Eighth Circuit Panel Rejects Overbreadth Challenge to Arkansas Law Barring Libraries from Making “Obscene-as-to-Minors” Material Available to Minors

An excerpt from Thursday’s decision in Fayetteville Public Library v. Crawford County, by Judge Eighth Circuit Steven Grasz, joined by Judge Ralph Erickson:

To “protect children from obscenity,” [Arkansas] Act 372’s first section criminalizes “furnishing a harmful item to a minor ….” A person commits this offense “if, knowing the character of the item involved, the person knowingly … [f]urnishes, presents, provides, makes available, gives, lends, shows, advertises, or distributes to a minor an item that is harmful to minors.” Section 1 defines “[h]armful to minors” as

that quality of any description, exhibition, presentation, or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when the material or performance, taken as a whole, has the following characteristics:

(A) The average person eighteen (18) years of age or older applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest in sex to minors;

(B) The average person eighteen (18) years of age or older applying contemporary community standards would find that the material or performance depicts or describes nudity, sexual conduct, sexual excitement, or sadomasochistic abuse in a manner that is patently offensive to prevailing standards in the adult community with respect to what is suitable for minors; and

(C) The material or performance lacks serious literary, scientific, medical, artistic, or political value for minors.

Arkansas can punish violations of § 1 with up to a year of imprisonment.

To “increase accountability for public-library curation decisions,” § 5 requires county and municipal libraries to adopt two written, publicly available policies. The first policy must “establish guidelines for the selection, relocation, and retention of physical materials that are available to the public.” And the second policy must allow people who are “affected by the material” to “challenge the appropriateness of material available in the county or municipal library” and must lay out certain procedures the library will follow, “at a minimum,” when someone lodges such a challenge….

An overbreadth challenge is a special “type of facial challenge traditionally restricted to the First Amendment context.” To win an ordinary facial challenge, a plaintiff “must establish that no set of circumstances exists under which [a statute] would be valid.” But the standard for overbreadth challenges is more lenient. A plaintiff’s “showing that a law punishes a substantial amount of protected free speech, judged in relation to the statute’s plainly legitimate sweep, suffices to invalidate all enforcement of that law ….”

This standard aims to balance “competing social costs.” On “one hand, the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas.” But “[o]n the other hand, invalidating a law that in some of its applications is perfectly constitutional — particularly a law directed at conduct so antisocial that it has been made criminal — has obvious harmful effects.” To strike the right balance, the Supreme Court has “vigorously enforced the requirement that a statute’s overbreadth be substantial, not only in an absolute sense, but also relative to [its] plainly legitimate sweep.” And it has repeatedly warned that “[i]nvalidation for overbreadth is ‘strong medicine’ that is not to be ‘casually employed.'” …

[T]he Arkansas Supreme Court has interpreted § 1’s definition of “‘harmful to minors'” broadly, holding it cannot be read to cover only materials that are harmful to every minor, since this construction would “not protect all minors” from “material that may actually be ‘harmful’ to them ….” And § 1 no doubt raises “greater First Amendment questions” because of this broad interpretation. So courts must use the framework set forth by the Supreme Court in NetChoice to distinguish statutes that are merely broad from those that are overbroad….

[T]he district court speculated that some libraries and bookstores may try to comply with § 1 by “creating strict adults-only areas — into which would go potentially hundreds of books, from disposable paperback romance novels to classics of literature like Romeo and Juliet, Ulysses, Catcher in the Rye, The Handmaid’s Tale, or The Kite Runner.” But courts cannot conjure up their own hypotheticals en route to striking down laws as overbroad. Rather, they must “perform the necessary inquiry set forth in NetChoice,” which turns on the plaintiff’s actual evidentiary record…. [P]laintiffs must “demonstrate from the text of [the law] and from actual fact that a substantial number of instances exist in which the [l]aw cannot be applied constitutionally” to prevail on overbreadth challenges ….

[T]he district court [also] stated … that “there is no set of circumstances under which [§] 1 … would be valid.” If § 1 had no constitutional applications, it would of course be overbroad. But because the district court did not determine § 1’s “full set of applications,” it was in no position to say § 1 can never be applied without violating the Constitution. To the contrary, the Arkansas Supreme Court has recognized that books containing “graphic depictions of sexual conduct” and “nudity” are widely available.. The First Amendment does not leave Arkansas powerless to keep some of these out of children’s hands…. “Two basic principles govern legislation aimed at shielding children from sexually explicit content. A state may not prohibit adults from accessing content that is obscene only to minors. But[ ] it may enact laws to prevent minors from accessing such content.” … Section 1 therefore has a plainly legitimate sweep.

“In this case, … we think it clear that if the appropriate standard is applied,” Plaintiffs’ overbreadth challenge will fail for two reasons….

First, we have held “[i]t is inappropriate to entertain a facial overbreadth challenge when the plaintiff fails to adduce any evidence that third parties will be affected in any manner differently from herself.” This requirement “stems from the underlying justification for the overbreadth exception itself — the interest in preventing an invalid statute from inhibiting the speech of third parties[.]”Plaintiffs did not “adduce any evidence” in this case “that third parties will be affected in any manner differently from [themselves].” Their overbreadth challenge fails as a result.

Second, even disregarding the third-party issue and assuming some applications of § 1 violate the First Amendment, Plaintiffs’ overbreadth challenge fails because we cannot determine § 1’s “full set of applications” from the evidentiary record they put forward. Consequently, we cannot “evaluate which [applications] are constitutional and which are not, and compare the one to the other.” When “[n]o record [i]s made in this respect,” courts “cannot conclude that the [l]aw is substantially overbroad and must assume that ‘whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.'”

For these reasons, the district court erred when it granted Plaintiffs summary judgment on their overbreadth challenge to § 1.

Chief Judge Colloton concurred in the judgment, and noted, among other things:

The court says that there is no evidence that third parties will be affected differently than the libraries and booksellers who brought this action. But the libraries presented evidence that the Act would require them to segregate dozens of books in a way that would affect the manner in which third-party patrons may access the books for review and checkout. The plaintiffs presented lists of books that must be segregated under the statute because they would be “harmful” to the youngest minors while not “harmful” to older minors or obscene to adults.

The court then says that there is “no record” concerning the “full set of applications” of Act 372 to which the court could compare the restrictions on access. The relevant comparator, however, is the statute’s plainly legitimate sweep. There is no evidence or suggestion that the collections include a significant number of holdings that would be obscene to adults, older teenagers, and younger minors alike. The challenged applications of the statute to books that are harmful to younger minors are thus substantial when judged in relation to the statute’s plainly legitimate sweep. If adults and older teenagers have a right to unfettered and undifferentiated access to all books in a library, then a conclusion of overbreadth seems to follow. It would be surprising if the discussion of an overbreadth challenge in Moody v. NetChoice, LLC (2024), required libraries in this sort of case to itemize their entire catalogs for the court.

Even so, for reasons already explained at length by others, I conclude that the overbreadth claim fails because third-party library patrons have no constitutional right to receive unfettered access to books of their choice at taxpayer expense. Little v. Llano County (5th Cir. 2025) (en banc); see Bd. of Educ. v. Pico (1982) dissents. A public library, or a State that regulates a public library, may place certain books in a particular section of the facility, to shield younger minors from harm, without violating the First Amendment rights of other patrons who would prefer to have the collection made available in a different manner. Because the applications of § 1 posited by the plaintiff libraries do not in my view infringe on a constitutional right of third-party patrons, the statute is not unconstitutionally overbroad on its face.

Arkansas Assistant AGs Autumn Hamit Patterson, Mary Erica Crouse, and Noah P. Watson, as well as Forrest C. Stobaugh, James D. Rankin, III, and Samuel S. McLelland, represented the defendants.