Ark. Code Ann. § 5-68-502
Selling, loaning, or displaying pornography to minors
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It is unlawful for any person, including without limitation any person having custody, control, or supervision of any commercial establishment, to knowingly:
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- Display material that is harmful to minors in such a way that the material is exposed to the view of a minor as part of the invited general public.
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However, a person is deemed not to have displayed material harmful to minors if:
- The material is kept behind devices commonly known as “blinder racks” so that the lower two-thirds (2/3) of the material is not exposed to view; or
- Material harmful to minors is not contained on the front cover, back cover, or binding of the displayed material;
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- Sell, furnish, present, distribute, allow to view, or otherwise disseminate to a minor with or without consideration any material that is harmful to minors.
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However, the prohibition under subdivision (a)(2)(A) of this section does not apply to any dissemination:
- By a parent, guardian, or relative within the third degree of consanguinity of the minor; or
- With the consent of a parent or guardian of the minor; or
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- Present to a minor or participate in presenting to a minor with or without consideration any performance that is harmful to minors.
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However, the prohibition under subdivision (a)(3)(A) of this section does not apply to any dissemination:
- By a parent, guardian, or relative within the third degree of consanguinity to the minor; or
- With the consent of a parent or guardian of the minor.
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- A violation of subsection (a) of this section is a Class B misdemeanor.
History. Acts 1969, No. 133, § 2; A.S.A. 1947, § 41-3582; Acts 1999, No. 1263, § 2; 2003, No. 858, § 1; 2007, No. 579, § 1; 2015, No. 1263, § 19.
Amendments. The 2003 amendment, in (1)(B), deleted “material is kept behind devices commonly known as ‘blinder racks’ so that the” preceding “lower” and added “and segregated in a manner that physically prohibits access to the materials by minors.”
The 2015 amendment rewrote the section heading; inserted designation (a); in the introductory language of (a), substituted “without limitation” for “but not limited to”; substituted “(a)(2)(A)” for “(2)(A)” in (a)(2)(B); substituted “degree of” for “degree or” in (a)(2)(B)(i); substituted “(a)(3)(A)” for “(3)(A)” in (a)(3)(B); and added (b).
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 this section 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 statute).
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).
The “safe harbor” provision of this section requires only that some physical obstacle stand between minors and the area where prohibited material is displayed so that minors have no access to such material; although booksellers may choose the method best suited to their individual establishments, it remains for the federal court to ultimately determine whether such a requirement violates the First Amendment rights of booksellers, librarians, and their adult customers. Shipley, Inc. v. Long, 359 Ark. 208, 195 S.W.3d 911 (2004).