In Virden v. Crawford County, Arkansas, (WD AR, Sept. 12, 2023), the court denied plaintiffs' request for a preliminary injunction because the proposed injunction was too broad, but left open the possibility of a narrower injunction later on. The court described the dispute:
According to Plaintiffs’ amended complaint, in late 2022 or early 2023 the Crawford County Library System implemented a policy under which its library branches must 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.” Plaintiffs allege this policy was imposed on the Library System by the Crawford County Quorum Court in response to political pressure from constituents who objected, at least partly on religious grounds, to the presence of these books in the children’s section.
Plaintiffs claimed that this policy violates the Establishment Clause as well as their 1st Amendment free speech right. The court said in part:
First, with respect to the Establishment Clause claim, it must be noted that—as Defendants acknowledge—there is little useful precedent to guide this Court’s analysis. The United States Supreme Court’s most recent guidance on such claims amounts to little more than the extremely general and abstract direction that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” Kennedy v. Bremerton Sch. Dist..... In the face of this instruction, the County resorts to arguing that book banning and censorship, for reasons both religious and otherwise, have a centuries-long history in America and the broader Western world....
Neither side’s argument regarding the Establishment Clause claim is satisfactory. Plaintiffs’ argument simply sidesteps the “historical practices and understandings” analysis altogether. But the County’s argument, which is essentially that the Establishment Clause does not prohibit state-sponsored religious viewpoint discrimination because state actors have been violating the Free Speech Clause for centuries, seems out of step with the Kennedy Court’s admonition that the First Amendment’s Establishment, Free-Exercise, and Free-Speech Clauses “have complementary purposes, not warring ones where one Clause is always sure to prevail over the others.”....
The court found that plaintiffs had alleged sufficient facts to avoid dismissal of their claim that their 1st Amendment right to receive information had been infringed. However, it refused to enter a preliminary injunction requiring the library to return to its prior procedures for classifying and processing books, saying in part:
... Plaintiffs’ proposals would essentially freeze in perpetuity the Library’s method for processing all types of books—not only children’s books relating to LGBTQ topics. The Court does not see any reason, on the record before it, why it should curtail the Library’s discretion in processing books on such disparate topics as caring for houseplants, playing chess, or mystery novels. Furthermore, the requested injunctions are so vague and general that they could potentially prevent the Library from altering these processes even for reasons that could be perfectly benign, prudent, and constitutionally inoffensive.
