Court Blocks Arkansas Law That Limits “Harmful to Minors” Books in Public Libraries and Bookstores, and Also
An Arkansas statute (Act 372) makes it a crime (in its section 1) for librarians and booksellers to “[f]urnish a harmful item to a minor.” The U.S. Supreme Court has held that the First Amendment doesn’t protect distribution of “obscenity,” a narrow category that basically covers hard-core pornography. To be obscenity, a work must satisfy all three of the following elements, largely drawn from Miller v. California (1973), though with extra detail added by Smith v. U.S. (1977), Pope v. Illinois (1987), and Brockett v. Spokane Arcades, Inc. (1985):
- “the [a] average person, [b] applying contemporary community standards, would find that the work, [c] taken as a whole, [d] appeals to the prurient interest” (which means a “shameful or morbid” interest in sex as opposed to a “normal, healthy” interest);
- “the work depicts or describes, [a] in a patently offensive way [under [b] contemporary community standards], [c] sexual conduct specifically defined by the applicable state law”; and
- “the work, [a] taken as a whole, [b] lacks serious [c] literary, artistic, political, or scientific value[, [d] applying national standards and not just community standards].”
And the Court has also held that the law may bar distribution to minors of sexually themed material, if it fits within what’s basically the Miller test with “of minors” or “for minors” added to each prong (e.g., “the work taken as a whole, lacks serious literary, artistic, political, or scientific value for minors“). Ginsberg v. New York (1968), a pre-Miller case, upheld a law that implemented the then-current obscenity test with “to minors” added at the end of each prong; most lower courts and commentators have assumed that Ginsberg plus Miller justify laws that implement the Miller-based test with “to minors” added to each prong as well. This category is often labeled material that is “obscene for minors” or “harmful to minors.” (It’s a completely different First Amendment exception from the one for child pornography, which focuses not on the recipient of the material but on the person depicted in the material.)
Now of course minors vary sharply in age, so this raises the question: Is a work “obscene as to minors” when it has value for a 17-year-old (or isn’t patently offensive when displayed to a 17-year-old) but lacks value for a 5-year-old? Back in 2004, the Arkansas Supreme Court basically said such a work is indeed obscene as to minors; and because of this, Judge Timothy Brooks (W.D. Ark.) held today in Fayetteville Public Library v. Crawford County, Section 1 of Act 372 is likely unconstitutional:
Arkansas’s highest court [has concluded] that a broad interpretation [of “harmful to minors”]—which swept in books that would be considered harmful to the youngest of minors—was what the Arkansas General Assembly intended when drafting the law. The Court explained:
If the younger minors are to be protected from “harmful” materials, surely the General Assembly did not intend for those younger children to be permitted to access materials that would arguably be “harmful” to them, even though not “harmful” to an older child. We cannot construe Arkansas’ statutory law in such a way as to render it meaningless, and we will not interpret a statute to yield absurd results that are contrary to legislative intent.
Shipley, Inc. v. Long (Ark. 2004)…. Since this term [“harmful to minors”] has been construed broadly by the Arkansas Supreme Court to mean material that is obscene to the youngest of minors, it was up to the General Assembly to write a narrowly tailored law with this definition in mind. That did not happen, and the law’s overbreadth should not come as a surprise to its drafters….
Given the above, the only way librarians and booksellers will be able to comply with Section 1 and still allow those under the age of eighteen to enter their facil
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
