Library chief breaks down challenge to Arkansas obscenity law allowing prosecution of librarians

A federal judge recently issued a preliminary injunction against a new Arkansas law that would have allowed criminal charges against librarians and booksellers for making “harmful” materials available to minors.

The measure also would have created a new process for reconsideration: challenging library materials based on their content and requesting them to be moved to adult-only sections. It was signed by Republican Gov. Sarah Huckabee and was set to take effect on Aug. 1.

That was until a group of libraries and bookstores in the state, led by the Central Arkansas Library System, sued over the measure on First Amendment grounds. CALS Executive Director Nate Coulter spoke to ABC News’ "Start Here" podcast host Brad Mielke about how the law would have affected libraries.

BRAD MIELKE: Nate Coulter, thanks for being with us. First off, is that a library that you’re in right now that I’m seeing over your shoulder?

NATE COULTER: I am, it's my office, but yes, there are lots and lots of books under this roof.

MIELKE: Can you just describe maybe a little bit about the Little Rock library system?

COULTER: Yes, the centralized library system is the largest public library system in the state. We have about 11% of the state's population. We cover two counties, Pulaski, which is where Little Rock is, and a neighboring mostly rural county, Perry County. We have 17 buildings, about 15 branches. We have a theater, and we have a space downtown that we call our rocket lab for entrepreneurs. And we do a lot of things that libraries have always done.

MIELKE: And so I was wondering that as this law has been passed – I mean, it is a passed law, it's just not going into effect because of this injunction – how would this law affect libraries, specifically, and librarians? Like are there scenarios where, because of this law, you can imagine happening?

COULTER: The law did go into effect yesterday. The portions of it that we challenged, there are only two of them, have been stayed by the court, enjoined by the court. We challenged the first section of the statute, which essentially made it a Class A misdemeanor for making available books in a library that could be deemed harmful to minors.

What the court said is that that standard – and the state acknowledged this in a colloquy in the courthouse – that standard for what's harmful to minors is unconstitutional, because you're applying the same standard to a 5-year-old that you would to a 17-year-old. Obviously, a book that had some sort of sexual content in it [that] would be highly appropriate for 17-year-olds, who are minors, and not appropriate, perhaps harmful, to a 5-year-old.

So the standard in the statute was to treat everyone under 18 the same. That deprives people who are 17, mature minors, of their constitutional right.

The other section we challenged was a section that created a somewhat cumbersome and redundant process for reconsideration. That's the library speak for if a book is in a collection of a library and someone thinks it shouldn't be there – and that can be for any number of reasons, historically – they think the content is too lewd or too sexual for children, let's say, and they don't want it to be in a certain section in the library. All those things come up historically, rarely, but they have come up.

The state statute changed that process to create a review process internally and then had that process wind up in the hands of local elected politicians to determine whether something was appropriate to the collection. What the problem was with Section One that's enjoined is that it said you're going to be criminally subjected to one year of prison if you, quote, “make available these books in your library.”

The only way the court said to stop that is to either keep everyone under 18 out of your library or isolate certain things that are adult content or 16-year-old acceptable content away from all the others in the library. How do you do that, you lock it –

MIELKE: So it's no longer just a children's wing of the library, but like, let's enforce not letting anyone come in the adult section?

COULTER: Yes, right. It was basically, if it's available – and the state could not answer the judge's questions about, what does it mean? It’s on the shelf, but the book’s not open, but it's just on the shelf and it contains sexually graphic descriptions, as many, many books do in our culture – is that making it available and subjecting the library staff to criminal charges? The state didn't have an answer for that, because the statute is so vague.

MIELKE: And as far as the criminal prosecutions would go, does that mean that under this statute – I assume police are not investigating the shelves – does it mean, like, parent or whoever, some random activist, could just call up the police and say, “Hey, that librarian is letting kids check out these books, arrest that man”?

COULTER: Right, wouldn’t even have to check the book out. If the book is in our library and someone goes to the prosecuting attorney and says, “They've got a copy of a book that describes teenage sex in a way that I don't think is appropriate” – just take, for example, the Pulitzer Prize-winning book by Barbara Kingsolver, “Demon Copperhead.” It has descriptions of teenage sex. If someone says, “That book shouldn't be in a library where children are there, because they're minors. That could be harmful to my 5-year-old, my 8-year-old. I don't want my child to be exposed to that.”

Under the statute, until the judge enjoined it, yes, any librarian could have been subjected to prosecution if a parent or someone complaining about it had made the case that they could have been brought up on charges of presenting or making available content that's harmful to a minor.

MIELKE: Do you have a plan in place if this injunction was lifted, if this became law very soon? Is there a plan for you to block off wings or clear the shelves of certain books or whatever?

COULTER: Part of the reason for bringing the lawsuit, in addition to being told by expert First Amendment lawyers that it was unconstitutional, was there was no way to give my staff comfort or advice about how to avoid being theoretically exposed to incarceration. So we had no plan for trying to deal with Section One. We weren't going to exclude minors from our library. We weren't going to quit buying books that adults have a right to.

MIELKE: Like, you hadn't hired security guards to keep the kids out or something?

COULTER: Well, one of the things that I told the board, I said, it’s impractical. For example, something that we now are all becoming familiar with in the culture, you know, state marijuana dispensaries, where there are police at the door, there are all sorts of checks. We have 150,000 square feet in the main library where I'm sitting today, hundreds of thousands of books. Were we supposed to put someone, a staff member, at every aisle?

If you saw a 7-year-old wandering away from her parent, you had to steer that child away? It's not feasible to have that much staff to police the access to these books that might be deemed harmful to minors.

And if they're made available, if they're on the shelf, as the state conceded, that's theoretically making it available. In a society, in a democracy like ours, we acquire books for a wide diversity of readers and we acquire books with diverse viewpoints.

There was a colloquy in the court ¬– we have copies of “Mein Kampf” in the library. That obviously doesn't mean that I and the other people who are involved in running the library endorse the author's antisemitic viewpoints. But that's a book that we consider to be, as most libraries probably around America consider to be, an important part of Western history and the collection needs to have it.

So there aren’t judgments being made about the content of these books, but we think that's the judgment that the people who've initiated this kind of law want. They want books out that they don't like.

And we say, “Look, don't read them. Don’t let your children read them. Be engaged in what your children are doing. We want children to read. We want them to read what they want to read. We want them to read what you want them to read. But we don't want you telling what somebody else's children can read.”

MIELKE: I do wonder, though, if the argument to that is, you have these parents who are upset by the idea – not just that their kid has the opportunity to find books that they have viewpoints they might not agree with, but that these books might also be offered or evangelized to their kid by that helpful librarian or by that helpful bookstore owner who's like, “Hey, you might enjoy this book,” or “Hey, you're 17 or you're 15 or you're 12. I don't know what ¬– you know – but like, you seem old enough for this.” And that that ends up being something that they're profoundly uncomfortable with. I mean, does that resonate with you at all?

COULTER: When people tell – and I try to respect that, when I hear that – I ask them to come visit me, meet me at one of our branches. Let's walk through the library. Let's let you watch, observe what happens. Typically what happens, and this is ancient. I mean, when I was a child in small town south Arkansas, and I would go to the library with my mother, she would tell the librarian, “He's interested in sports books. He's interested in history books for children, for, you know, young adults,” – what librarians call them. And the librarian in the small town would keep track of what books were coming in. She'd call my mother and they'd take me in.

So the parent in that model, which is not unusual, will express to the librarian, or in the case of the older child, the child will tell the librarian. Or in a democracy, with people having the freedom to make their own choices, the child may just browse around, like a lot of us do in a library, looking to see what authors we know and like.

I’ve raised three kids. I worried a lot more about what my kids were doing with their devices or with the access they had to the internet than I ever worried about them in the library. Because, back to the other point, librarians are not there saying, “Hey, have you thought about this? Have you read books about transgender you might like?” They don't do that. They do not do that. And that’s an absolute malignment of public librarians to suggest that librarians are grooming.

I've been accused of being a groomer. Or that they are doing things to drive an agenda.

The only agenda librarians have, most of whom are introverts, by and large, is to help people find whatever resource they want that they think will enhance and enrich their lives and help them reach their potential. They don't have an agenda. They're not trying to sell, you know, Nikole Hannah Jones’ 1619 to the child who's working on a high school history paper.

They say, “What's your topic? How can I help you? What would you be interested in? Here’s some books on the subject matter of World War II. Here's some books on slavery or systemic racism.” They are not telling children, “This is what you ought to read if you want to try this out. I'll help you.” It's just not at all the way it happens.

So, there is a huge misperception or misinformation being driven by the people who want to brandish librarians as somehow sexualizing children or creating alternatives for the values that the child's parents may have. That's just not happening.

MIELKE: Really interesting. And the point you were making about the phone and evolving technology over the last – ‘cause I always wonder what's changed in the last five, 10, 20 years – you got to think that that phone might be one of the reasons that people feel like they just don't have enough control over what kids nowadays see.

Nate Colter, executive director of the Central Arkansas Library System in Little Rock, the lead plaintiff on this lawsuit that’s been blocked now temporarily. Thank you so much for making the time for us.

COULTER: Thank you, Brad.