A federal appeals court last week ruled that a 2023 Arkansas law restricting access to library materials can now go into effect. The three-judge panel from the 8th U.S. Circuit Court of Appeals ruled that the 18 plaintiffs had no standing to challenge one section of Act 372 and failed to prove that the other section was unconstitutionally vague. One of the plaintiffs in that case was the Fayetteville Public Library. David Johnson is the executive director of the library. He recently spoke with Ozarks at Large's Daniel Caruth about this new ruling. Johnson says when he first heard about it, he was disappointed.
Johnson: And I felt like we had a strong case. I felt like our attorneys represented us well. I believe Judge Brooks' opinion was solid and sound, and I had hoped that the three panel, three-judge panel would have agreed, but apparently not.
Caruth: Yeah. And this also comes at the same time as the library board, the state board is meeting to put new rules forward that will also restrict access to so-called sexually explicit material to minors. Can you bridge how those two things work in tandem? What happens now that this act has been effective again, is back in place and that we're waiting, awaiting those new rules to possibly go into effect?
Johnson: Yeah. So fundamentally, I think the big difference that we can look at is the State Library is saying for you to receive any state funding, you need to go through proactively and review, in our case, 300,000 items and determine whether or not they are obscene and if so, they need to be labeled in such a way or identified or restricted to checking out.
And this is where we're having a challenge with Act 372. They're saying that anyone in the community can challenge a book for it being obscene. And what is that true definition of obscenity? And then also, it happens more on a case-by-case basis. It's not requiring us to go back through and work, review our entire collection. So there's sort of, I think the fundamental largest difference between the two. Either way, they have a profound impact on freedom of speech and people's access to information.
Caruth: And from your perspective and from the librarians who work for you, what does it mean for them? Do we know what it'll mean if something is found to be obscene? What happens now because this, this act incurs criminal penalties for people.
Johnson: Right. And that's further definition or clarification that I think we're going to be requesting from the 8th Circuit, which is, is it the person who purchased the item for the library? Is it the person who processed it and made it available? Is it the person who shelved it? Is it the person who checks it out? What if a person uses a self check? And if we really don't want to extend it further, you could say, what if a parent came in and checked the item out and then handed it to an 8-year-old when they left the library? Is that the parent now culpable for criminal charge or.
So there's so much about it that is, that we challenged it on its vagueness. And so we're going to, I would suspect that we go back to the three judges and ask them for further clarification on Section 1, which is basically what is the determination of how we apply this law and what qualifies as obscene?
Caruth: Yeah. And I know you guys are still waiting to see what the legal avenues are and possibly appealing this further. But I assume you've had internal conversations about, how do we even go about separating items out, making them inaccessible? What does that look like? What's the cost of doing that? I mean, what is the process? How would it even look to do this?
Johnson: Yeah. We immediately upon the passage of Act 372, we set forth our plan of how we were going to do this. If, if, assuming that it never made it as far as Judge Brooks. And so we have a plan, we've got to get it vetted by our attorneys and make sure that it complies with the letter of the law. And that's part of what's a problem is they're going to have a hard time helping us define that as well.
And so we've got a plan. We have, if we do nothing, we've got 13 days from today before the law is mandated. And then which time we will implement it. We're much more comfortable with Section 5, which said you have to have two policies. One is a policy to help guide you in the curation of materials. The other one, the second policy is have a very well defined definition for book challenges when that process. And so we already had that. So we're comfortable there. It's just on the first end. Section 1 about vagueness, overreach, impact on First Amendment and 14th Amendment due process.
Caruth: What are the conversations you're having with other libraries in the state? Because I assume part of you taking on this case and being the lead plaintiff was to have it be in this district. But also, you guys are probably the biggest library in the state. You're one of the most high profile when it comes to these smaller libraries who maybe are looking to you guys for guidance. What are the conversations you all are having, especially as you've seen maybe Crawford County, that library, what they went through, what is the state of being a library here in Arkansas today?
Johnson: Yeah. I mean, I think there's a lot of librarians that are a little unsettled. They don't know how they're going to implement the law. They're not really sure themselves how the law is to be interpreted. I'm in direct conversation with Nate Coulter down at the Central Arkansas Library System and Adam Webb at Garland County, and he's the president of the Arkansas State Library Association. And so we're at the tip of the spear, so to speak. But we're committed to helping interpret and work with other libraries as we can, but right now we really don't know what we need to do. So it's sort of a hurry up and wait kind of position.
Caruth: Yeah. Well, so what are the next steps? I mean, it only happened yesterday, but what do you think will be the next steps going forward? What avenues are open and available to you guys?
Johnson: Yeah. So we really have kind of four options available to us. The first would be do nothing and set forth trying to implement the law. The second option would be to go back to the three-judge panel and ask for further elucidation and definition for their decision. We could then ask for an en banc opinion, which is for all 11 judges on the 8th Circuit, to weigh in and hope that maybe they would uphold Judge Brooks' opinion. And then your final step really is to Supreme Court.
And so right now, we're going to take the weekend, breathe a little bit. We've had some conversations this morning and then determine which of those options are available to us. The easiest one for us would be to go back to the three panel, three-judge panel and ask them for further guidance and further explanation, and making sure we understand exactly what Judge Grasz's opinion was. So those are our options as it stands.
Caruth: Yeah. And then for patrons or people out there who maybe say, well, why don't you guys just comply with the law, make it put things in place? It seems easy to me not to have obscene materials available. Can you explain sort of why you wanted to join this case, why you challenged the opinion or challenged the law?
Johnson: Yeah. I mean, when you start thinking about challenges to your First Amendment right to freedom of speech and freedom of access to information, and there is no cookie cutter, one-step formula for everyone. And so to put libraries and librarians in the position of being what should fall upon personal responsibility. And in the instance of minors, it's the parents or caregivers who are the ones who should be making those decisions. We don't want to intercede in that process. That's between the parent, the caregiver and the child. So it really just infringes upon just our basic rights enshrined in the Constitution in terms of freedom of access to information and free speech.
Caruth: Yeah. And then going forward, I mean, does this law, does it hinder or change the mission of the library and what you guys hope to do? And, and yeah, I don't know, what does this imply moving forward, or does it change anything?
Johnson: Yeah. I think part of that will be largely determined community by community. I would argue that no librarians in this state have done anything wrong. And I would continue to argue that we don't intend to do anything wrong. And as long as we're providing the community access to the information that they seek and need. And so I seek comfort in that knowing we're just reflecting back to the community what they've told us is important to them. And I think that's where we'll be. And it's different communities that is defined differently for each community and their interests and needs.
Caruth: So yeah. And then I guess lastly, I guess Aug. 14 is when the library state library board meets. Is there anything you guys are pushing for before then, or do you have anything happening before the board meets?
Johnson: No. Well, the opportunity for public comment window closed. I forgot the date. But they gave us 30 days for public comment. And the rest. It's really been radio silence from the State Library. They're in a tough spot trying to implement the rules as they come down through the Department of Education. And we're going to learn more on the 14th. And when they do meet.
Caruth: So nice. All right. Well, David, that's mostly what I had for you. Is there anything else you want to add? Say, think people should know?
Johnson: Yeah. I just continue to support your public library. We're more than just a collection of materials. We have programs, services. There's so many things that you can come to your public library for that will settle this. We will get it figured out. But let's not ever forget that the public libraries in all communities serve a vital role in improving our quality of lives. And so that's where we are.
David Johnson is the executive director of the Fayetteville Public Library. He spoke with Ozarks at Large's Daniel Caruth last week.
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