Ark. Code Ann. § 5-68-308 (2020)
Defenses
- No employee is liable to prosecution under this subchapter for promoting or possessing with intent to promote any obscene motion picture if the employee is acting within the scope of his or her regular employment.
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As used in subsection (a) of this section, “employee” means any person regularly employed by an owner or operator of a motion picture theater if the person:
- Has no financial interest other than salary or wages in the ownership or operation of the motion picture theater;
- Has no financial interest in or control over the selection of a motion picture shown in the theater; and
- Is working within the motion picture theater where he or she is regularly employed.
- However, “employee” does not include a manager of a motion picture theater.
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As used in subsection (a) of this section, “employee” means any person regularly employed by an owner or operator of a motion picture theater if the person:
- No employee, director, or trustee of a bona fide school, museum, or public library, acting within the scope of his or her regular employment, is liable to prosecution for a violation of this subchapter for disseminating a writing, film, slide, drawing, or other visual reproduction that is claimed to be obscene.
History. Acts 1981 (1st Ex. Sess.), No. 28, § 8; A.S.A. 1947, § 41-3585.7.
Case Notes
Constitutionality.
Subsection (c) of this section does not deny equal protection because bookstore employees do not enjoy the same immunity from prosecution that is granted to the employees of schools, museums, and libraries. 4000 Asher, Inc. v. State, 290 Ark. 8, 716 S.W.2d 190 (1986).
The statutory exemption under subsections (a) and (b) of this section in favor of theater employees is valid and does not violate the equal protection clause even though employees of bookstores are not exempted. 4000 Asher, Inc. v. State, 290 Ark. 8, 716 S.W.2d 190 (1986).
Bona Fide School, Museum, or Public Library.
The settled meaning of “bona fide” as synonymous with its literal translation, “good faith,” is so familiar that the average person could not be misled; therefore, subsection (c) of this section is not overbroad because the exact meaning of bona fide is not given. 4000 Asher, Inc. v. State, 290 Ark. 8, 716 S.W.2d 190 (1986).
Cited: Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990).
Subchapter 4 — Arkansas Law on Obscenity
Publisher's Notes. This subchapter may be partially superseded by §§ 5-68-301 — 5-68-308.
Research References
Ark. L. Rev.
Legislation — No. 261 — Obscene Materials — Circulation Enjoined — Possession Penalized, 15 Ark. L. Rev. 438.
The Arkansas Obscenity Doctrine: Its Establishment and Evolution, 47 Ark. L. Rev. 393.
U. Ark. Little Rock L.J.
Survey of Arkansas Law, Criminal Law, 1 U. Ark. Little Rock L.J. 153.
DeSimone, Survey of Criminal Law, 3 U. Ark. Little Rock L.J. 191.
Case Notes
Constitutionality.
The distribution of books and magazines, even though obscene, is protected by the First and Fourteenth Amendments to the Constitution of the United States from governmental suppression, whether criminal or civil, in personam or in rem. Redrup v. New York, 386 U.S. 767, 87 S. Ct. 1414, 18 L. Ed. 2d 515 (1967).
There is no statutory authority in this subchapter authorizing a prospective injunction against allegedly obscene material not described in the complaint and not being promoted, displayed or possessed by the petitioners when the action is filed. Brown v. Kimbrough, 263 Ark. 913, 568 S.W.2d 226 (1978).