Arkansas 'Harmful to Minors' Law Declared Unconstitutional

Jeff Berg
LITTLE ROCK, Ark. — A federal judge struck down a state law Wednesday that barred any public venue from shelving material that could be considered “harmful to minors,” declaring the law overbroad and a form of unconstitutional prior restraint.

The ruling, which was an important victory for adult stores as well as mainstream bookstores that stock items that may contain sexually oriented passages, said that Arkansas’s Act 858 violated both the First and Fourteenth Amendments.

The act, set to go into effect at the end of June 2003, amended state law to “require material harmful to minors to be obstructed from view and segregated in commercial establishments and for other purposes.”

While the original code only required venues that stocked material deemed “harmful to minors” in racks with opaque covers that obscured their view, the amended law required complete segregation of materials that may contain “harmful” passages, even if their covers or bindings were not expressly so.

The coalition of plaintiffs in the lawsuit, including members of the Arkansas Library Association, the Comic Book Legal Defense Fund and the American Civil Liberties Union, alleged that the law would require them to have an impossible knowledge of each item in the store and spend money building expensive partitions or face closing their doors to people under the age of 18.

“Libraries have been challenged in the past for circulating classic works by authors like Judy Blume, John Steinbeck and J.D. Salinger,” Arkansas Library Association President Dwain Gordon told the court. “I [also] understand that material depicting one or more nude female breasts can be considered ‘harmful to minors’ under the Arkansas law.”

“While none of these titles are generally shelved in children’s sections, if I understand the law correctly, ALA members will violate the law if they shelve these books in areas that minors could access,” said Gordon. “One might even worry that librarians will have to remove or restrict access to the nude statue of Icarus and Daedalus that decorates the main branch of the [Central Arkansas Library System].”

According to both U.S. District Court Judge G. Thomas Eisele, Arkansas’ new code would be overbroad because it not only linked the acts of displaying material, a “mass act” which could merely include having it on a shelf, and actually selling it, which involves a single, one-on-one interaction.

The Arkansas Supreme Court, in answer to several questions made by Eisele, also found problems with the law’s assumption that material that would be inappropriate for a 5-year-old would also be inappropriate for a 17-year-old.

“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,” wrote Supreme Court Associate Justice Tom Glaze in its majority opinion. “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.”

Spokespeople for the Arkansas Attorney General’s office told media Wednesday that the ruling should not be heralded as a huge victory.

“It will be up to the individual prosecutors as to how they choose to enforce the law,” Matt DeCample told the Arkansas Democrat Gazette, noting that when one clause of a law is struck down, the other clauses are usually still enforceable.