Plus: Librarians take on Arkansas book restrictions, another migrant stunt may have originated in Florida, and more…

ELIZABETH NOLAN BROWN

On Friday, a federal judge declared the law unconstitutional, on the grounds that it violates the First Amendment.

In a scathing rebuke of Tennessee’s Adult Entertainment Act (AEA), U.S. District Judge Thomas Parker—a Trump appointee—offered a vigorous defense of free speech.

“The AEA was passed for the impermissible purpose of chilling constitutionally-protected speech,” Parker continued. While “Tennessee has a compelling state interest in protecting the physical and psychological well-being of minors,” the law as passed is neither narrowly tailored nor the least restrictive way to advance that interest.

For one thing, he pointed out, the “harmful to minors” standard applies to children of all ages. The law also applies anywhere a minor could be present, without requiring that they actually be present there. That means things that might be inappropriate for, say, a 4-year-old would be illegal in places where even a 17-year-old might have a chance of seeing them.

“The AEA is both unconstitutionally vague and substantially overbroad,” Parker concluded.

The judge dismissed the state’s argument that the law was permissible because it dealt only with “obscenity which is the most patently offensive in its prurience.” Parker wrote:

There is no question that obscenity is not protected by the First Amendment. But there is a difference between material that is “obscene” in the vernacular, and material that is “obscene” under the law. Miller v. California provides the standard for determining “obscenity” under the law…. Legal obscenity is an exceptionally high standard as one of its prongs requires that the speech “not have serious literary, artistic, political, or scientific value.”…Moreover, speech that is not obscene—which may even be harmful to minors—is a different category from obscenity. Simply put, no majority of the Supreme Court has held that sexually explicit—but not obscene—speech receives less protection than political, artistic, or scientific speech….Whether some of us may like it or not, the Supreme Court has interpreted the First Amenment [sic] as protecting speech that is indecent but not obscene.

You can find the full decision here. Chris Geidner has a good analysis of the decision here.

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“This will necessarily force libraries and bookstores to confine to a secure ‘adults only’ area—and so to segregate from their general patrons and customers—any item that might be deemed harmful to the youngest minor, even if there is no constitutional basis for limiting its availability to older minors or adults,” states their complaint, filed June 2 in federal court.

By so broadly regulating the display of protected materials that are constitutionally
protected as to older minors and adults, the Availability Provision violates the First and
Fourteenth Amendments because it imposes a content-based restriction on speech that (a) is not narrowly tailored, (b) is overly broad, and (c) is vaguely worded.

Arkansas knows that it cannot directly prohibit libraries and booksellers from making books and other items available to their patrons and customers on such a sweeping basis, as its prior attempt to limit the availability of material deemed harmful to minors (in a nearly identical law) was struck down by an Arkansas federal court as “facially unconstitutional under the First and Fourteenth Amendments to the United States Constitution because such provisions are overbroad and impose unconstitutional prior restraints on the availability and display of constitutionally protected, non-obscene materials to both adults and older minors.”

What Arkansas cannot permissibly do directly through the Availability Provision, it likewise cannot not do indirectly through Section 5 of Act 372, which requires that public libraries establish a process through which any “person affected by [a] material” in their collection can challenge the “appropriateness” of that material’s inclusion in the library’s main collection (the “Challenge Procedure”).

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The 16 people flown to Sacramento had been staying at a migrant center in El Paso, Texas. According to Eddie Carmona of PICO California, a group helping the migrants in Sacramento, they accepted an offer from people promising jobs and travel assistance. Instead, they were taken to New Mexico, then flown to Sacramento and dropped in front of the Roman Catholic Diocese, with no notice to anyone in Sacramento and no plans to help the migrants find their footing there.

Bonta claims this bait-and-switch seems to have been arranged and paid for by the state of Florida. If so, it would be the latest in a series of similar stunts the state has orchestrated. Last fall, for instance, Gov. Ron DeSantis arranged to have almost 50 migrants flown from San Antonio, Texas, to the small island of Martha’s Vineyard. A lawsuit filed by several of the migrants claims that Florida officials “made false promises and false representations” in order to lure them onto the plane.

There is, of course, nothing wrong with helping migrants who cross into Southern border states travel around the country—or with giving other places throughout the country the opportunity to welcome more immigrants, who can be a net boon to communities who receive them. But the way these trips have allegedly been arranged, lying to the migrants and keeping the communities receiving them in the dark, needlessly makes things more difficult for everyone involved. And the underlying premise of treating migrants as part punishment, part political pawns is grotesque.

As Bonta said: “State-sanctioned kidnapping is not a public policy choice, it is immoral and disgusting.”

QUICK HITS

• J.D. Tuccille takes a look at how the European Union’s Digital Services Act threatens Americans‘ free speech.

• Someone in Utah is challenging the Davis School District’s inclusion of the Bible and the Book of Mormon in school libraries.

• “Tupperware once revolutionized women’s roles—in the kitchen and the country’s economy—and sealed its place in American lore as a synonym for kitchen storage,” says NPR. “It popularized party-style sales. Its plasticware is in museums. But now, the company faces financial peril.”

• The Washington Post profiles Carly Ann Goddard, a 22-year-old influencer in Montana who is one of four content creators challenging the state’s ban on TikTok.

• YouTube will stop removing content that promotes false claims about U.S. elections.

Since starting at Reason in 2014, Brown has won multiple awards for her writing on the U.S. government’s war on sex. Brown’s writing has also appeared in The New York Times, Los Angeles Times, The Daily Beast, Buzzfeed, Playboy, Fox News, Politico, The Week, and numerous other publications. You can follow her on Twitter @ENBrown.

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