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Arkansas librarians sue to block new law that could jail them over explicit books

Arkansas is among a growing number of Republican-led states that have passed laws that criminalize lending certain library books to children.
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A group of public libraries and book publishers in Arkansas is pushing back against a growing movement to restrict what children are allowed to read.

Arkansas is one of four states that recently passed laws that make it easier to prosecute librarians over sexually explicit books, a designation conservatives often use to target books with descriptions of gender identity and sexuality. On Friday, a coalition led by the Central Arkansas Library System, based in Little Rock, filed a federal lawsuit it hopes will set a precedent about the constitutionality of such laws.

The Central Arkansas Library System argued in a filing in U.S. District Court for the Western District of Arkansas that Act 372 violates the First Amendment by making it a misdemeanor for libraries to give children access to materials that are “harmful to minors.” The term — which means any depiction of nudity or sexual conduct meant to appeal to a prurient interest that lacks serious artistic, medical or political value and which contemporary community standards would find inappropriate for minors — is too broad, the suit contends. For example, the law would prohibit 17-year-olds from viewing materials deemed too explicit for 7-year-olds.

The complaint also alleges that the law violates residents’ due process rights by allowing local elected officials to overrule librarians’ decisions about book challenges without providing explanations or permitting appeals from those who disagree.

Central Arkansas Library System (CALS) Executive Director Nate Coulter, center, speaks during meeting of the CALS board
Nate Coulter, center, the executive director of the Central Arkansas Library System, speaks at a meeting of the group's board in Little Rock, Ark., on May 25.Brandon Dill for NBC News

“There’s enormous angst and anxiety on the part of librarians in the state,” said Nate Coulter, the executive director of the Central Arkansas Library System, which has 17 branches in seven cities. “Because not only do they feel like people in the state government don’t respect their integrity, but they’re seen as a hostile party. They’ve been called groomers. They’ve been accused of being pedophiles. They’re basically targeted by a very divisive, angry group of people who are vocal about believing that somehow the library is the problem in our community.”

It’s unclear how prosecutors or judges would handle such criminal cases, but violations of Act 372’s “harmful to minors” provision could result in maximum jail sentences of one year. The law also eliminates protections for librarians and teachers who distribute material “that is claimed to be obscene” as part of their job, a felony punishable by up to six years in prison; the lawsuit isn’t challenging that part of the law. 

Dan Sullivan, the Republican state senator who sponsored the measure, defended the possibility that a librarian could go to prison over children’s books. 

“We don’t exempt doctors from abuse laws. We don’t exempt pharmacists from drug laws,” Sullivan said. “And I don’t know why we would exempt librarians from these laws about what’s harmful to children.”

Book ban battles make an impact

Although the law doesn’t go into effect until Aug. 1, the lawsuit says Act 372 is already having an effect in Crawford County, where public libraries recently moved books about disabled people, puberty, religion and LGBTQ characters out of the children’s sections. When residents asked for the books to be moved back, Crawford County’s attorney defended the move and cited Act 372, according to a letter obtained by NBC News.

The suit asks that a federal judge block prosecutors from enforcing Act 372’s provisions regarding book challenges and materials “harmful to minors.” It names the Crawford County government, Crawford County Judge, or CEO, Chris Keith and 28 prosecutors across the state in their official capacities as defendants. Keith declined to comment. The prosecutors either did not immediately respond to requests for comment or could not immediately be reached.

Arkansas libraries are entering a nationwide maelstrom over children’s access to materials that include descriptions of sexuality and LGBTQ characters or themes. In the past two years, conflicts over restrictions on books have expanded from school and classroom libraries to public community libraries. As with school boards, library trustees meetings in many cities have turned from sleepy affairs to impassioned political battlegrounds, leading to heated rhetoric and legislation targeting librarians.

This year, 15 states considered bills that would open public librarians up to criminal charges for letting minors check out certain books, according to the EveryLibrary Institute, a librarian advocacy group. The governors of Arkansas, Indiana and Montana signed bills into law, while in Idaho and North Dakota, similar measures passed but were vetoed by Republican governors. Last year, Oklahoma was the first state to pass a law removing librarians’ protection from prosecution.

As the battles unfold locally, librarians have become targets of those who believe children shouldn’t have access to books with frank descriptions of sexuality, discussion of gender transitions or celebration of LGBTQ identity. 

In Moon Township, Pennsylvania, local elected officials — who’d objected to children’s books about drag queens — questioned a public library about its Disability Pride Month display, because they thought the use of the word “pride” was a reference to LGBTQ people.

In Post Falls, Idaho, a library board called police to a meeting in February to address a rowdy crowd that kept shouting “shame” and “Satan” at people who defended keeping LGBTQ-themed books available for children.

In Llano, Texas, county officials nearly shut down its library system this year over a dispute about whether to keep books like “Larry the Farting Leprechaun” and “I Need a New Butt!” on the shelf because residents complained the illustrations appealed to pedophiles.

Clare Graham, the director of the Malvern-Hot Spring County Library in central Arkansas, has been watching in disbelief as such arguments roil communities in the state and beyond. 

The Saline County Library in Benton, Ark., on May 25, 2023.
A new law in Arkansas will put librarians at heightened risk of criminal charges over the books they lend to children.Brandon Dill for NBC News

“The messaging is saying, ‘If you are against this, you want kids to see porn,’ and that’s wrong, but that’s the way it’s been framed,” Graham said. “It leaves me scratching my head, because we are a sanctuary for many, and we are a neutral space.”

In Saline County, in central Arkansas, dueling billboards show the divisions over public libraries. 

Billboards sponsored by the Saline County Republican Women and the Saline County Republican Committee warn of “X-RATED LIBRARY BOOKS” and direct people to a website that primarily highlights books that include LGBTQ characters. One example is a children’s book published by HBO’s “Last Week Tonight with John Oliver” about a gay bunny named after former Vice President Mike Pence’s pet rabbit, which the website says is inappropriate for children and part of the library’s effort to “draw them away from Christian values.”

In response, the Saline County Library Alliance, a group of residents opposed to book restrictions, put up a billboard urging residents to “FIGHT THE LIES. STAND WITH THE LIBRARY.” Bailey Morgan, who raised money for the billboards, said they fear the campaign against supposed explicit books will lead to funding cuts for the library, as has happened elsewhere in the state.

A billboard from a group challenging books in public libraries is seen near Benton, Ark., on May 25, 2023.
Republican groups placed billboards alleging explicit children's books are in public libraries near Benton.Brandon Dill for NBC News
A billboard from a group in support of public libraries is seen near Benton, Ark., on May 25, 2023.
A group in support of public libraries put up billboards near Benton to counter Republican criticism. Brandon Dill for NBC News

David Gibson, the chair of the Saline County Republican Committee, said the group’s goal isn’t to defund the libraries or ban books, but “we’re not pretending for one moment that there is one good reason to have sexually explicit material for children to access.”

Last year, residents of Craighead County, Arkansas, near the Missouri and Tennessee borders, mobilized to cut library funding, objecting to LGBTQ-themed books they considered inappropriate for the children’s sections. 

Vanessa Adams, the library director in Craighead County, said she took several of the most vocal critics — a mix of conservative activists and parents — out to lunch, hoping to strike a compromise. 

“I learned that these people were very sincere and that they truly believed in what they said,” she recalled of their concerns about books that were too mature for children. “I remember saying to one of them, ‘I may not agree with you, but I love your passion for this.’”

Adams proposed moving some books including nudity, like those about sex education, to a “Parent/Teacher” section, but that wasn’t enough to stop the concerned residents’ momentum. In November, voters chose by an 8-point margin to slash the library system’s funding in half. When the change kicks in next year, Adams said, she’ll most likely have to close some branches and lay off staff members.

The Saline County Library in Benton, Ark., on May 25, 2023.
The Saline County Library in Benton has faced protests from local conservatives over children's books.Brandon Dill for NBC News

Sullivan, who introduced Act 372 in the state Senate, represents parts of Craighead County and publicly supported the effort to cut the library’s funding. He said it inspired his bill.

Most states have exemptions from prosecution for librarians who share obscene material with minors for legitimate or educational purposes, according to the EveryLibrary Institute, and many states have similar exemptions for teachers, clergy, doctors or museum staff members.

The new state laws removing the exemptions for librarians have renewed focus on the definition of obscenity. A 1973 Supreme Court decision established the “Miller Test,” which asks whether the average person would consider material about sexual conduct or excretory functions to be offensive, whether it appeals to prurient interest in sex and whether anyone would find it to have literary or artistic value.

Many librarians, library advocates and civil liberties groups fear that even if courts ultimately find that LGBTQ-themed children’s books don’t meet that definition of obscenity, the threat of prosecution will create a chilling effect. 

The Saline County Library in Benton, Ark., on May 25, 2023.
Conservatives in Arkansas have protested LGBTQ-themed books, such as those at the Saline County Library in Benton. Brandon Dill for NBC News

“A major concern with these laws is that they’re going to create an incentive for librarians to remove any potentially controversial books from the libraries, and then they’ll not only not be available to minors, but they won’t be available to adults,” said Aaron Terr, the director of public advocacy at the Foundation for Individual Rights and Expression, a civil liberties group known for criticizing what it characterizes as censorship on college campuses.

Deborah Caldwell-Stone, the director of the American Library Association’s intellectual freedom office, believes the legislation will prevent children from discovering new ideas through books.

 “When you try to expand the definition of what is criminal — to distribute to society ideas to consider and, worse, couching it in terms of protecting children from ideas — we’re really in a bad place,” she said. 

Sullivan countered that the point of the law is to stop children from accessing problematic material. 

“If one’s violating the law — doing things that are harmful to children — it should have a chilling effect,” he said. “That’s a good thing.”

Central Arkansas Library System (CALS) attorney John Adams speaks during a meeting of the CALS board
Central Arkansas Library System attorney John Adams speaks at a board meeting May 25 before a vote to file a lawsuit challenging the constitutionality of Act 372.Brandon Dill for NBC News

The Central Arkansas Library System has amassed a coalition of plaintiffs to challenge Act 372 in the lawsuit filed this week, including the public libraries in Eureka Springs and Fayetteville, the Arkansas Library Association, the American Booksellers Association, the Association of American Publishers, the Comic Book Legal Defense Fund, the Freedom to Read Foundation, two Arkansas bookstores and two library patrons. The Arkansas Civil Liberties Union Foundation, a civil liberties nonprofit, and the Democracy Forward Foundation, a left-leaning advocacy group, are helping provide legal representation. 

Coulter, the executive director, said at the library system’s May 25 board meeting authorizing the lawsuit that it’s unclear how libraries would comply with Act 372’s requirement to ensure minors don’t access “harmful” materials. For example, what if a library moves a book out of the children’s section and a 16-year-old picks it up in the adult stacks? 

“We’re not going to have enough staff to put at the head of every row of books to check your ID,” he said.