Will the Arkansas AG say whether Act 372 covers cartoon depictions of minors, or only depictions of identifiable real children?

Plain-English summary

Senator Mark Johnson asked whether drawings or cartoons of minors engaged in sexual acts must depict actual, identifiable children for obscenity charges under Act 372 of 2023, or whether representations of minors would suffice. The Attorney General declined to answer. He said pending litigation could directly affect the issue and cited his office's long-standing policy against opining on matters before the courts.

The opinion's footnotes add limited context. Footnote 1 says Act 372 lacked an emergency clause and would take effect August 1, 2023. Footnote 2 cites Fayetteville Pub. Library v. Crawford Cty., Ark., filed June 2, 2023. Footnote 3 cites earlier Attorney General opinions for the pending-litigation policy. The opinion gives no interpretation of the drawing-or-cartoon question.

What this means for you

Readers assessing Act 372

This opinion provides no answer about which depictions Act 372 covers. The question recited in the opinion includes a local prosecutor's reported view, but the AG did not adopt or reject it. The effective date in footnote 1 is a statement made when the opinion was issued; the opinion does not report later litigation outcomes or the Act's current operation.

Common questions

Does this opinion say Act 372 covers only actual children?
No. The AG declined to answer that question.

Why did the AG decline?
He said pending litigation could directly affect the issues raised and invoked the office's policy of not opining on matters pending before courts.

Does the opinion mention an effective date?
Yes. Footnote 1 states that, without an emergency clause, Act 372 would be effective August 1, 2023.

Background and statutory framework

The opinion identifies Act 372 of 2023 as the subject of the request. It cites the federal Fayetteville Public Library litigation in footnote 2 and Attorney General Opinions 2016-027 and 2010-047 in footnote 3. It does not analyze the Act's obscenity provisions.

Citations

• Act 372 of 2023
• Arkansas Attorney General Opinions 2023-031, 2016-027, and 2010-047
• Fayetteville Pub. Library v. Crawford Cty., Ark., No. 5:2023cv05086 (W.D. Ark.), filed June 2, 2023

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

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 1 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, 2 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. 3

1
Because Act 372 of 2023 lacks an emergency clause, it will be effective August 1, 2023. Ark. Att’y Gen. Op. 2023-031 (providing effective dates for legislation passed without an emergency clause or other specified effective dates). 2 See Fayetteville Pub. Library v. Crawford Cty., Ark., No. 5:2023cv05086 (W.D. Ark.), filed June 2, 2023.
3
See Op. Att’y Gen. 2016-027, 2010-047 (stating that Office of the Attorney General office does not issue opinions related to pending litigation). The Honorable Mark Johnson State Senator Opinion No. 2023-028 Page 2

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