Ark. Code Ann. » Title 5 Chapter 68
Arkansas Code Annotated

Ark. Code Ann. § 5-68-501 (2020)

Definitions

✓ Arkansas Code release r76: Acts through about 2020 (2021-2025 sessions missing)
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As used in this subchapter:

  1. “CD-ROM” means a compact disk that:
    1. Has the capacity to store graphic, audio, video, and written material; and
    2. May be used by a computer or other device to play or display material harmful to minors;
  2. “Harmful to minors” means 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:
    1. The average person eighteen (18) years of age or older applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest in sex to minors;
    2. 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
    3. The material or performance lacks serious literary, scientific, medical, artistic, or political value for minors;
  3. “Knowingly” means having general knowledge of, or reason to know, or a belief or ground for belief that warrants further inspection or inquiry of both:
    1. The character and content of any material described in this section that is reasonably susceptible to examination by the defendant; and
      1. The age of the minor.
      2. However, an honest mistake constitutes an excuse from liability under this section if the defendant made a reasonable bona fide attempt to ascertain the age of the minor;
  4. “Magnetic disk memory” means a memory system that stores and retrieves binary data on a record-like metal or plastic disk coated with a magnetic material, including, but not limited to, a hard disk drive and a floppy diskette;
  5. “Magnetic tape memory” means a memory system that stores and retrieves binary data on magnetic recording tape;
    1. “Material” means any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture, film, record, recording tape, CD-ROM disk, magnetic disk memory, magnetic tape memory, video tape, or other media.
    2. However, “material” does not include a matter displayed, transmitted, retrieved, or stored on the Internet or other network for the electronic dissemination of information;
  7. “Minor” means any person under eighteen (18) years of age;
  8. “Nudity” means a:
    1. Showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering;
    2. Showing of the female breast with less than a fully opaque covering of any portion of the female breast below the top of the nipple; or
    3. Depiction of covered male genitals in a discernibly turgid state;
    1. “Performance” means any motion picture, film, video tape, played record, phonograph or tape, preview, trailer, play, show, skit, dance, or other exhibition performed or presented to or before an audience of one (1) or more, with or without consideration.
    2. However, “performance” does not include a matter displayed, transmitted, retrieved, or stored on the Internet or other network for electronic dissemination of information;
  10. “Person” means any individual, partnership, association, corporation, or other legal entity of any kind;
  11. “Reasonable bona fide attempt” means an attempt to ascertain the true age of a minor by requiring production of a driver's license, marriage license, birth certificate, or other governmental or educational identification card or paper and not relying solely on an oral allegation or apparent age of the minor;
  12. “Sadomasochistic abuse” means flagellation or torture by or upon a person clad in undergarments, a mask, or bizarre costume, or the condition of being fettered, bound, or otherwise physically restrained on the part of a person so clothed;
  13. “Sexual conduct” means an act of masturbation, homosexuality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or female breast; and
  14. “Sexual excitement” means the condition of the human male or female genitals when in a state of sexual stimulation or arousal.

History. Acts 1969, No. 133, § 1; A.S.A. 1947, § 41-3581; Acts 1999, No. 1263, § 1.

Case Notes

Constitutionality.

Based upon responses from questions certified to the Arkansas Supreme Court pursuant to Ark. Sup. Ct. R. 6-8, a federal district court found that § 5-68-502 effectively stifled the access of adults and older minors to communications and material they were entitled to receive and view under U.S. Const. amends. I and XIV. Shipley, Inc. v. Long, 454 F. Supp. 2d 819 (E.D. Ark. 2004) (decided under former version of § 5-68-502).

Construction.

In response to certified questions from the federal district court, the state Supreme Court determined that all minors had to be protected from material that was deemed to be harmful to minors; specifically, this material had to be obstructed from view and physically segregated for librarians and booksellers to avoid prosecution. Shipley, Inc. v. Long, 359 Ark. 208, 195 S.W.3d 911 (2004).

Cited: State v. Brown, 265 Ark. 41, 577 S.W.2d 581 (1979).

Notes of Decisions
Cited in 5 cases (1 in the last 5 years), 1988–2023 · leading case: Shipley, Inc. v. Long, 195 S.W.3d 911 (Ark. 2004).
Sort: Relevance Newest Treatment
Shipley, Inc. v. Long, 195 S.W.3d 911 (Ark. 2004). · cites it 23× “This case is before us on certification from the United States District Court for the Eastern District of Arkansas, pursuant to Ark. Sup.Ct.”
Thompson v. Oklahoma, 487 U.S. 815 (1988). · cites it 2× “Ark. Code Ann. §§ 5-68-501 , 5-68-502 (1987) Cal.”
Shipley, Inc. v. Long, 148 S.W.3d 746 (Ark. 2004). · cites it 4× “The law in question involves the interpretation of Act 133 of 1969 (codified at Ark. Code Ann. §§ 5-68-501 , et seq. (Repl.”
Shipley, Inc. v. Long, 454 F. Supp. 2d 819 (E.D. Ark. 2004). · cites it 6× “The “Safe Harbor” provision contained in § 5-68-501(1)(B) requires that the material be “segregated in a manner that physically prohibits access to the material by minors.”
Fayetteville Pub. Library v. Crawford Cnty., No. 5:23-cv-05086 (W.D. Ark. July 29, 2023). · cites it 6× “” Ark. Code Ann. § 5-68-501 (7). The term “harmful to minors” incorporates the Supreme Court’s three-part definition of “obscenity.”
Ark. Code Ann. § 5-68-501(1)(A): 1 case
Shipley, Inc. v. Long, 195 S.W.3d 911 (Ark. 2004). “This case is before us on certification from the United States District Court for the Eastern District of Arkansas, pursuant to Ark. Sup.Ct.”
Ark. Code Ann. § 5-68-501(1)(B): 2 cases
Shipley, Inc. v. Long, 148 S.W.3d 746 (Ark. 2004). “The law in question involves the interpretation of Act 133 of 1969 (codified at Ark. Code Ann. §§ 5-68-501 , et seq. (Repl.”
Shipley, Inc. v. Long, 454 F. Supp. 2d 819 (E.D. Ark. 2004). “The “Safe Harbor” provision contained in § 5-68-501(1)(B) requires that the material be “segregated in a manner that physically prohibits access to the material by minors.”
Ark. Code Ann. § 5-68-501(2)(A): 1 case
Shipley, Inc. v. Long, 195 S.W.3d 911 (Ark. 2004). “This case is before us on certification from the United States District Court for the Eastern District of Arkansas, pursuant to Ark. Sup.Ct.”
Ark. Code Ann. § 5-68-501(6): 2 cases
Shipley, Inc. v. Long, 195 S.W.3d 911 (Ark. 2004). “This case is before us on certification from the United States District Court for the Eastern District of Arkansas, pursuant to Ark. Sup.Ct.”
Shipley, Inc. v. Long, 454 F. Supp. 2d 819 (E.D. Ark. 2004). “The “Safe Harbor” provision contained in § 5-68-501(1)(B) requires that the material be “segregated in a manner that physically prohibits access to the material by minors.”
Ark. Code Ann. § 5-68-501(7): 2 cases
Shipley, Inc. v. Long, 195 S.W.3d 911 (Ark. 2004). “This case is before us on certification from the United States District Court for the Eastern District of Arkansas, pursuant to Ark. Sup.Ct.”
Shipley, Inc. v. Long, 454 F. Supp. 2d 819 (E.D. Ark. 2004). “The “Safe Harbor” provision contained in § 5-68-501(1)(B) requires that the material be “segregated in a manner that physically prohibits access to the material by minors.”
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