be subject to prosecution if that book were not obstructed from view and physically segregated."

On question three, Glazer said that, for a bookseller to violate the allow-to-view provisions of the statute, "the language of the statute indicates that a bookseller must be aware that a minor is viewing 'harmful' material, and then deliberately turn a blind eye to that activity."

As for the fourth question, "we conclude that the 'safe harbor' provision requires only that some physical obstacle stand between minors and the area where prohibited material is displayed, so that minors have no access to such material…. [I]t remains for the federal court to ultimately determine whether such a requirement violates the First Amendment rights of booksellers, librarians, and their adult customers."

However, while Justice Annabelle Clinton Imber concurred with Glazer's answers to questions one, three, and four, she dissented with his opinion on question two, and was joined by Chief Justice Betty Dickey and Justice Robert L. Brown. Imber wrote, "I would … interpret the 'display' provision to only apply to material with harmful covers or binders…. Thus, a book that is not harmful on its cover is not 'displaying' the harmful-to-minors material."

In addition to That Bookstore in Blytheville, ABFFE, and the ACLU of Arkansas, other plaintiffs in the suit are the Arkansas Library Association, Association of American Publishers, Comic Book Legal Defense Fund, Freedom to Read Foundation, and International Periodical Distributors Association. --David Grogan