Appeals Court Reverses Key Book Banning Decision in Arkansas
The ruling comes nearly three years to the day since a federal judge first temporarily blocked key provisions of a state law known as Act 372, which now exposes librarians and booksellers in the state to criminal liability for making allegedly “harmful” books accessible to anyone under 18.
In another blow to the freedom to read, the Eighth Circuit U.S. Court of Appeals on July 30 vacated a permanent injunction blocking two provisions of Arkansas state law Act 372, holding that the District Court erred in finding the provisions to be unconstitutionally vague and overbroad.
Signed into law on March 30, 2023, Act 372 was one of several high profile book banning laws pushed in conservative-controlled legislatures under the guise of “parental control.” The architects of Act 372 claimed that the law was needed to keep “pornographic” material from children. Critics of the law, however, said those claims were a fig leaf to justify going after constitutionally protected diverse materials, such as books involving the LGBTQ+ community. And on June 2, 2023, a library-led coalition of 18 plaintiffs filed suit challenging several provisions of the law on constitutional grounds.
The appeals court ruling comes nearly three years to the day since federal judge Timothy Brooks, on July 29, 2023, first temporarily blocked the provisions, and after Brooks in December 2024 granted summary judgment to the plaintiffs and permanently blocked the provisions from taking effect.
The decision now lets the challenged provisions of Act 372 take force, exposing librarians and booksellers in the state to criminal liability for making allegedly inappropriate or “harmful” books accessible to anyone under 18, punishable by fines and up to a year in jail.
Plaintiffs in the case included the Central Arkansas Library System and an alliance of library, publishing, author, bookseller, and advocacy groups, including the ACLU, the Freedom to Read Foundation (the ALA's First Amendment Defense arm), the Association of American Publishers, the American Booksellers Association, the Authors Guild, the Comic Book Legal Defense Fund, and Democracy Forward.
'Why Has the State Found It necessary to Target Librarians for Criminal Prosecution?'
When Act 372 was first enjoined, Brooks's decision was hailed as a massive, clear-eyed victory amid an unprecedented surge in politically motivated book bans and book banning laws targeting libraries.
In his lengthy July 29, 2023 opinion and order, judge Timothy L. Brooks, an Obama appointee, concluded that the challenged provisions of the law were "too vague to be understood and implemented effectively" and that, if enacted, would "permit, if not encourage, library committees and local governmental bodies to make censorship decisions based on content or viewpoint, which would violate the First Amendment."
Specifically, the suit challenged two of the law’s central provisions: a section that regulated the accessibility of materials alleged to be harmful to minors; and a sweeping new "challenge procedure" that empowers "any person" to challenge the “appropriateness” of materials in an Arkansas public library’s collection. Crucially, Act 372 also removed the state’s existing "exemption from prosecution" provision.
Notably, Brooks prefaced his initial 49-page decision to issue a preliminary injunction with a quote from Fahrenheit 451 author Ray Bradbury: “There is more than one way to burn a book. And the world is full of people running about with lit matches."
From there, citing an array of case law—including a 2003 Arkansas 'harmful to minors' measure with strikingly similar language, which was struck down by the courts in 2004—the judge questioned the law's aim, and defended the work of librarians.
“For more than a century, librarians have curated the collections of public libraries to serve diverse viewpoints, helped high school students with their term papers, made recommendations to book clubs, tracked down obscure books for those devoted to obscure pastimes, and mesmerized roomfuls of children with animated storytelling,” Brooks wrote. “So, the passage of Act 372 prompts a few simple, yet unanswered questions. For example: What has happened in Arkansas to cause its communities to lose faith and confidence in their local librarians? What is it that prompted the General Assembly’s newfound suspicion? And why has the State found it necessary to target librarians for criminal prosecution?”
In another key passage, Brooks observed that the law’s challenge provision was “very poorly drafted,” and suggested its "fatally vague" provisions may have been intentional. “Perhaps any vagueness may be chalked up to the general assembly’s haste to enact Act 372, but the lack of clarity seems to have been by design,” he wrote. “After all, by keeping the pivotal terms vague, local governing bodies have greater flexibility to assess a given challenge however they please rather than how the constitution dictates.”
And in another key passage, the judge rejected the state’s “government speech” argument, forcefully concluding that public libraries and librarians are not state actors.
“The vocation of a librarian requires a commitment to freedom of speech and the celebration of diverse viewpoints unlike that found in any other profession,” Brooks wrote. “By virtue of its mission to provide the citizenry with access to a wide array of information, viewpoints, and content, the public library is decidedly not the state’s creature; it is the people’s.”
'No Constitutional Right'
But in a brief, technical decision that lacked the clarity, purpose, and common sense of Brooks's findings, a conservative three-judge panel of the Eighth Circuit—including one George W. Bush appointee and two Trump appointees—tossed Brooks’ ruling, finding that some of the plaintiffs lacked standing to challenge one of the provisions, and, on the merits, held that Brooks erred in finding the law to be vague and overbroad.
Notably, the decision, written by Judge L. Steven Grasz (appointed in 2018 by Trump) held that Brooks failed to properly consider the scope of the plaintiffs’ facial challenge to the constitutionality of the law under the Supreme Court’s 2024 decision in NetChoice v. Moody—which also came into play in the Eighth Circuit's initial decision to lift an injunction on Iowa’s SF 496. But rather than remand the case for a new analysis, as is the norm, the panel decided that Brooks’ read on the law was simply wrong, and reversed.
In a concurrence, judge Chief Judge Steven Colloton, a George W. Bush appointee, acknowledged the obvious merits of the plaintiffs’ claims but cited the Fifth Circuit’s May 2025 decision in Little v. Llano, which is not binding on the Eighth Circuit, in holding that library patrons have “no constitutional right to receive unfettered access to books of their choice at taxpayer expense.”
After a winning streak in court at the end of 2024 and into early 2025, the Arkansas decision is third major loss for the freedom to read at the Appeals Court levels since 2025, including the May 2025 Fifth Circuit opinion in Little v. Llano, and the Eighth Circuit’s decision this spring that allowed Iowa state law S.F. 496, go into effect.
Austin Gelder
In a statement, Arkansas Attorney General Tim Griffin praised the decision. “The court’s ruling allows Arkansas to move forward in enforcing a law that protects children from obscene materials while increasing accountability for public-library curation decisions," he said.
In a statement to the Arkansas Times Holly Dickson, executive director for the American Civil Liberties Union of Arkansas, said the group would continue to fight for the Freedom to read. "Access to ideas and information is fundamental to a free society. Libraries and bookstores exist so people can encounter new perspectives, challenge assumptions, and make up their own minds, not so the government can decide which thoughts are acceptable."
This is a developing story. We will update as more reaction comes in.
