FAYETTEVILLE -- The Crawford County Library System and County Judge Chris Keith are asking a federal judge to throw out a lawsuit challenging a state law that makes it a crime to give minors library materials deemed to be obscene.
A group of 17 plaintiffs, including the public libraries of Fayetteville, Eureka Springs and the Little Rock-based Central Arkansas Library System, sued the state and Crawford County last year to overturn two provisions of Act 372, which became law in August.
The group argues if the two provisions are allowed to take effect, the plaintiffs' First Amendment rights could be adversely affected. That includes librarians and booksellers facing prosecution for failing to censor constitutionally protected speech; libraries and bookstores struggling to comply with the vague mandates of the law; and bookstore and library patrons being faced with rapid erosion of their access to constitutionally protected material, without procedural protections allowing them to advocate for retention of the material.
Defendants in the lawsuit include prosecuting attorneys in each of Arkansas' 28 judicial districts, Crawford County and its county judge.
Filed Monday, the motion by Crawford County and Keith seeks to strike and dismiss the lawsuit, contending the library and county were dragged unwillingly into the lawsuit.
"Crawford County, like every other library that is a plaintiff in this case, would have to implement Act 372 if the Act is not enjoined," according to a brief.
"The only difference between Crawford County and the library plaintiffs is that the library plaintiffs chose not to seek an injunction against implementing the act. Plaintiffs chose to sue to stop Act 372 and Crawford County did not," according to the brief. "This leaves Crawford County defending itself against a law it did not draft or ever seek to implement."
Lawyers for the Crawford County defendants contend the plaintiffs' complaint against them attempts to create the illusion that Crawford County implemented Act 372 before its enforcement by creating "Social Sections" within its county libraries for challenged books. The brief filed Monday contends those sections were established in December 2022 before the bill that would become Act 372 was filed in January 2023 and are therefore irrelevant to the lawsuit because they have no bearing on whether Act 372 itself is constitutional.
"The record in this case is clear, Crawford County would enforce Act 372 because it has to, just like every library plaintiff in this case," the brief argues.
If the library plaintiffs or Crawford County had a choice, there would not be a case-or-controversy to decide, because they could simply choose not to enforce Act 372, but, they do not do not have a choice, according to the brief.
But, Crawford County must now defend itself in the lawsuit because the plaintiffs have chose to include claims about actions Crawford County took before the act was ever passed.
The motion seeks to strike references to the Crawford County Library's social sections from the lawsuit, arguing the relief sought by the lawsuit has nothing to do with them.
Crawford County defendants also continue to claim the parties who filed the lawsuit lack standing to sue and that the complaint fails to state a valid legal claim.
THE LAWSUIT
The lawsuit is challenging two of Act 372's six sections, including a new Class A misdemeanor offense for furnishing a harmful item to a minor. Library personnel and others could face criminal prosecution and up to a year in jail if they "knowingly" lend an item deemed harmful to minors based on existing obscenity law.
Attorneys for the plaintiffs have dubbed that the "availability provision."
"This will necessarily force libraries and bookstores to confine to a secure 'adults only' area -- and so to segregate from their general patrons and customers -- any item that might be deemed harmful to the youngest minor, even if there is no constitutional basis for limiting its availability to older minors or adults," according to the lawsuit.
The previous law had a "safe harbor" or immunity defense for public libraries and schools, but the new law would strip away those protections, the attorneys claim.
The second challenged section establishes procedures for people to challenge the appropriateness of library material made available to the public.
Successful challenges could result in the material being "relocated within the library's collection to an area that is not accessible" to minors, according to the law. Should library officials refuse to move an item, their decision could be appealed to the local city council in the case of a municipal library or quorum court in the case of a county library.
Court filings on behalf of the plaintiffs refer to the section as the "challenge procedure." A separate section of the law establishes a similar challenge process for school districts.
Gov. Sarah Huckabee Sanders signed the legislation March 30. The complaint was filed in U.S. District Court for the Western District of Arkansas on June 2.
U.S. District Judge Timothy L. Brooks issued a preliminary injunction in late July preventing implementation of the sections of the law that are at issue until the lawsuit can be heard. A bench trial is set for Oct. 15 in Fayetteville.