Arkansas spent three years trying to make librarians criminally liable for what’s on the shelves, and this week a federal appeals court basically said, sure, why not. The 8th U.S. Circuit Court of Appeals ruled last week that Act 372, the state’s 2023 obscenity law, can finally take effect, three years after a lower court blocked it on First Amendment grounds, and about three weeks after most people forgot it was still working its way through the courts. 

Here’s what Act 372 actually does. It creates criminal liability for librarians and booksellers who distribute material someone decides is “obscene” or “harmful to minors,” and it hands city and county governments final say over what stays on shelves. Furnishing a “harmful item” to a minor is now a Class A misdemeanor, good for up to a year in prison. Knowingly distributing obscene material as a school or public library employee is a Class D felony, good for up to six years. The three-judge panel (two Trump appointees and a Bush appointee currently serving as chief judge) ruled that library patrons don’t have a standing to challenge the relocation provision because no library has actually segregated books under it yet, and that the criminal-liability section is unconstitutionally vague because it only applies when someone “knowingly” hands over something they know is harmful. Chief Judge Steven Colloton went further in a concurrence, writing that library patrons have no constitutional right to unrestricted access to books “at taxpayer expense.”

Attorney General Tim Griffin called it a win for accountability. The plaintiffs’ lead attorney, John Adams, called libraries and bookstores places where “people can freely explore ideas,” which is presumably no longer guaranteed under a law that puts a felony charge over a librarian’s head for a curation decision. Crawford County already showed everyone the preview of what’s to come. After public outcry, its five library branches separated LGBTQ+ children’s books into their own “social sections,” which is exactly the kind of segregation the appeals court says nobody can prove is coming, using a county that already did it as evidence it isn’t a real risk. Crawford County lost a separate lawsuit over those sections in 2024. The state is currently considering tying funding statewide to keeping “sexually explicit materials” away from anyone under 16, with the rule headed to a state library board hand-picked by Governor Sarah Huckabee Sanders. 

This isn’t just about a library in Arkansas. What’s happening there is the same legal architecture showing up at the federal level through Adam Cadeub, Trump’s pick to run the DOJ’s antitrust division, who’s built his whole professional thesis around the idea that mid-century obscenity statutes never actually went away; prosecutors just stopped using them.  And while he doesn’t have the legal power to do anything about obscenity laws even if he is confirmed, he doesn’t have to. Just adding the potential pressure could be enough, especially when paired with what is happening in Arkansas. These librarians didn’t even have to be prosecuted for them to preemptively move the LGBTQ+ books to their own section to try to protect themselves. 

Imagine what large platforms with millions of dollars on the line will do when threatened. Nobody has to lose a First Amendment case for the chilling effect to work. They just have to make everyone too scared to test it.