FREEDOM TO READ FOUNDATION NEWS 50 EAST HURON STREET, CHICAGO, ILLINOIS 60611 PHONE (312) 280-4226 www.ftrf.org ● ftrf@ala.org ● www.ftrf.org/ftrfnews.html Judith F. Krug, Executive Director Vol. 29, No. 4–Vol. 30, No.1 John W. Berry, President March 2005 Friends, Colleagues Remember Gordon Conable Gordon M. Conable, President of the Freedom to Read Foundation, died unexpectedly on January 12 in Riverside, CA. Gordon said he became a librarian in order to pursue his passions of free speech and First Amendment defense. At the American Library Association (ALA) Midwinter Meeting in Boston, to which he was scheduled to travel on January 13, Gordon’s friends and colleagues came together to reflect how he influenced them both personally and professionally. At the gathering, common themes emerged: this was a man of fierce intelligence, remarkable leadership abilities, and an unwavering commitment to his profession and ideals; a man whose eyes sparkled in the middle of a fiery debate, so his opponent knew he was enjoying every minute—both because of the discussion of interesting ideas, and because he was able to spend time with a friend; a man who cherished his family, whose warmth and good humor unfailingly extended everyone, whether longtime friend or new acquaintance. Gordon was a member and leader of many state and national organizations through the years. Certainly his commitment to the Freedom to Read Foundation was total. He was an FTRF member for 30 years, president for seven, and also served as treasurer and vice president. In 1996, Gordon received the Foundation’s Roll of Honor award for his “exemplary service to the cause of intellectual freedom.” One of Gordon’s most shining moments came in 1992, when as director of the Monroe County Library System (MI) he withstood an intense controversy over Madonna’s book Sex. His steadfastness during that difficult period made him a hero to many. Inside this issue of FTRF News… Victory in Ark. Harmful to Minors case, p. 2 FTRF files briefs in Kaczynski, Texas textbook, and Friends cases, p. 2–3 Letter to Secy. of Education Spellings, p. 4 Report to ALA Council from Boston, p. 4–7 The Foundation has established a page on our Web site, www.ftrf.org, which contains links to several pages, including ALA’s memorial resolution in Gordon’s honor, tributes from his employer LSSI and the Association of American Publishers, and obituaries from around the country. Gordon’s wife, Irene, a longtime Foundation member herself, has asked that any gifts in Gordon’s name be directed to the Gordon M. Conable Memorial Fund, established by Freedom to Read Foundation to advance the causes to which Gordon was most devoted and for which he worked most passionately. In the first month of its existence, the Conable Fund raised over $6,500. If you would like to donate, please contact the FTRF office at (800) 545-2433 x4226 or e-mail ftrf@ala.org. Alternatively, you can send a check, payable to the Freedom to Read Foundation, to the Gordon M. Conable Memorial Fund, c/o Freedom to Read Foundation, 50 E. Huron St., Chicago, IL 60611. You can also give online at www.ftrf.org. Notification of gifts will be sent to Gordon’s family. At the Midwinter Meeting, John W. Berry, at the time vice president, was elected Foundation president; Candace Morgan was elected vice president. Subsequent to Midwinter, former Trustee Eliza T. Dresang was appointed Trustee through the 2005 Annual Conference, when Conable’s term was to end. Freedom to Read Foundation News Vol. 29, No. 4–Vol. 30, No. 1 Slate for 2005 FTRF Election Announced Page 2 Harriet Selverstone Pratt Institute SLIS New York, NY Tom Teepen Thirteen candidates for the Freedom to Read Foundation Board of Trustees have been slated for the 2005 election by the Nominating Committee, composed of Trustees John W. Berry, Candace Morgan, and Ginnie Cooper, Chair. There are six vacancies on the Board to be filled. Below is the list of candidates slated by the Nominating Committee. Candidates for Freedom to Read Foundation Board, 2005–2007 John W. Berry NILRC: Network of Illinois Learning Resources in Community Colleges River Forest, IL Therese Bigelow Kansas City Public Library Kansas City, MO Jonathan Bloom Weil, Gotshal & Manges LLP New York, NY Susan Brynteson University of Delaware Library Newark, DE Mary Kay Dahlgreen Oregon State Library Salem, OR Journalist Atlanta, GA Mary Elizabeth (Ma’lis) Wendt The New York Public Library Bronx, NY According to Foundation election rules, at least two, and no more than three, candidates must be nominated for each vacancy on the Board. Persons who wish to nominate candidates by petition should submit 25 signatures of current members of the Foundation in support of each candidate. Names of petition candidates, and the required signatures to support each, must be received by the Executive Director of the Foundation no later than March 21, 2005. Ballots will be mailed April 1 to all persons holding paid memberships in the Foundation as of that date. Updates Arkansas “harmful to minors” display law ruled unconstitutional David Gunckel Sierra Vista Public Library Mesa, AZ Anne Heanue Alexandria, VA James G. Neal Columbia University Libraries New York, NY Judith Platt Association of American Publishers Washington, DC Jordan Scepanski Zayed University Dubai, United Arab Emirates On November 16, 2004, U.S. District Judge Thomas Eisele of the federal court in Little Rock, Arkansas, struck down the provisions of the Arkansas Code criminalizing the public display of books that are inappropriate for younger minors but constitutionally protected as to older minors and adults. The Freedom to Read Foundation was a plaintiff in the case, Shipley, Inc. v. Long, along with That Bookstore in Blytheville, the American Booksellers Foundation for Free Expression, the Arkansas Library Association, the Association of American Publishers, the Comic Book Legal Defense Fund, the International Periodical Distributors Association, and the ACLU of Arkansas. On January 11, 2005, Arkansas appealed Judge Eisele’s decision to the 8th Circuit Court of Appeals. Freedom to Read Foundation News Vol. 29, No. 4–Vol. 30, No. 1 New Litigation FTRF files amicus in Unabomber papers case In October, the Foundation partnered with the Society of American Archivists (SAA) to file an amicus curiae brief urging the Ninth Circuit Court of Appeals to reverse a lower court’s decision allowing the government to withhold public access to the original writings of Ted Kaczynski, who pled guilty to the “Unabomber” crimes. The government has refused to release Kaczynski’s original journals, which he desires to donate to the University of Michigan. The brief, filed by the ACLU of Northern California on behalf of FTRF and the SAA, asserted that the documents in question should be preserved and made accessible to scholars, researchers, and the public, without taking a position on the how this objective is achieved. The case, Kaczynski v. United State of America, is currently pending before the Ninth Circuit. Book organizations files brief in Friends case The Freedom to Read Foundation has joined the Association of American Publishers, the American Booksellers Foundation for Free Expression, the Comic Book Legal Defense Fund, and the Publishers Marketing Association in an amicus brief submitted to the California Supreme Court in the case Lyle v. Warner Bros. The case, involving a sexual harassment claim by a former employee of the company that produced the TV show Friends, revolves around the question of whether the often vulgar language in the writers’ room, used among the sitcom’s writers during the creation of the show, created a hostile workplace environment. The initial lawsuit was dismissed but the state court of appeals ruled that the plaintiff could take the matter to a jury, which could hear arguments on whether the writers’ discussion was “creatively necessary” for the show. Page 3 The Foundation’s brief is in support of the defendants, Warner Bros., and argues that in a creative environment that produces First Amendment protected material, the imposition of a test to determine whether the offending language was “necessary” to the creative output has the effect of stifling the speech of the producers and, ultimately, of distributors. The brief, which refers to a more extensive amicus brief submitted by the newspaper industry, focuses on the effect the ruling would have on the book community, specifically the ability of authors to create books with a “free exchange of ideas and information during the creative and editorial process,” threatening to lead to “a diminution of works addressing sensitive topics.” FTRF joins amicus in Texas textbook appeal FTRF filed an amicus brief in conjunction with the American Booksellers Foundation for Free Expression and the National Coalition Against Censorship in support of author Daniel Chiras and a group of students and parents who are fighting the Texas State Board of Education’s decision to reject Chiras’ textbook, Environmental Science: Creating a Sustainable Future. In refusing to adopt Chiras’ text for use in Texas high-school environmental science classes, the board said the textbook was “anti-Christian” and “antifree enterprise.” The plaintiffs appealed the decision of the District Court, which ruled that the school board could reject textbooks if it disagrees with the author’s viewpoint when its viewpoint discrimination is “reasonably related to legitimate pedagogical concerns.” The brief from the Freedom to Read Foundation argues that the First Amendment limits the discretion of school boards with respect to curriculum decisions; the ideological concerns alleged in the case at hand are not legitimate pedagogical concerns; that the procedure the board used was irregular and suggested constitutionally impermissible motives; and that manipulation of curriculum decisions for partisan purposes harms public education and distorts textbook publishing. The case, Chiras v. Miller, is pending before the Fifth Circuit Court of Appeals. Freedom to Read Foundation News Vol. 29, No. 4–Vol. 30, No. 1 Other News FTRF joins letter protesting Secretary of Education’s action on PBS show Below is the text of an open letter signed by the Freedom to Read Foundation and others regarding new Secretary of Education, Margaret Spellings. February 1, 2005 On her second day as Secretary of Education, Margaret Spellings sent a letter to PBS in which she pressured the network into canceling an episode of “Postcards from Buster,” a children’s program intended to teach about diversity. The program, which is about making maple syrup and dairy farming in Vermont, features a household headed by two women. Their relationship is not defined, nor is sexual orientation mentioned. Nevertheless, fearing that some “parents would not want their young children exposed to the lifestyles portrayed in the episode,” Ms. Spellings suggested PBS refund federal money spent on the show and issued a warning to PBS about future support. Secretary Spellings has crossed a critical constitutional line. The Supreme Court has recognized as “a bedrock principle underlying the First Amendment, … that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Nor can the Government “leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints,” or employ the power of the purse “to have a ‘coercive effect’… calculated to drive ‘certain ideas or viewpoints from the marketplace.’” The Education Secretary’s role is not to represent exclusively the interests of only one group of parents and impose one set of beliefs on everybody else, but to foster the best possible educational environment for all, including the children of gay parents. In a free society, parents can decide for themselves and their children what is, and is not, acceptable viewing. Some parents may applaud the segment, others may condemn it; the vast majority probably would not even recognize sexual orientation as an issue. Page 4 It is especially disheartening that PBS so readily agreed to cancel distribution of the program. PBS officials have not only demonstrated how vulnerable their professional decisions are to political pressure, they also have violated their mission to serve “all American children.” In doing so, PBS disserves its audience and undermines viewers’ right to make their own selections from a diverse menu of choices. The children who might have enjoyed the program and learned something from it are the real losers. National Coalition Against Censorship American Booksellers Foundation for Free Expression Feminists for Free Expression First Amendment Project Freedom to Read Foundation PEN American Center Note: PBS officials claimed their decision not to distribute the “Postcards from Buster” episode was unrelated to Secretary Spellings’ letter. A number of local PBS stations aired the episode independently. PBS president and CEO Pat Mitchell announced on February 15 that she would not stay on after her contract expires in June 2006. Report to Council 2005 Midwinter Meeting Boston, Massachusetts The Freedom to Read Foundation reports to the American Library Association Council at each Annual Conference and Midwinter Meeting. The following is an edited version of the report presented at the 2005 Midwinter Meeting in Boston. It is with great sadness that I present this report in the place of our friend and colleague Gordon Conable, who was President of the Freedom to Read Foundation and an ALA Councilor. Gordon died unexpectedly this past Wednesday, January 12, as he was preparing to attend this meeting. Gordon was an unsurpassed champion of intellectual freedom, a wise and generous mentor to many, and a consummate librarian who was a true leader of our profession. He gave many years of dedicated service to FTRF, serving as Treasurer, VicePresident, and seven years as President. Freedom to Read Foundation News Vol. 29, No. 4–Vol. 30, No. 1 Page 5 Above all things, Gordon cherished and adored his wife, Irene, and his son, Edward. He absolutely beamed whenever he spoke of them. Our thoughts and prayers are with them. used to obtain information about persons not connected in any way to terrorism, espionage, or criminal activity; and the procedural rules governing the secret Foreign Intelligence Surveillance Court. The Foundation has established a fund in Gordon’s name, which will be used to advance the causes to which Gordon was most devoted and for which he worked most passionately. Irene has asked that any gifts in Gordon’s name be directed to this fund. We hope for similar success in Muslim Community Association of Ann Arbor v. Ashcroft, the facial challenge to Section 215 of the USA PATRIOT Act, which amends the business records provision of the Foreign Intelligence Surveillance Act to permit the FBI to obtain all types of business records, including library records, without a showing of probable cause. The District Court heard oral arguments on the government’s motion to dismiss the plaintiffs’ complaint in December 2003. We are still awaiting a decision. Building on Gordon’s contributions and those of so many others, the work of the Foundation continues. I am pleased to report on the Foundation’s activities since the 2004 Annual Conference: THE USA PATRIOT ACT AND LIBRARY PRIVACY AND CONFIDENTIALITY The right to read and access information in the library anonymously, without government interference, is a bedrock of intellectual freedom. FTRF remains steadfast in its efforts to defend this right by opposing portions of the USA PATRIOT Act and other laws threatening readers’ rights to privacy and confidentiality. In one key challenge to the USA PATRIOT Act, John Doe and ACLU v. Ashcroft, we saw a judgment in favor of the plaintiff, an Internet Service Provider (ISP), who challenged an FBI-issued National Security Letter (NSL) ordering the ISP to turn over certain user records. On September 29, Judge Marrero of the Southern District of New York ruled that the NSL provision in Section 505 of the act, which permits the FBI to compel the production of information without judicial review, is an unconstitutional infringement on the rights assured by the Bill of Rights. His decision is stayed pending the government’s appeal. FTRF will continue to support the plaintiffs as amici, joining ALA and ABFFE. The Foundation, in partnership with the ACLU, challenged the FBI’s refusal to respond to a Freedom of Information Act request concerning the Bureau’s use of Section 215 of the USA PATRIOT Act in ACLU v. Department of Justice. The District Court in Washington, D.C., ruled in favor of the plaintiffs, and in June, the FBI began to release relevant records and documents. These include a memorandum showing that the FBI invoked its Section 215 authority a few weeks after Attorney General Ashcroft stated publicly that those powers had never been used; internal FBI memos advising agents that the USA PATRIOT Act could be FTRF joined with other civil liberties groups in opposing portions of the Intelligence Reform Act of 2004, which would have expanded law enforcement’s ability to demand records without government review. While some of the provisions FTRF opposed were eliminated from the legislation, troubling provisions for national standards for driver’s licenses were retained and adopted as law. This year, we anticipate a full debate over Section 215 and other provisions of the USA PATRIOT Act as the 2005 sunset date for Section 215 draws closer. The ALA Intellectual Freedom Committee is urging everyone to sign the Reader Privacy Petition encouraging the amendment of Section 215; it is available online at www.readerprivacy.org. PRESERVING THE FREEDOM TO READ: NEW LITIGATION The Freedom to Read Foundation works to safeguard everyone’s freedom to read, view, and listen by participating in lawsuits brought to defend First Amendment rights and the right to freely access information. Since the Foundation last reported to Council, it has joined in the following lawsuits: Kaczynski v. United States of America: (See p. 2) Chiras v. Miller: (See p. 3) FTRF also is monitoring The Center and Hernandez v. Lingle, a lawsuit filed by the ACLU on behalf of a library user in Hawaii who was ejected from the library by a security guard for viewing the website www.gayhawaii.com. The guard relied upon a state Freedom to Read Foundation News Vol. 29, No. 4–Vol. 30, No. 1 Page 6 trespass statute that gives public officials broad powers to ban individuals from using public spaces. FTRF is not currently a party to this lawsuit. September 6, the Texas Supreme Court issued its opinion in favor of the newspaper. FTRF joined in an amicus curiae brief supporting the defendants. CONTINUING LITIGATION The Foundation is also involved in these actions: The Foundation is involved in several other lawsuits addressing First Amendment rights. I am pleased to report the Foundation’s success in the following cases: FCC petition for reconsideration: This petition before the Federal Communications Commission (FCC) asks the agency to reconsider and reverse its decision to impose penalties on NBC for airing an allegedly indecent comment made by the singer Bono during the 2003 Golden Globe Awards. FTRF is one of several organizations that joined together to file the petition after the FCC reversed its original order, which had concluded that Bono’s comment, taken in context, was not indecent or obscene. The petition also urges the FCC to set aside new rules imposing more stringent punishment on broadcasters for indecency. The petition remains pending before the FCC. Ashcroft v. American Civil Liberties Union (formerly ACLU v. Reno): On June 29, the U.S. Supreme Court upheld the injunction barring enforcement of the Children’s Online Protection Act (COPA), a law that proposes restrictions on Internet content deemed “harmful to minors.” The Court concluded that the plaintiffs are likely to prevail on their claim that COPA unconstitutionally burdens free speech, holding that “content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives of a free people.” The Court returned the case to the District Court of Eastern Pennsylvania for a trial to determine whether COPA is the least restrictive means of achieving the government’s goal of protecting children from seeing sexually explicit materials online. Video Software Dealers Association, et al. v. Maleng: On July 15, Judge Robert Lasnik struck down the Washington State law barring the sale or rental to minors of any video game containing depictions of violence directed against “public enforcement officers,” ruling the law was an unconstitutional restriction on speech. FTRF participated as an amicus curiae in the lawsuit with other members of the Media Coalition. Center for Democracy and Technology v. Pappert (formerly Center for Democracy and Technology v. Fisher): The Center for Democracy and Technology succeeded in their legal challenge to a Pennsylvania statute that allowed a Pennsylvania district attorney or the state’s Attorney General to order ISPs—including libraries—to block access to specified Web sites. On September 10, the District Court struck down the law, finding that it had resulted in the blocking of access to more than one million wholly innocent Web sites while having little effect on the approximately 400 child pornography sites targeted by the law. New Times, Inc. v. Isaacks: This defamation lawsuit sought damages from an alternative newspaper in Dallas after it published a satirical article critical of the officials’ actions in jailing a 13 year-old boy. On United States v. Irwin Schiff, et al.: After the federal government successfully sought a temporary restraining order against Irwin Schiff and his publisher, Freedom Books, forbidding them to publish Mr. Schiff’s book, The Federal Mafia: How Government Illegally Imposes and Unlawfully Collects Income Taxes, the Foundation filed an amicus brief opposing the court’s use of prior restraint against the book in order to defend the principle that the First Amendment protects even fringe opinions or beliefs. On August 9, the Ninth Circuit handed down a decision affirming the lower court’s order, that Schiff’s book is deceptive commercial speech and, therefore, not protected by the First Amendment. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme: French courts assessed monetary penalties against Yahoo! and filed criminal charges against its CEO for allowing the sale of Internet auction items and the posting of book excerpts on its Web site related to the Nazi regime. Such activities violate French law but are fully protected speech under the U.S. First Amendment. Two French organizations initiated the legal action against Yahoo! in France and won the initial lawsuit. Subsequently, Yahoo! filed suit in the U.S. to obtain a ruling on the validity of the French court’s order in light of its users’ First Amendment rights. After the District Court judge ruled that the First Amendment barred any enforcement of the French court’s order in the U.S., the two French groups filed an appeal before the Ninth Circuit Court of Appeals. That court reversed the ruling on the Freedom to Read Foundation News Vol. 29, No. 4–Vol. 30, No. 1 grounds that the District Court lacked jurisdiction over the French parties. FTRF has now joined in an amicus curiae brief supporting Yahoo!’s petition for rehearing or rehearing en banc before the entire panel of judges serving on the Ninth Circuit Court of Appeals. As detailed in earlier reports, the FTRF board believes that the free expression and intellectual property rights affected by the lawsuit— both at home and abroad—must be rigorously defended. [Update: On February 10, the Ninth Circuit ordered a rehearing en banc. Oral argument is scheduled for March 24, 2005.] STATE HARMFUL TO MINORS LAWS & INTERNET CONTENT LAWS The Freedom to Read Foundation has participated as a plaintiff in several lawsuits challenging state laws that criminalize the distribution or display of materials deemed “harmful to minors.” I am pleased to report our success in Shipley, Inc. v. Long (formerly Shipley, Inc. v. Huckabee). (See p. 2) On October 5, the District Court granted summary judgment to the government in Athenaco, Ltd. v. Cox, a lawsuit challenging a Michigan statute that makes it unlawful for any person to allow minors to examine sexually explicit material that is “harmful to minors.” Other organizations joining FTRF as plaintiffs include ABFFE, the Association of American Publishers, the Comic Book Legal Defense Fund, and several Michigan booksellers. The court based its decision on statements made by the state’s attorneys, who claimed that the statute should be narrowly interpreted and would have limited effect on free expression. FTRF and its partners have not filed an appeal. The Foundation joined with several other plaintiffs to file ABFFE v. Petro, a lawsuit challenging Ohio’s amendment to its “harmful to juveniles” law that affects both print and Internet content. On September 27, the District Court sustained in part and overruled in part both parties’ motions for summary judgment. The parties are now waiting on an expanded opinion explaining the court’s judgment. FTRF and its co-plaintiffs won in PSINet v. Chapman when the Fourth Circuit Court of Appeals on June 24 upheld the permanent injunction forbidding enforcement of Virginia’s Internet content law. After the Fourth Circuit rejected the government’s petition for rehearing, Page 7 the government decided not to seek an appeal before the U.S. Supreme Court. The decision upholding free expression rights is now final. The State of Arizona has decided to appeal the decision of the District Court awarding summary judgment in favor of FTRF and other plaintiffs in ACLU v. Goddard, which challenges the constitutionality of the state’s “harmful to minors” Internet content law. The case is pending before the Ninth Circuit Court of Appeals. FUNDRAISING AND MEMBERSHIP DEVELOPMENT The Foundation Board members are intensifying our efforts to increase membership, including encouraging more ALA chapters, state school media associations, and students to join the organization. Challenges to the freedom to read are growing, and the Foundation needs your support more than ever. To become a member of the Freedom to Read Foundation, please send a check to: Freedom to Read Foundation 50 E. Huron Street Chicago, IL 60611 You also can use a credit card to join the Foundation. Call (800) 545-2433 ext. 4226 or visit us online at www.ftrf.org to use our secure online donation form. Respectfully submitted, John W. Berry President, Freedom to Read Foundation Freedom to Read Foundation News (ISSN 0046-5038) is issued quarterly to all members of FTRF. Regular membership in the Freedom to Read Foundation begins at $35.00 per year. Contributions to the Foundation should be sent to: Freedom to Read Foundation, 50 E. Huron St., Chicago, IL 60611. You also can join by phone at (800) 545-2433 x4226 or online at www.ftrf.org/joinftrf.html. All contributions are tax-deductible. The Freedom to Read Foundation is the First Amendment legal arm of the American Library Association. Freedom to Read Foundation News Vol. 29, No. 4–Vol. 30, No. 1 Page 8 American Library Association Office for Intellectual Freedom LAWYERS FOR LIBRARIES SOUTHEAST REGIONAL TRAINING INSTITUTE Georgia Tech Hotel & Conference Center May 4, 2005 Atlanta, GA Co-sponsored by SOLINET and in conjunction with the SOLINET Annual Membership Meeting, May 5-6, 2005. Lawyers for Libraries Southeast Regional Training Institute is the sixth in an ongoing series of Continuing Legal Education institutes intended to ensure that libraries throughout the United States will have access to committed, informed attorneys who can provide clear guidance and expertise when dealing with First Amendment issues. The topics to be addressed include: Privacy & confidentiality The USA PATRIOT Act Internet filtering Challenges to library materials Minimizing liability These sessions—conducted by some of the preeminent attorneys in the field of library First Amendment law—provide a wonderful opportunity for attorneys and trustees to learn the laws, legal precedents, and practical strategies they need to help libraries. Librarians are welcome, but must be accompanied by an attorney. Cost: $395/person; $745 for two Single/double at Georgia Tech Hotel: $149/night Visit www.ala.org/lawyers, call (800) 545-2433 x4226, or e-mail lawyers@ala.org to register or for further details. For more on the SOLINET Annual Member Meeting, visit www.solinet.net/events or call (800) 999-8558.