A federal appeals court heard arguments Thursday to uphold the injunction of a 2023 Arkansas law governing challenges to library content, while Arkansas’ solicitor general said the plaintiffs’ allegations were “too speculative.”

The three-judge panel from the 8th U.S. Circuit Court of Appeals in St. Louis will rule on whether two sections of Act 372 of 2023 can go into effect. A district judge blocked the provisions in 2024, and the state appealed the ruling in 2025.

The two challenged sections would create criminal liability for librarians who distribute content that some consider “obscene” or “harmful to minors,” and give city and county governing bodies the final say over library content.

The 18 plaintiffs in the case include libraries, bookstores, advocacy groups and individual library patrons. The defendants are Arkansas’ 28 prosecuting attorneys, Crawford County and its county judge, Chris Keith.

Crawford County lost another federal lawsuit in 2024 after three parents claimed the county library violated the First Amendment by moving LGBTQ+ children’s books into separate “social sections” that only adults could access.

The library made this move after county residents complained at quorum court meetings about the availability of LGBTQ+ books. Crawford County officials cited Act 372 as a reason to keep the books segregated, even before the statute became law.

This made Crawford County an example of how one of the challenged sections of Act 372 would have worked in practice, said John Adams, the plaintiffs’ lead counsel.

He noted that libraries already had content challenge policies before Act 372, which would create a new avenue for books to be removed from children’s reach but not provide any way to challenge a book’s removal.

“Act 372, Section 5 takes what was otherwise a fairly comprehensible due process…and turns it into a kind of one-way ratchet that gives censorious parts of the local population power that my clients don’t have,” Adams said.

Crawford County residents compiled a list of LGBTQ+ books they wanted out of children’s reach, but Keith said in his deposition in the other lawsuit that he had not reviewed the books even though he would be partially responsible for enforcing Section 5 of Act 372, Adams told the judges.

The potential harm of enforcing the law’s other blocked provision, Adams said, is the threat of jail time for librarians and booksellers for simply having books on their shelves that some consider “harmful to minors.”

Section 1 of Act 372 would make “furnishing a harmful item to a minor” a Class A misdemeanor. The law leaves the definitions of “furnishing” and “harmful” up to overly broad interpretation that could lead to viewpoint discrimination, U.S. District Judge Timothy Brooks wrote in his injunction ruling.

The state’s argument

Arkansas Solicitor General Autumn Hamit Patterson argued that public libraries’ curation processes inherently practice content-based discrimination “by deciding what books would be edifying or beneficial for their communities and serve their interests, and which would not.”

Patterson also disputed Adams’ claim that the threat of jailing librarians was directly traceable to the Crawford County defendants’ enforcement of Section 5 because the county library’s “social sections” predated Act 372 and the library was ordered in the other lawsuit to return the LGBTQ+ books to their original sections.

The plaintiffs have not identified specific books that would likely be challenged under Act 372, Patterson said.

“Their testimony even states that they don’t believe the books in their collection were always in the obscenity provision’s definition,” she said.

An unchallenged provision of Act 372 removes schools and public libraries from the part of Arkansas state code that previously exempted them from prosecution for disseminating obscene content. Another unchallenged provision made school and public library employees liable for a Class D felony if they “knowingly” distribute obscene material or inform others of how to obtain it.

School boards have the final say over challenged materials in public school libraries, according to the final unchallenged section of Act 372, which has been in effect since August 2023.

Additionally, attorney Forrest Stobaugh argued on behalf of the Crawford County defendants that they should not be liable for attorneys’ fees in the county’s other lawsuit. The county cited its ongoing debate over the legal fees as its reason for joining the state’s appeal of the Act 372 ruling last year.

“The fee award must be reasonable, and I would submit it’s per se unreasonable to hold a defendant jointly and severally liable for fees from a plaintiff that never actually sued it,” Stobaugh said.

Similar litigation

Chief Judge Steven Colloton said the 8th Circuit panel “will file a decision in due course” but did not indicate a specific time. He and the other two judges, Ralph Erickson and L. Steven Grasz, offered little comment on Adams’ and Patterson’s arguments.

President Donald Trump appointed Grasz and Erickson to the appeals court in 2017. Colloton was appointed in 2003 by then-President George W. Bush and has been the court’s chief judge since 2024.

In April, another 8th Circuit panel allowed a 2023 Iowa law to go into effect, requiring the removal of books containing “descriptions or visual depictions of a sex act” from Iowa public school libraries. A district judge had previously blocked the law on First Amendment grounds.

Erickson was on the three-judge panel that ruled “the First Amendment does not guarantee students the right to access books of their choosing at taxpayer expense.” Patterson said Thursday that this conclusion supports the state’s defense of Act 372.

The oral arguments came before the court while the Arkansas Department of Education is accepting public feedback on proposed rules requiring libraries to restrict children’s access to “sexually explicit materials” in order to receive state funding. A 2025 bill with similar restrictions failed in the Arkansas Legislature in 2025.

The education department will accept feedback online until Monday and will hear in-person public comment on the rules at 10 a.m. Friday at its Little Rock headquarters.

Arkansas Advocate is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Arkansas Advocate maintains editorial independence. Contact Editor Andrew DeMillo for questions: info@arkansasadvocate.com.