Will the Arkansas AG say whether Act 372 covers cartoon depictions of minors, or only depictions of identifiable real children?
Plain-English summary
State Senator Mark Johnson asked the AG for clarification of Act 372 of 2023, the new Arkansas law allowing felony obscenity charges against librarians who supply obscene material to minors. Specifically, Senator Johnson reported that a local prosecutor had said Act 372 only covers drawings or cartoons that depict actual, identifiable children, not generic representations of minors in obscene scenes. He asked the AG to clarify the scope.
The AG declined to answer. On June 2, 2023, four days before this opinion request, the Fayetteville Public Library and other plaintiffs had filed a federal lawsuit (Fayetteville Public Library v. Crawford County, No. 5:2023cv05086) in the Western District of Arkansas challenging Act 372. The case directly raised the scope of the statute and its constitutionality. The AG's office has a long-standing policy of declining to opine on matters in active litigation. Citing that policy and the pending case, the AG declined to interpret Act 372 in a formal opinion.
Why the policy matters. AG opinions are persuasive but not binding. If the AG had issued an interpretation while the federal case was pending, the opinion could have been used by parties as authority in litigation, complicating the AG's role as the state's chief legal officer (who would be defending Act 372 in some contexts and prosecuting under it in others). Sitting out of the interpretation question while a federal court resolved the constitutional and statutory issues is the cleaner posture.
Effective date note. Act 372 was passed without an emergency clause, so it took effect on August 1, 2023, the standard non-emergency effective date for that legislative session.
The deeper takeaway: this opinion does not interpret Act 372. Its only substantive content is the timing of the act's effective date and the fact that the statute was being litigated. For the actual interpretation, look to the federal court rulings in the Fayetteville Public Library case and any later AG opinion issued after that case is resolved.
What this means for you
Librarians and school librarians in Arkansas
This opinion does not resolve your question about how Act 372 applies to graphic novels, cartoons, or other visual material involving minors. It does not give you legal cover. Until the federal court resolves the Fayetteville Public Library litigation (or until a later AG opinion is issued), the legal interpretation is contested.
Practical posture in the meantime:
- Talk to your library's legal counsel before adopting or removing material in response to Act 372.
- Document your collection-development policies, age-appropriateness reviews, and material-access controls. Procedural records may matter if charges are ever brought.
- Track the federal litigation. The case docket is publicly available through PACER and through the plaintiffs' attorneys (ACLU of Arkansas and others).
- Coordinate with the Arkansas Library Association for shared guidance.
School board members and superintendents
Your district's policy on materials should be set by counsel, not by individual prosecutors' verbal statements. The local prosecutor mentioned in Senator Johnson's request had a particular view (only real, identifiable children). That is not binding on other prosecutors or on courts. Setting policy based on one prosecutor's statement creates inconsistency across districts.
If your district's counsel finds the law unclear, document the ambiguity in board minutes. Decisions made on the basis of unclear law, with documented good-faith effort to comply, have a stronger posture in any later challenge.
Local prosecutors
The pending federal litigation will likely produce a definitive interpretation of Act 372's scope. Until then, charging decisions are exposed to the question being adjudicated. Conservative posture: focus charging decisions on conduct involving real, identifiable children where the elements are clearly met, and wait for the courts to resolve the broader question.
Civil liberties attorneys
The AG's decline-to-opine has no precedential weight, but it confirms that the question of cartoon/drawing scope is genuinely in play. Use the federal litigation to develop the interpretive record. The decline is not state acquiescence in any particular reading.
State legislators considering follow-up legislation
If the General Assembly wants to clarify Act 372 (in either direction), the path is amendment. The AG's decline implies that the statute's scope is uncertain enough that even the AG is not willing to formalize an interpretation while courts are working through it. Legislative clarification could resolve the uncertainty.
Book publishers and graphic novel authors
Sales and distribution into Arkansas are not directly addressed by this opinion. Watch the federal litigation for the operative interpretation. If you publish graphic novels with mature themes that may include depictions of minors (Maus, Gender Queer, Fun Home, etc.), engage Arkansas-specific legal counsel to assess distribution risk.
Common questions
Does this opinion say Act 372 only applies to real children?
No. The opinion takes no position on the scope. It declines to answer because of pending litigation.
Does declining to answer mean the AG agrees with the questioner?
No. The AG-office policy of declining to opine on matters in litigation is independent of the merits. The decline is procedural, not substantive.
Where can I find the actual interpretation of Act 372?
The interpretation will come from the federal court ruling in Fayetteville Public Library v. Crawford County and any subsequent appellate proceedings. Arkansas Supreme Court rulings on related provisions or AG opinions issued after the litigation resolves may also be relevant.
Is Act 372 in effect now?
Act 372 took effect August 1, 2023, the standard non-emergency effective date. Some provisions of the act may be enjoined or modified by the federal litigation; check current case status.
Can I rely on a prosecutor's verbal statement that something is allowed?
Verbal statements from individual prosecutors are not binding on other prosecutors or on courts, and they do not create immunity. Get written legal counsel before relying on prosecutorial discretion as a basis for action.
Will the AG issue a follow-up opinion after the litigation?
Possibly. The decline-to-opine policy applies during pending litigation. Once a case is final, the AG's office may issue a substantive opinion if a legislator or other authorized requester asks. There is no guarantee, however.
Background and statutory framework
Act 372 of 2023 created felony obscenity charges against persons (including librarians) who provide obscene material to minors in some circumstances. The act also created a procedure for challenging library materials at the local level. The full text and current status of the act are available through the Arkansas General Assembly's legislative website.
The act lacks an emergency clause, so it took effect August 1, 2023, the default non-emergency effective date for the 2023 legislative session (per A.C.A. provisions and AG Opinion 2023-031).
The pending federal litigation, Fayetteville Public Library v. Crawford County, No. 5:2023cv05086 (W.D. Ark.), filed June 2, 2023, challenges aspects of Act 372 on First Amendment and other grounds. The plaintiffs include public libraries, library patrons, the ACLU of Arkansas, and others. The case has produced rulings and may produce further interpretive guidance.
The AG's policy of declining to opine on matters in pending litigation is documented in earlier opinions (e.g., Ops. 2016-027, 2010-047). It rests on (a) avoiding interference with judicial resolution and (b) preserving the AG's role as legal advisor to multiple state actors with potentially differing positions.
Citations
- Act 372 of 2023 (Arkansas; obscenity / library materials)
- Fayetteville Public Library v. Crawford County, Arkansas, No. 5:2023cv05086 (W.D. Ark. filed June 2, 2023)
- Ark. Att'y Gen. Op. 2023-031 (effective dates for non-emergency legislation)
- Ark. Att'y Gen. Op. 2016-027 (decline-to-opine on pending litigation)
- Ark. Att'y Gen. Op. 2010-047 (decline-to-opine on pending litigation)
Source
Original opinion text
Opinion No. 2023-028
June 6, 2023
The Honorable Mark Johnson
State Senator
Post Office Box 241022
Little Rock, Arkansas 72223
Dear Senator Johnson:
You requested my opinion regarding Act 372 of 2023 and possible "felony charges against librarians who supply obscene items to minors." As background for this request, you explain that you "need a clarification" to "protect both our kids and the school librarians." You further report that a local prosecutor indicated that drawings or cartoons of minors engaged in sexual acts, like those contained in Gender Queer: A Memoir, are insufficient for charges of obscenity under Act 372 unless the drawings or cartoons represent an actual, identifiable child. With this background, you have asked:
Under Act 372 of 2023, [for obscenity charges to be filed] does a drawing or cartoon of sexual acts between minors have to depict actual, identifiable children or just a representation of minors involved in obscene acts?
RESPONSE
I must respectfully decline to opine on your question because of pending litigation, the outcome of which could directly affect the issues you raised. It is the long-standing policy of the Office of the Attorney General, as a member of the executive branch, to decline to opine on matters that are pending before the courts for resolution.
I regret that I cannot be of assistance in this matter. Please do not hesitate to contact me if I may be of future assistance in some other respect.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General