Victory Final in Arkansas Display Statute Challenge

Last week in U.S. District Court, the Arkansas State's Attorney General dropped the appeal of a federal court decision that 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. The state's decision marks the end of the case and signals a First Amendment victory for the plaintiffs. As part of the settlement agreement, the state will pay the plaintiffs' legal fees.

"We are delighted by our victory in Arkansas -- and by the fact that the state has agreed to reimburse us for the attorneys' fees we incurred in challenging the law," said Chris Finan, president of the American Booksellers Foundation for Free Expression (ABFFE). "Hopefully, legislators there will remember the cost of this lawsuit when they are tempted again to violate the First Amendment rights of booksellers and their customers."

The plaintiffs -- who include ABFFE, Arkansas' That Bookstore in Blytheville, and the American Civil Liberties Union of Arkansas, among others -- first issued their challenge in June 2003. They had 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.

In November, U.S. District Judge G. Thomas Eisele ruled in the plaintiffs' favor and stated that the "display provisions" of the law are "facially unconstitutional under the First and Fourteenth Amendments to the U.S. Constitution because such provisions are over broad and impose unconstitutional prior restraints on the availability and display of constitutionally protected, non-obscene materials to both adults and older minors."

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