A First Amendment Victory in Arkansas

On Tuesday, November 16, a federal court in Little Rock, Arkansas, struck down the provisions of an Arkansas Code that criminalized the display of books that are inappropriate to younger minors but constitutionally protected as to older minors and adults. "Our victory in Arkansas is great news," said Chris Finan, president of the American Booksellers Foundation for Free Expression (ABFFE), one of the plaintiffs in the case. "For the second time this year -- first in Michigan and now in Arkansas -- booksellers have successfully defended the First Amendment rights of their customers to gain access to all First Amendment-protected material."

In his decision, U.S. District Judge G. Thomas Eisele stated that the "display provisions" of the law are "facially unconstitutional under the First and Fourteenth Amendments to the United States Constitution because such provisions are overbroad and impose unconstitutional prior restraints on the availability and display of constitutionally protected, non-obscene materials to both adults and older minors."

The final ruling came more than a year after the law's display provisions were initially challenged by a broad-based coalition of plaintiffs, which, in addition to ABFFE, included Arkansas' That Bookstore in Blytheville and the American Civil Liberties Union of Arkansas, among others.

The plaintiffs, who first issued their challenge in June 2003, argued that the provisions in the law were 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 countered that the provisions of the law applied 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, Judge Eisele had directed certified questions as to the meaning of the amended statute to the Arkansas Supreme Court. Based on the response from the Supreme Court, the judge found the display provisions unconstitutional. In his ruling, he noted: "It is now clear that under the Arkansas statute, as authoritatively interpreted by the Arkansas Supreme Court, material which is only harmful to the youngest of the minors may not be displayed by Plaintiffs even though such material would not be harmful to adults or older minors. The statute therefore effectively stifles the access of adults and older minors to communications and material they are entitled to receive and view."

Other plaintiffs in the suit include the Arkansas Library Association, Association of American Publishers, Comic Book Legal Defense Fund, Freedom to Read Foundation, and the International Periodical Distributors Association. Michael A. Bamberger, a New York-based partner with Sonnenschein Nath & Rosenthal LLP, was lead counsel for the plaintiffs and was assisted by John L. Burnett of Lavey & Burnett, Little Rock, Arkansas.