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Arkansas Supreme Court Rules on Harmful to Minors Case
Yesterday the Arkansas Supreme Court issued an opinion answering certified questions from the U.S. District Court seeking an interpretation of Act 858, the States amendment to its harmful to minors display law. The Comic Book Legal Defense Fund and a number of other plaintiffs challenged the constitutionality of the Act.

CBLDF Director Charles Brownstein explains, The Court adopted a strict interpretation of Act 858 according to its plain meaning, which is how we argued the statute. We feel that there is serious constitutional peril in the Act as it is written, and think that the answers to these questions will likely result in the amended portion of the statute being held unconstitutional when it returns to the District Court.

The Court responded to four questions concerning the laws meaning. The first question asked whether the statute is intended to protect all minors, or may be interpreted to protect only the oldest minors. The Court unanimously held that harmful to minors applies to all minors, and cannot be narrowed to a subset of older or younger minors.

In response to the second certified question concerning the Acts definition of display, the Court defined display as simply shelving the product. The majority said, if material harmful to minors is shelved on a bookshelf, even without some other effort made to draw attention to it, it is displayed within the meaning of the statute. Even if a book only has harmful content, but not a harmful cover, the bookseller could still be subject to prosecution if that book were not obstructed from view and physically segregated. Three justices dissented from this answer, arguing that the plain meaning of display is exposed to view.

The third question asked the court to clarify whether the Acts allow to view provision was breached if a bookseller or librarian merely shelved material which is harmful to minors or if he or she must affirmatively give permission to the minor to view those materials. In other words, does allow to view connote active or passive involvement on the part of the bookseller? The Court unanimously ruled, The language of the statute indicates that a bookseller must be aware that a minor is viewing harmful material, and then deliberately turn a blind eye to that activity, before the bookseller will have allowed a minor to view harmful material.

The final question asked the court to define what booksellers must do to satisfy the safe harbor provision, which requires that harmful to minors materials be physically segregated in a manner that prohibits access by minors. The Court ruled the safe harbor provision requires only that some physical obstacle stand between minors and the area where prohibited material is displayed, so that minors have no access to such material. Although this permits the booksellers to choose the method best suited to their individual establishments, it remains for the federal court to ultimately determine whether such a requirement violates the First Amendment rights of booksellers, librarians, and their adult customers.

The case now returns to the District Court, Eastern District of Arkansas, where the Arkansas Supreme Courts answers to these certified questions will inform the decision on the Acts constitutionality. Act 858 is not being enforced while this case is underway.

This was a sensible decision reflecting retailers legitimate concerns, Charles Brownstein said. While this case is returning to the District Court, retailers will be able to continue conducting business as usual under Arkansas pre-existing protections concerning the sale and dissemination of inappropriate material to younger minors. They need not fear prosecution under this amendment.

The CBLDF joined Shipley Inc, D/B/A That Bookstore in Blytheville; Arkansas Library Association, American Library Association, American Booksellers Foundation for Free Expression, Association of American Publishers, Freedom to Read Foundation, International Periodical Distributors Association, and ACLU of Arkansas in bringing this case. It is being argued by Michael Bamberger of Sonnenschein, Nath, and Rosenthal.