Shipley, Inc. v. Long  
No. 4-03cv481 (E. D. Ark), Memorandum Opinion and Certification Order (Feb. 4, 2004) and Memorandum Opinion and Final Order (Nov. 16, 2004)

DOCUMENTS

1. Arkansas House Bill 1525 
2. Complaint filed June 23, 2003 
3. Press release about the filing of the complaint
4. Stipulation dropping attorney general and governor as defendants/agreement not to enforce law
5. Plaintiffs’ reply memorandum of law and opposition to defendants’ cross-motion for summary judgment
6.  Memorandum Opinion and Certification Order
7. Four questions certified to the Arkansas Supreme Court
8. Order Granting Interim Preliminary Injunctive Relief
9. Plaintiffs' brief to Arkansas Supreme Court

Summary:  The case was a challenge to an Arkansas law that would have required retailers and libraries to blinder and segregate constitutionally protected materials that might be considered harmful to minors.

History:

This case was a challenge to an Arkansas law (1) that would have required retailers and libraries to prevent all minors from accessing constitutionally protected materials that might be considered harmful to minors by both putting such material behind blinder racks and physically segregating it.

The case was filed (2) on June 23, 2003. Plaintiffs included That Bookstore in Blytheville, American Booksellers Foundation for Free Expression, Arkansas Library Association, Association of American Publishers, Comic Book Legal Defense Fund, Freedom to Read Foundation, International Periodical Distributors Association, and the ACLU of Arkansas.

The plaintiffs filed a motion for summary judgment on July 25, 2003. The defendants responded and cross-moved for summary judgment, and plaintiffs filed (5) a reply brief.  The defendants have agreed not to enforce the amendment until the judge decides the case on the merits. In exchange, plaintiffs have agreed to drop the governor and attorney general, who have no enforcement power, as defendants (4).  Oral arguments were heard on December 8, 2003.  On February 9, Judge Eisele wrote a memorandum opinion (6) certifying four questions (7) to the Arkansas Supreme Court.  He also issued an interim temporary injunction, so that none of the challenged portions of the law can be enforced (8).

The Arkansas' Supreme Court heard oral argument on the questions certified by Judge Eisele on October 7, 2004 and issued an opinion on February 9th.  

• The first question addressed whether the statute was intended to apply to younger minors and older minors without consideration of the potential serious literary, artistic, political, or scientific value to older minors of works that would be considered inappropriate for younger children.  The court unanimously held that "harmful to minors" is to be judged according to the age of the child.  

• The second question related to whether display restrictions apply only to covers or to content as well.  The court determined that 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 statue. 

• Unanimous response to the third question held that the meaning of an "allow to view" provision implied that a bookseller must be aware that a minor is viewing "harmful" material and must deliberately permit the minor to view that material in order to "allow to view."  

• The final question asked the court to define what booksellers and librarians would have to do in order to avail themselves of a "safe harbor provision" including both "blindering" and segregation requirements.  The Court's response was that "the `safe harbor' provision requires only that some physical obstacle stand between minors and the area where prohibited material is displayed. 

On November 16, 2004, U.S. District Judge Thomas Eisele of the federal court in Little Rock, Arkansas struck down the provisions of the Arkansas Code criminalizing the display of books which are inappropriate to younger minors but constitutionally protected as to older minors and adults.  To see the decision, click here.  For a press release about the case, click here. 

On January 11, 2005, Arkansas appealed to the 8th Circuit Court of Appeals the decision of U.S. District Judge Eisele.  On February 10, 2005, the state withdrew the appeal and agreed to a fee settlement, ending the case.  The opinions of the Arkansas Supreme Court defining the terms in Arkansas display to minors law and of the U.S. District Court striking down the provisions of the Arkansas law will stand.