Fayetteville Public Library, a political subdivision in the City of Fayetteville,… v. Crawford County, Arkansas

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 25-1146
___________________________
Fayetteville Public Library, a political subdivision in the City of Fayetteville, State
of Arkansas; Eureka Springs Carnegie Public Library; Central Arkansas Library
System; Nate Coulter; Olivia Farrell
Plaintiffs - Appellees
Hayden Kirby
Plaintiff
Leta Caplinger; Adam Webb; Arkansas Library Association; Advocates for All
Arkansas Libraries; Pearl’s Books, LLC; Wordsworth Community Bookstore,
LLC, doing business as WordsWorth Books; American Booksellers Association;
Association of American Publishers, Inc.; Authors Guild, Inc.; Comic Book Legal
Defense Fund; Freedom to Read Foundation; Miel Partain, In her own capacity and
as parent and next friend of M. Partain, by next friend M. Partain
Plaintiffs - Appellees
v.
Crawford County, Arkansas; Chris Keith, in his official capacity as the Crawford
County Judge
Defendants
Todd Murray, each in his or her official capacity as a prosecuting attorney for the
State of Arkansas; Sonia Eileen Fonticiella, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Devon Holder, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Matt Durrett,
each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; Jeff Phillips, each in his or her official capacity as a prosecuting attorney

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for the State of Arkansas; Will Jones, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Teresa Howell, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Ben Hale,
each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; Connie Mitchell, each in his or her official capacity as a prosecuting
attorney for the State of Arkansas; Dan Turner, each in his or her official capacity
as a prosecuting attorney for the State of Arkansas; Jana Bradford, each in his or
her official capacity as a prosecuting attorney for the State of Arkansas; Frank
Spain, each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; Tim Blair, each in his or her official capacity as a prosecuting attorney
for the State of Arkansas; Kyle Hunter, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Daniel Shue, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Jeff Rogers,
each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; David Ethredge; Tom Tatum, II, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Drew Smith, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Rebecca Reed
McCoy, each in his or her official capacity as a prosecuting attorney for the State
of Arkansas; Michelle Lawrence, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Debra Buschman, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Tony Rogers,
each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; Nathan Smith, each in his or her official capacity as a prosecuting
attorney for the State of Arkansas; Carol Crews, each in his or her official capacity
as a prosecuting attorney for the State of Arkansas; Kevin Holmes, each in his or
her official capacity as a prosecuting attorney for the State of Arkansas; Chris
Walton, each in his or her official capacity as a prosecuting attorney for the State
of Arkansas; Chuck Graham, each in his or her official capacity as a prosecuting
attorney for the State of Arkansas
Defendants - Appellants
Tim Griffin, In his official capacity as Attorney General of Arkansas
Intervenor Defendant - Appellant
------------------------------

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Foundation for Individual Rights and Expression
Amicus on Behalf of Appellee(s)
___________________________
No. 25-2211
___________________________
Fayetteville Public Library, a political subdivision in the City of Fayetteville, State
of Arkansas; Eureka Springs Carnegie Public Library; Central Arkansas Library
System; Nate Coulter; Olivia Farrell
Plaintiffs - Appellees
Hayden Kirby
Plaintiff
Leta Caplinger; Adam Webb; Arkansas Library Association; Advocates for All
Arkansas Libraries; Pearl’s Books, LLC; Wordsworth Community Bookstore,
LLC, doing business as WordsWorth Books; American Booksellers Association;
Association of American Publishers, Inc.; Authors Guild, Inc.; Comic Book Legal
Defense Fund; Freedom to Read Foundation; Miel Partain, In her own capacity and
as parent and next friend of M. Partain, by next friend M. Partain
Plaintiffs - Appellees
v.
Crawford County, Arkansas; Chris Keith, in his official capacity as the Crawford
County Judge
Defendants
Todd Murray, each in his or her official capacity as a prosecuting attorney for the
State of Arkansas; Sonia Eileen Fonticiella, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Devon Holder, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Matt Durrett,
each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; Jeff Phillips, each in his or her official capacity as a prosecuting attorney

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for the State of Arkansas; Will Jones, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Teresa Howell, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Ben Hale,
each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; Connie Mitchell, each in his or her official capacity as a prosecuting
attorney for the State of Arkansas; Dan Turner, each in his or her official capacity
as a prosecuting attorney for the State of Arkansas; Jana Bradford, each in his or
her official capacity as a prosecuting attorney for the State of Arkansas; Frank
Spain, each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; Tim Blair, each in his or her official capacity as a prosecuting attorney
for the State of Arkansas; Kyle Hunter, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Daniel Shue, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Jeff Rogers,
each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; David Ethredge; Tom Tatum, II, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Drew Smith, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Rebecca Reed
McCoy, each in his or her official capacity as a prosecuting attorney for the State
of Arkansas; Michelle Lawrence, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Debra Buschman, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Tony Rogers,
each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; Nathan Smith, each in his or her official capacity as a prosecuting
attorney for the State of Arkansas; Carol Crews, each in his or her official capacity
as a prosecuting attorney for the State of Arkansas; Kevin Holmes, each in his or
her official capacity as a prosecuting attorney for the State of Arkansas; Chris
Walton, each in his or her official capacity as a prosecuting attorney for the State
of Arkansas; Chuck Graham, each in his or her official capacity as a prosecuting
attorney for the State of Arkansas
Defendants - Appellants
Tim Griffin, In his official capacity as Attorney General of Arkansas
Intervenor Defendant - Appellant
___________________________
No. 25-2427
___________________________

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Fayetteville Public Library, a political subdivision in the City of Fayetteville, State
of Arkansas; Eureka Springs Carnegie Public Library; Central Arkansas Library
System; Nate Coulter; Olivia Farrell
Plaintiffs - Appellees
Hayden Kirby
Plaintiff
Leta Caplinger; Adam Webb; Arkansas Library Association; Advocates for All
Arkansas Libraries; Pearl’s Books, LLC; Wordsworth Community Bookstore,
LLC, doing business as WordsWorth Books; American Booksellers Association;
Association of American Publishers, Inc.; Authors Guild, Inc.; Comic Book Legal
Defense Fund; Freedom to Read Foundation; Miel Partain, In her own capacity and
as parent and next friend of M. Partain, by next friend M. Partain
Plaintiffs - Appellees
v.
Crawford County, Arkansas; Chris Keith, in his official capacity as the Crawford
County Judge
Defendants - Appellants
Todd Murray, each in his or her official capacity as a prosecuting attorney for the
State of Arkansas; Sonia Eileen Fonticiella, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Devon Holder, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Matt Durrett,
each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; Jeff Phillips, each in his or her official capacity as a prosecuting attorney
for the State of Arkansas; Will Jones, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Teresa Howell, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Ben Hale,
each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; Connie Mitchell, each in his or her official capacity as a prosecuting
attorney for the State of Arkansas; Dan Turner, each in his or her official capacity
as a prosecuting attorney for the State of Arkansas; Jana Bradford, each in his or
her official capacity as a prosecuting attorney for the State of Arkansas; Frank

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Spain, each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; Tim Blair, each in his or her official capacity as a prosecuting attorney
for the State of Arkansas; Kyle Hunter, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Daniel Shue, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Jeff Rogers,
each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; David Ethredge; Tom Tatum, II, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Drew Smith, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Rebecca Reed
McCoy, each in his or her official capacity as a prosecuting attorney for the State
of Arkansas; Michelle Lawrence, each in his or her official capacity as a
prosecuting attorney for the State of Arkansas; Debra Buschman, each in his or her
official capacity as a prosecuting attorney for the State of Arkansas; Tony Rogers,
each in his or her official capacity as a prosecuting attorney for the State of
Arkansas; Nathan Smith, each in his or her official capacity as a prosecuting
attorney for the State of Arkansas; Carol Crews, each in his or her official capacity
as a prosecuting attorney for the State of Arkansas; Kevin Holmes, each in his or
her official capacity as a prosecuting attorney for the State of Arkansas; Chris
Walton, each in his or her official capacity as a prosecuting attorney for the State
of Arkansas; Chuck Graham, each in his or her official capacity as a prosecuting
attorney for the State of Arkansas
Defendants
Tim Griffin, In his official capacity as Attorney General of Arkansas
Intervenor Defendant
____________
Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
____________
Submitted: June 11, 2026
Filed: July 30, 2026
____________
Before COLLOTON, Chief Judge, ERICKSON and GRASZ, Circuit Judges.
____________

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GRASZ, Circuit Judge.
The Arkansas General Assembly adopted Act 372 in 2023. As summarized
by Arkansas’s Attorney General, the law aims “[t]o protect children from obscenity
and to increase accountability for public-library curation decisions.” To this end,
the law’s first section makes it illegal to “furnish[] a harmful item to a minor . . . .”
Ark. Code Ann. § 5-27-212(b). And its fifth section requires public libraries to adopt
written policies addressing the “selection, relocation, and retention of physical
materials” in their collections, as well as the procedures they will follow when
people challenge items in their collections as inappropriate. Id. § 13-2-106(a)–(c).
A group of plaintiffs filed overbreadth and void-for-vagueness challenges against
§§ 1 and 5 before they took effect. The district court entered summary judgment in
Plaintiffs’ favor, permanently enjoined enforcement of both sections, and awarded
attorney fees and costs. On Defendants’ appeal, we reverse the district court’s
judgment. As a result, we vacate its permanent injunction and award of attorney
fees and costs.
I. Background
To “protect children from obscenity,” Act 372’s first section criminalizes
“furnishing a harmful item to a minor . . . .” § 5-27-212(b). A person commits this
offense “if, knowing the character of the item involved, the person knowingly
. . . [f]urnishes, presents, provides, makes available, gives, lends, shows, advertises,
or distributes to a minor an item that is harmful to minors.” Id. § 5-27-212(b)(1).
Section 1 defines “[h]armful to minors” as
that quality of any description, exhibition, presentation, or
representation, in whatever form, of nudity, sexual conduct, sexual
excitement, or sadomasochistic abuse, when the material or
performance, taken as a whole, has the following characteristics:
(A) The average person eighteen (18) years of age or older
applying contemporary community standards would find that the

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material or performance has a predominant tendency to appeal to
a prurient interest in sex to minors;
(B) The average person eighteen (18) years of age or older
applying contemporary community standards would find that the
material or performance depicts or describes nudity, sexual
conduct, sexual excitement, or sadomasochistic abuse in a
manner that is patently offensive to prevailing standards in the
adult community with respect to what is suitable for minors; and
(C) The material or performance lacks serious literary,
scientific, medical, artistic, or political value for minors.
Id. § 5-68-501(2), cited in id. § 5-27-212(a)(1). Arkansas can punish violations of
§ 1 with up to a year of imprisonment. See id. §§ 5-27-212(d), -4-401(b)(1).
To “increase accountability for public-library curation decisions,” § 5 requires
county and municipal libraries to adopt two written, publicly available policies. See
id. § 13-2-106(a)–(b). The first policy must “establish guidelines for the selection,
relocation, and retention of physical materials that are available to the public.” Id.
§ 13-2-106(a). And the second policy must allow people who are “affected by the
material” to “challenge the appropriateness of material available in the county or
municipal library” and must lay out certain procedures the library will follow, “at a
minimum,” when someone lodges such a challenge. Id. § 13-2-106(b)–(c).
Before Act 372 became effective, a group of public libraries, bookstores, and
their patrons sued Arkansas’s 28 prosecuting attorneys, Crawford County, and
Crawford County Judge Chris Keith. Plaintiffs allege that §§ 1 and 5 violate the
First Amendment because they are overbroad and they violate the Fourteenth
Amendment’s Due Process Clause because they are void for vagueness. The district
court agreed, so it granted Plaintiffs’ motion for summary judgment, permanently
enjoined Defendants from enforcing §§ 1 and 5, and awarded Plaintiffs nearly
$450,000 in attorney fees and costs. Defendants appeal.

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II. Analysis
Defendants’ appeal raises six issues: (1) whether Plaintiffs lack standing to
challenge §§ 1 and 5; (2) whether Plaintiffs’ challenges are ripe; (3) whether §§ 1
and 5 are overbroad, in violation of the First Amendment; (4) whether §§ 1 and 5
are void for vagueness, in violation of the Fourteenth Amendment’s Due Process
Clause; (5) whether the district court exceeded its authority when it entered the
permanent injunction; and (6) whether the district court erred when it awarded
Plaintiffs attorney fees and costs. We discuss each issue in turn.
A. Standing
Defendants argue Plaintiffs lack standing to bring their overbreadth and
vagueness challenges against §§ 1 and 5. “We review whether a party has standing
de novo.” Dakotans for Health v. Noem, 52 F.4th 381, 385 (8th Cir. 2022).
“Our authority under the Constitution is limited to resolving ‘Cases’ or
‘Controversies.’” Dep’t of Educ. v. Brown, 600 U.S. 551, 561 (2023) (quoting U.S.
Const. art. III, § 2). “For a lawsuit to constitute a case within the meaning of Article
III, the plaintiff must have standing to sue,” meaning “they possess ‘a “personal
stake” in the dispute’ and are not mere bystanders.” Diamond Alt. Energy, LLC v.
EPA, 606 U.S. 100, 110 (2025) (quoting FDA v. All. for Hippocratic Med., 602 U.S.
367, 379 (2024)). When plaintiffs file a consolidated complaint, alleging the same
claims against the same defendants, only one plaintiff needs standing for the case to
proceed. Biden v. Nebraska, 600 U.S. 477, 489 (2023); accord PETA v. Reynolds,
173 F.4th 959, 965 (8th Cir. 2026). To show they have standing, a plaintiff needs to
demonstrate they have suffered “(1) an injury in fact, (2) a causal relationship
between the injury and the challenged conduct, and (3) that a favorable decision will
likely redress the injury.” Animal Legal Def. Fund v. Vaught, 8 F.4th 714, 718 (8th
Cir. 2021).

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“The first requirement, injury in fact,” normally “requires the plaintiff to
demonstrate an injury that is ‘concrete,’ ‘particularized,’ and ‘actual or imminent,
not speculative.’” Diamond Alt. Energy, 606 U.S. at 111 (quoting All. for
Hippocratic Med., 602 U.S. at 381). But this requirement is relaxed when plaintiffs
bring pre-enforcement challenges under the First Amendment. See, e.g., PETA, 173
F.4th at 964. Plaintiffs can demonstrate an injury in fact, in this context, by showing
“an intention to engage in a course of conduct arguably affected with a constitutional
interest, but proscribed by a statute, and there exists a credible threat of prosecution
thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
“The second and third requirements, causation and redressability, are usually
‘flip sides of the same coin.’” Diamond Alt. Energy, 606 U.S. at 111 (quoting All.
for Hippocratic Med., 602 U.S. at 380). “Causation requires the plaintiff to show
‘that the injury was likely caused by the defendant,’ and redressability requires the
plaintiff to demonstrate ‘that the injury would likely be redressed by judicial relief.’”
Id. (quoting TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021)). “If a
defendant’s action causes an injury, enjoining the action . . . will typically redress
that injury.” Id. (quoting All. for Hippocratic Med., 602 U.S. at 381).
i. Section 1
Defendants all but concede that “a few [p]laintiffs have standing to challenge”
§ 1. We agree that the librarian and bookstore plaintiffs have standing to challenge
this section.
In Virginia v. American Booksellers Ass’n, the Supreme Court held that a
group of booksellers had standing to seek pre-enforcement review of a Virginia law
making it a crime “to knowingly display for commercial purpose” material that “is
harmful to juveniles.” 484 U.S. 383, 386, 392 (1988) (quoting Va. Code § 18.2-
391(a)); see also Susan B. Anthony List, 573 U.S. at 160. In reaching this conclusion,
the Court explained the injury-in-fact requirement was met because the Virginia law

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was “aimed directly at plaintiffs, who . . . w[ould] have to take significant and costly
compliance measures or risk criminal prosecution.” Am. Booksellers, 484 U.S. at
392. The Court further explained that the plaintiffs had also “alleged an actual and
well-founded fear that the law w[ould] be enforced against them,” id. at 393, which
was sufficient to satisfy the causation and redressability requirements because the
defendants were responsible for enforcing the statute and could be enjoined from
doing so. See, e.g., PETA, 173 F.4th at 965. The librarian and bookstore plaintiffs
here have standing to challenge § 1 for much the same reasons.
First, they have suffered an injury in fact because § 1 is aimed at them, and
they must choose between removing books from their shelves, taking compliance
measures they attest would be costly, or risking criminal prosecution. See Am.
Booksellers, 484 U.S. at 392. The librarian and bookstore plaintiffs filed several
affidavits, attesting they have dozens of books on their shelves that are likely covered
by the statute and claiming they may have to spend large sums of money reviewing
their collections and restructuring their facilities to comply with § 1. See Susan B.
Anthony List, 573 U.S. at 160 (explaining the American Booksellers plaintiffs
showed they suffered an injury in fact by “introduc[ing] 16 books they believed were
covered by the statute and testif[ying] that costly compliance measures would be
necessary to avoid prosecution for displaying such books”). Without these
measures, the librarian and bookstore plaintiffs attest they fear being prosecuted
under § 1 and imprisoned for up to a year, and these fears are “well-founded.” Am.
Booksellers, 484 U.S. at 393. Arkansas “has not suggested that the . . . law will not
be enforced, and we see no reason to assume otherwise.” Id. Second, the librarian
and bookstore plaintiffs’ injuries are “causally attributable” to the prosecutor
defendants, “since they were tasked with enforcing [§ 1].” PETA, 173 F.4th at 965.
And third, we can redress their injury “by enjoining” the prosecutor defendants
“from enforcing the statute.” Id.
The librarian and bookstore plaintiffs therefore have standing to challenge § 1.
As a result, “we need not consider whether the other . . . plaintiffs have standing” to
challenge this section. Horne v. Flores, 557 U.S. 433, 446–47 (2009) (quoting

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Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 n.9
(1977)).
ii. Section 5
Plaintiffs argue three library patron plaintiffs have standing to challenge § 5
because they “will likely be injured” when Crawford County and County Judge
Keith implement and enforce the law. We disagree.
As detailed above, § 5 requires public libraries to adopt two written policies.
The first policy must “establish guidelines for the selection, relocation, and retention
of physical materials” in the library’s collection. § 13-2-106(a). And the second
policy must allow patrons to “challenge the appropriateness of material available in
the . . . library,” and lay out the procedure the library will follow when “addressing
challenged material . . . .” Id. § 13-2-106(b)–(c). Simply requiring libraries to adopt
these policies — which is all § 5 mandates — does not injure Plaintiffs. See In re
Navy Chaplaincy, 697 F.3d 1171, 1176 (D.C. Cir. 2012) (noting standing is “lacking
where plaintiffs claimed future injury based on speculation about alleged
discriminatory practices unconnected to concrete policies”); Commw. Edison Co. v.
Train, 649 F.2d 481, 484 (7th Cir. 1980) (“[T]he regulation . . . requires the states to
adopt and implement a policy which may or may not result in a coercive order . . . in
the future. It is impossible to determine at this point with any degree of certainty
whether the utilities will be injured by future action by the states.” (footnote
omitted)).
Plaintiffs contend they will be injured when libraries “segregat[e] books into
adults-only spaces” to comply with § 5. But nothing in § 5’s text requires libraries
to do this. Rather, Plaintiffs are speculating libraries might decide to segregate
certain books as part of their curation policies, which they have not yet adopted, or
in response to challenges, which have not yet been filed. The Supreme Court has
warned us not to “endorse standing theories that require guesswork as to how
independent decisionmakers will exercise their judgment.” Clapper v. Amnesty Int’l

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USA, 568 U.S. 398, 413 (2013). This is plainly the case here. We cannot know at
this stage what curation decisions libraries will make, what challenges will be filed,
or how libraries will resolve them. See Whitmore v. Arkansas, 495 U.S. 149, 159–
60 (1990) (“It is just not possible for a litigant to prove in advance that the judicial
system will lead to any particular result in his case.”). Plaintiffs’ “[a]llegations of
possible future injury” are consequently “not sufficient” to satisfy the injury-in-fact
requirement. Clapper, 568 U.S. at 409 (alteration in original) (quoting Whitmore,
495 U.S. at 158).
Our recent decision in L.H. v. Independence School District, 111 F.4th 886
(8th Cir. 2024), is instructive on this point. There, “[f]our parents of students
attending schools within the Independence School District . . . filed suit on behalf of
their minor children to challenge the District’s policy that removes material in school
libraries upon receipt of a challenge to that material, pending a formal review
process.” Id. at 888. The parents argued their children “[we]re injured by the
District’s automatic-removal policy because it ‘imminently threaten[ed]’ their First
Amendment right to access library materials . . . .” Id. at 892. We rejected this
argument because, “for the automatic-removal policy to affect the children’s
conduct[,] . . . ‘a hypothetical, future challenge, in which a book is automatically
removed pending review’ must occur.” Id. at 894. And the parents did not show
“any challenge [wa]s currently pending,” “that any such challenge ha[d] been
threatened by a potential challenger,” or “that any book [wa]s currently temporarily
removed as a result of the enforcement of the policy.” Id. The same is true here. In
fact, because the district court enjoined § 5 before it took effect, the libraries have
not adopted the policies it requires, much less segregated or removed any books in
response to challenges.
Plaintiffs try to get around L.H. by pointing to a previous policy the Crawford
County Library System adopted requiring “its library branches [to] remove from
their children’s sections all books containing LGBTQ themes, affix a prominent
color label to those books, and place them in a newly-created section called the
‘social section.’” Virden v. Crawford County, No. 2:23-CV-2071, 2024 WL

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4360495, at *1 (W.D. Ark. Sep. 30, 2024). In their view, even though the prior
policy was permanently enjoined nearly two years ago, see id. at *5, we can infer
Crawford County “would likely restrict minors’ access to unpopular opinions again
if permitted by [§] 5,” based on the prior policy. While the past may be relevant
“insofar as it is a launching pad for a showing of imminent future injury,” Murthy v.
Missouri, 603 U.S. 43, 59 (2024), there is nothing in the record, aside from Plaintiffs’
ipse dixit, indicating Crawford County or County Judge Keith will use § 5 to
resurrect the prior policy. See Tara Enters., Inc. v. Humble, 622 F.2d 400, 401–02
(8th Cir. 1980) (“To obtain injunctive or declaratory relief against these officials, it
is well established that there must be some indication that they intend to continue
the unconstitutional practices alleged in the complaint.”).
For these reasons, Plaintiffs have not satisfied standing’s injury-in-fact
requirement with respect to § 5.1
B. Ripeness
Defendants argued Plaintiffs’ challenges to § 1 were not ripe when they
moved for summary judgment. Except for one sentence in their “Summary of the
Argument,” however, they do not raise this on appeal. Nonetheless, ripeness “can
never be waived or forfeited,” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012), because
it goes to subject matter jurisdiction. Dakota, Minn. & E.R.R. Corp. v. South Dakota,
362 F.3d 512, 520 (8th Cir. 2004). We therefore review this issue de novo. See
Missouri v. Yellen, 39 F.4th 1063, 1067 (8th Cir. 2022).
Ripeness, like standing, stems from Article III’s requirement that federal
courts can only resolve cases or controversies. See PETA, 173 F.4th at 965 (“The
case-or-controversy requirement demands that a plaintiff show his claims are ripe.”).
Whether a claim is ripe has a “twofold aspect, requiring us to evaluate both the
1 Although our standing analysis “focuses on [P]laintiffs’ First Amendment
claims, it applies with equal force to [their] Fourteenth Amendment vagueness
claim[s].” Woodlands Pride, Inc. v. Paxton, 168 F.4th 293, 301 n.5 (5th Cir. 2026).

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fitness of the issues for judicial decision and the hardship to the parties of
withholding court consideration.” Abbott Lab’ys v. Gardner, 387 U.S. 136, 148–49
(1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977).
Ripeness “is designed ‘to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements . . . .’” Ohio
Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732–33 (1998) (quoting Abbott Lab’ys,
387 U.S. at 148).
The ripeness requirement is satisfied “when a party brings a pre-enforcement
challenge to a statute that both provides for criminal penalties and abridges First
Amendment rights,” so long as the plaintiff alleges “‘a credible threat of present or
future prosecution,’” since this threat “‘itself works an injury . . . .’” PETA, 173
F.4th at 965 (quoting Minn. Citizens Concerned for Life v. FEC, 113 F.3d 129, 131
(8th Cir. 1997)); accord Ohio C.R. Comm’n v. Dayton Christian Schs., Inc., 477 U.S.
619, 625 n.1 (1986) (“[A] reasonable threat of prosecution for conduct allegedly
protected by the Constitution gives rise to a sufficiently ripe controversy.”). As we
explained above, the librarian and bookstore plaintiffs have shown a well-founded
fear of prosecution under § 1, which allegedly abridges their First Amendment rights
and carries up to a year of imprisonment. So Plaintiffs’ challenges to § 1 are ripe.
C. Overbreadth
Defendants argue the district court erred when it granted Plaintiffs summary
judgment on their overbreadth challenge to § 1. Reviewing this issue de novo,
Farver v. McCarthy, 931 F.3d 808, 811 (8th Cir. 2019), we agree.
An overbreadth challenge is a special “type of facial challenge traditionally
restricted to the First Amendment context.” United States v. Richardson, 175 F.4th
1012, 1013 (8th Cir. 2026). To win an ordinary facial challenge, a plaintiff “must
establish that no set of circumstances exists under which [a statute] would be valid.”
United States v. Evans, 175 F.4th 950, 954 (8th Cir. 2026) (quoting United States v.
Salerno, 481 U.S. 739, 745 (1987)). But the standard for overbreadth challenges is

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more lenient. See Virginia v. Hicks, 539 U.S. 113, 118 (2003). A plaintiff’s
“showing that a law punishes a substantial amount of protected free speech, judged
in relation to the statute’s plainly legitimate sweep, suffices to invalidate all
enforcement of that law . . . .” Id. at 118–19 (cleaned up).
This standard aims to balance “competing social costs.” United States v.
Williams, 553 U.S. 285, 292 (2008). On “one hand, the threat of enforcement of an
overbroad law deters people from engaging in constitutionally protected speech,
inhibiting the free exchange of ideas.” Id. But “[o]n the other hand, invalidating a
law that in some of its applications is perfectly constitutional — particularly a law
directed at conduct so antisocial that it has been made criminal — has obvious
harmful effects.” Id. To strike the right balance, the Supreme Court has “vigorously
enforced the requirement that a statute’s overbreadth be substantial, not only in an
absolute sense, but also relative to [its] plainly legitimate sweep.” Id. And it has
repeatedly warned that “[i]nvalidation for overbreadth is ‘strong medicine’ that is
not to be ‘casually employed.’” Id. at 293 (quoting L.A. Police Dep’t v. United
Reporting Publ’g Corp., 528 U.S. 32, 39 (1999)); see also United States v. Hansen,
599 U.S. 762, 770 (2023) (“To justify facial invalidation, a law’s unconstitutional
applications must be realistic, not fanciful, and their number must be substantially
disproportionate to the statute’s lawful sweep. In the absence of a lopsided ratio,
courts must handle unconstitutional applications as they usually do — case-by-
case.” (citations omitted)).
The district court’s overbreadth analysis is patently deficient, as it never
attempted to determine § 1’s “full set of applications, evaluate which are
constitutional and which are not, and compare the one to the other.” Moody v.
NetChoice, LLC, 603 U.S. 707, 718 (2024); accord GLBT Youth in Iowa Schs. Task
Force v. Reynolds, 114 F.4th 660, 669–70 (8th Cir. 2024). Instead, it bypassed the
required inquiry entirely, electing to give three different reasons why, in its view,
§ 1 is overbroad.

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First, the district court construed American Booksellers to leave “no doubt that
[§] 1 is overbroad . . . .” In that case, the Supreme Court certified questions to the
Virginia Supreme Court seeking its “authoritative construction” of a similar Virginia
statute because “the nature and substance of plaintiffs’ [overbreadth] challenge
[could be] drastically altered,” depending on how the statute was read. Am.
Booksellers, 484 U.S. at 386, 395, 398. In explaining its decision, the Court
forecasted that a “broader reading of the statute would raise correspondingly greater
First Amendment questions.” Id. at 395. But it did not resolve whether any
particular reading would render the statute overbroad. To the contrary, the Court
expressly concluded, “[W]e should not attempt to decide the constitutional issues
presented without first having the Virginia Supreme Court’s interpretation of . . . the
statute.” Id. at 393.
To be sure, the Arkansas Supreme Court has interpreted § 1’s definition of
“‘harmful to minors’” broadly, holding it cannot be read to cover only materials that
are harmful to every minor, since this construction would “not protect all minors”
from “material that may actually be ‘harmful’ to them . . . .” Shipley, Inc. v. Long,
195 S.W.3d 911, 915, 917 (Ark. 2004) (quoting § 5-68-501(2)). And § 1 no doubt
raises “greater First Amendment questions” because of this broad interpretation.
Am. Booksellers, 484 U.S. at 395; accord United States v. Yung, 37 F.4th 70, 77 (3d
Cir. 2022) (“The more speech a law punishes, the likelier it is to be overbroad.”).
Not every broad statute, however, is unconstitutionally overbroad. See United States
v. Arthur, 582 F.3d 713, 720 (7th Cir. 2009) (“[T]he statute is not overbroad; it
simply has a broad scope.”). So courts must use the framework set forth by the
Supreme Court in NetChoice to distinguish statutes that are merely broad from those
that are overbroad. See GLBT Youth, 114 F.4th at 669–70.
Second, the district court speculated that some libraries and bookstores may
try to comply with § 1 by “creating strict adults-only areas — into which would go
potentially hundreds of books, from disposable paperback romance novels to
classics of literature like Romeo and Juliet, Ulysses, Catcher in the Rye, The
Handmaid’s Tale, or The Kite Runner.” But courts cannot conjure up their own

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hypotheticals en route to striking down laws as overbroad. See Snider v. City of
Cape Girardeau, 752 F.3d 1149, 1157 (8th Cir. 2014) (“[T]he fact one can conceive
of an impermissible application of a statute is not sufficient to render it susceptible
to an overbreadth challenge.”). Rather, they must “perform the necessary inquiry
set forth in NetChoice,” GLBT Youth, 114 F.4th at 670, which turns on the plaintiff’s
actual evidentiary record. See N.Y. State Club Ass’n v. City of New York, 487 U.S.
1, 14 (1988) (holding plaintiffs must “demonstrate from the text of [the law] and
from actual fact that a substantial number of instances exist in which the [l]aw cannot
be applied constitutionally” to prevail on overbreadth challenges).
And third, the district court stated in the conclusion to its order that “there is
no set of circumstances under which [§] 1 . . . would be valid.” If § 1 had no
constitutional applications, it would of course be overbroad. See Hansen, 599 U.S.
at 770. But because the district court did not determine § 1’s “full set of
applications,” NetChoice, 603 U.S. at 718, it was in no position to say § 1 can never
be applied without violating the Constitution. To the contrary, the Arkansas
Supreme Court has recognized that books containing “graphic depictions of sexual
conduct” and “nudity” are widely available. Shipley, 195 S.W.3d at 917 n.3. The
First Amendment does not leave Arkansas powerless to keep some of these out of
children’s hands. See Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 474 (2025)
(“Two basic principles govern legislation aimed at shielding children from sexually
explicit content. A state may not prohibit adults from accessing content that is
obscene only to minors. But[] it may enact laws to prevent minors from accessing
such content.” (cleaned up)). Section 1 therefore has a plainly legitimate sweep.
Since none of the reasons the district court gave for why § 1 is overbroad are
a substitute for the analysis NetChoice requires, we must decide how to proceed.
“Ordinarily, when a district court has used an improper legal standard in making a
determination, we . . . remand . . . to permit a decision under the appropriate
standard.” Liddell ex rel. Liddell v. Bd. of Educ., 967 F.2d 1241, 1244 (8th Cir.
1992). “In this case, however, we think it clear that if the appropriate standard is

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applied,” Plaintiffs’ overbreadth challenge will fail for two reasons. Id. So we
resolve the issue now.
First, we have held “[i]t is inappropriate to entertain a facial overbreadth
challenge when the plaintiff fails to adduce any evidence that third parties will be
affected in any manner differently from herself.” Josephine Havlak Photographer,
Inc. v. Village of Twin Oaks, 864 F.3d 905, 912 (8th Cir. 2017); accord Pleasureland
Museum, Inc. v. Beutter, 288 F.3d 988, 996 (7th Cir. 2002) (“For a facial overbreadth
challenge to be successful, plaintiffs must establish ‘a realistic danger that the statute
itself will significantly compromise recognized First Amendment protections of
parties not before the Court.’” (quoting Members of the City Council v. Taxpayers
for Vincent, 466 U.S. 789, 801 (1984))). This requirement “stems from the
underlying justification for the overbreadth exception itself — the interest in
preventing an invalid statute from inhibiting the speech of third parties . . . .”
Taxpayers for Vincent, 466 U.S. at 800. Plaintiffs did not “adduce any evidence” in
this case “that third parties will be affected in any manner differently from
[themselves].” Josephine Havlak, 864 F.3d at 912. Their overbreadth challenge
fails as a result.
Second, even disregarding the third-party issue and assuming some
applications of § 1 violate the First Amendment, Plaintiffs’ overbreadth challenge
fails because we cannot determine § 1’s “full set of applications” from the
evidentiary record they put forward. NetChoice, 603 U.S. at 718. Consequently, we
cannot “evaluate which [applications] are constitutional and which are not, and
compare the one to the other.” Id.; see also Sisney v. Kaemingk, 15 F.4th 1181, 1204
(8th Cir. 2021) (Stras, J., concurring in part and dissenting in part) (“[E]ven if he
proved that the prison’s policy prevents access to some materials that the First
Amendment protects, the record does not establish how prevalent those materials
are, much less how they compare to the quantity of materials that the prison can
constitutionally withhold.”). When “[n]o record [i]s made in this respect,” courts
“cannot conclude that the [l]aw is substantially overbroad and must assume that
‘whatever overbreadth may exist should be cured through case-by-case analysis of

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the fact situations to which its sanctions, assertedly, may not be applied.’” N.Y. State
Club Ass’n, 487 U.S. at 14 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615–16
(1973)); accord Ashcroft v. ACLU, 535 U.S. 564, 584 n.16 (2002).
For these reasons, the district court erred when it granted Plaintiffs summary
judgment on their overbreadth challenge to § 1.
D. Vagueness
Defendants contend the district court should not have granted Plaintiffs
summary judgment on their void-for-vagueness challenge to § 1. We review this
issue de novo, Farver, 931 F.3d at 811, and we agree.
“It is a basic principle of due process that an enactment is void for vagueness
if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S.
104, 108 (1972). Statutes must “provide adequate notice of the proscribed conduct”
and avoid “lend[ing] [themselves] to arbitrary enforcement” to survive vagueness
challenges. Nygard v. City of Orono, 39 F.4th 514, 519 (8th Cir. 2022) (quoting
United States v. Barraza, 576 F.3d 798, 806 (8th Cir. 2009)). “The degree of
vagueness that the Constitution tolerates — as well as the relative importance of fair
notice and fair enforcement — depends in part on the nature of the enactment.”
Village of Hoffman Estates v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498
(1982). When “the law interferes with the right of free speech . . . , a more stringent
vagueness test should apply.” Id. at 499. Still, “perfect clarity and precise guidance
have never been required even of regulations that restrict expressive activity.”
Williams, 553 U.S. at 304 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794
(1989)). Rather, even in this context, a statute is only void for vagueness if it “fails
to provide a person of ordinary intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously discriminatory enforcement.”
Holder v. Humanitarian L. Project, 561 U.S. 1, 18 (2010) (quoting Williams, 553
U.S. at 304).

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The district court decided § 1 was void for vagueness because its “use of
‘present,’ ‘make[] available,’ and ‘show’ leaves librarians and booksellers unsure
about whether shelving books they know contain sexual content may subject them
to criminal liability.” We disagree. A person violates § 1 “if, knowing the character
of the item involved,” they “knowingly . . . furnish[], present[], provide[], make[]
available, give[], lend[], show[], advertise[], or distribute[] to a minor an item that is
harmful to minors.” § 5-27-212(b)(1). As the district court pointed out, § 1 does
not define these verbs. But it does not follow that § 1 is void for vagueness, see
United States v. Baxter, 127 F.4th 1087, 1091–92 (8th Cir. 2025) (rejecting a
vagueness challenge based on an undefined term), especially since these words “are
commonly used and understood.” Minn. Chapter of Associated Builders &
Contractors, Inc. v. Blissenbach, 155 F.4th 1015, 1022 (8th Cir. 2025).
To give some examples, it is well understood that: “furnish” means “[t]o
provide or supply with (something necessary, useful, or desirable, either material or
immaterial),” Furnish (v.), Oxford Eng. Dictionary (June 2026), https://doi.org/
10.1093/OED/5667964040; “present” means “[t]o offer or make accessible (a book
or literary work) to readers,” Present (v.), Oxford Eng. Dictionary (June 2026),
https://doi.org/10.1093/OED/1585603392; “provide” means “[t]o supply
(something) for use,” Provide (v.), Oxford Eng. Dictionary (June 2026),
https://doi.org/10.1093/OED/1098236799; “give” means “[t]o allow a person or
thing to have or take,” Give (v.), Oxford Eng. Dictionary (Dec. 2024),
https://doi.org/10.1093/OED/7886245844; and “lend” means “[t]o grant the
temporary possession of (a thing) on condition or in expectation of the return of the
same or its equivalent,” Lend (v.2), Oxford Eng. Dictionary (June 2026),
https://doi.org/10.1093/OED/1777946485. Given these common meanings of § 1’s
terms, Plaintiffs obviously fall within the statute’s ambit when they shelve, check
out, and sell books. See Shipley, 195 S.W.3d at 918.
“It will always be true that the fertile legal ‘imagination can conjure up
hypothetical cases in which the meaning of (disputed) terms will be in nice
question.’” Grayned, 408 U.S. at 110 n.15 (quoting Am. Comms. Ass’n v. Douds,

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339 U.S. 382, 412 (1950)). We are confident, however, that § 1’s dual scienter
requirements — which limit its application to situations when a person knowingly
furnishes an item to a minor knowing of the item’s harmful character — lessen any
vagueness concerns it might have otherwise posed. See McFadden v. United States,
576 U.S. 186, 197 (2015) (“A scienter requirement in a statute alleviates vagueness
concerns, narrows the scope of its prohibition, and limits prosecutorial discretion.”
(cleaned up)). And this notwithstanding, “[a] plaintiff who engages in some conduct
that is clearly proscribed,” as is plainly the case here, “cannot complain of the
vagueness of the law as applied to the conduct of others.” Village of Hoffman
Estates, 455 U.S. at 495.
The district court consequently erred when it granted Plaintiffs summary
judgment on their void-for-vagueness challenge to § 1.
III. Conclusion
Plaintiffs lack standing to challenge § 5, and their challenges to § 1 fail on
their merits. We therefore reverse the district court’s judgment and, as a result,
vacate its permanent injunction and award of attorney fees and costs.2
COLLOTON, Chief Judge, concurring in the judgment.
In my view, the plaintiffs lack standing to challenge § 5 of Act 372, and § 1
of the Act is not unconstitutionally vague. I concur in those conclusions
substantially for the reasons given by the court.
2 Defendants also argue the district court exceeded its authority when it entered
the permanent injunction and erred for several reasons when it awarded Plaintiffs
almost $450,000 in attorney fees and costs. We do not address these arguments,
however, because Plaintiffs are not entitled to any injunctive relief, attorney fees, or
costs, since their challenges all fail. See, e.g., Ark. United v. Thurston, 146 F.4th
673, 679 (8th Cir. 2025).

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The court’s discussion of the overbreadth challenge to § 1 under the First
Amendment is harder to follow. The court says that there is no evidence that third
parties will be affected differently than the libraries and booksellers who brought
this action. But the libraries presented evidence that the Act would require them to
segregate dozens of books in a way that would affect the manner in which third-
party patrons may access the books for review and checkout. The plaintiffs
presented lists of books that must be segregated under the statute because they would
be “harmful” to the youngest minors while not “harmful” to older minors or obscene
to adults.
The court then says that there is “no record” concerning the “full set of
applications” of Act 372 to which the court could compare the restrictions on access.
The relevant comparator, however, is the statute’s plainly legitimate sweep. There
is no evidence or suggestion that the collections include a significant number of
holdings that would be obscene to adults, older teenagers, and younger minors alike.
The challenged applications of the statute to books that are harmful to younger
minors are thus substantial when judged in relation to the statute’s plainly legitimate
sweep. If adults and older teenagers have a right to unfettered and undifferentiated
access to all books in a library, then a conclusion of overbreadth seems to follow.
See Shipley, Inc. v. Long, 454 F. Supp. 2d 819, 831 (E.D. Ark. 2004). It would be
surprising if the discussion of an overbreadth challenge in Moody v. NetChoice, LLC,
603 U.S. 707 (2024), required libraries in this sort of case to itemize their entire
catalogs for the court.
Even so, for reasons already explained at length by others, I conclude that the
overbreadth claim fails because third-party library patrons have no constitutional
right to receive unfettered access to books of their choice at taxpayer expense. Little
v. Llano County, 138 F.4th 834, 842-48 (5th Cir. 2025) (en banc); see Bd. of Educ.,
Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 888-89 (1982)
(Burger, C.J., dissenting); id. at 915 (Rehnquist, J., dissenting). A public library, or
a State that regulates a public library, may place certain books in a particular section
of the facility, to shield younger minors from harm, without violating the First

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Amendment rights of other patrons who would prefer to have the collection made
available in a different manner. Because the applications of § 1 posited by the
plaintiff libraries do not in my view infringe on a constitutional right of third-party
patrons, the statute is not unconstitutionally overbroad on its face.
______________________________

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