Freedom to Read Foundation News
50 EAST HURON STREET, CHICAGO, ILLINOIS 60611
PHONE (312) 944-6780
Judith F. Krug, Executive Director
Gordon M. Conable, President
Volume 18, No. 3-4
1993
ELECTION RESULTS
Six Trustees were elected to the Freedom to Read Foundation Board in the April election: Gordon M. Conable,
Robert S. Peck, Linda Steinman, June Garcia, Charles Levendosky and Burton Joseph. Of these, Conable,
Steinman and Joseph were re-elected; Peck, Garcia and Levendosky are new trustees.
These Trustees join the following members to form the Freedom to Read Foundation Board for 1993-94:
Patricia Wilson Berger
J. Dennis Day
Roger Funk
Barbara Froling Immroth
Ginny Moore Kruse
Ex Officio:
Hardy Franklin, ALA President
Arthur Curley, ALA President Elect
Candace Morgan, IFC Chair
Peggy Sullivan, ALA Executive Director
REPORT TO COUNCIL
The Freedom to Read Foundation reports to the American Library Association Council at each Annual
Conference and Midwinter Meeting. The following is the condensed text of the report presented on Tuesday,
January 26,1993, by J. Dennis Day, Freedom to Read Foundation Vice-President.
Thank you for this opportunity to report to you on behalf of the Freedom to Read Foundation.
Judging by events over the last 18 months and, particularly, the last six, school and public libraries appear to be
the focal point of a war against the right to know by the extreme right of center. The initiative, which is highly
organized, well funded and systematic, directs its energies to materials such as Daddy's Roommate and Heather
Has Two Mommies, and multi-cultural curricula. The latest casualty of this new war against libraries and
librarians is Madonna's Sex, which is not only being attacked in its own right but is being used as a catalyst to
attack fundamental democratic values, including the right of all persons, regardless of age, to decide what they
want to read.
We have strong evidence that, based on the law, librarians can continue to provide in their collections ideas and
information across the spectrum of social and political thought.
But it appears that the rule of law may not be enough. To some of the complainants, the end appears to justify
the means, and lacking a legal way to remove materials from libraries, they resort to illegal mechanisms,
including bomb threats and forms of personal reprisal. As helpful, effective and eloquent as the statements and
policies of the American Library Association have been, and as articulate as they have been in defending the
freedom to read, they no longer by themselves are sufficient to keep collections open and access free. We must
have the legal tools in place to do what has to be done. Never before has the burden and the challenge placed on
the Freedom to Read Foundation been in sharper focus than it is right now.
While the Foundation is redoubling its efforts to create the needed legal tools, working closely with our counsel
and cooperating attorneys, we need help. There is another aspect to our counterattack, namely, education. The
Foundation board has voted to strongly support the Intellectual Freedom Committee's request for a program
enhancement that will allow the committee to energize itself and mobilize our colleagues, in every chapter of
our association.
Litigation
Simultaneously, the legal work of the Foundation goes on. We continue our high level of activity with
important First Amendment cases, and have even added to our docket.
Alexander v. U.S.
As you will remember, the ALA Executive Board voted to join with the Foundation in an amicus brief in
Alexander v. The United States. In this case, obscenity convictions for seven items led the government to
confiscate and burn millions of dollars worth of constitutionally protected materials, prior to appeal. As a result,
a speech-oriented business was effectively destroyed by this sweeping use of forfeiture powers under the RICO
laws. The case presented an important opportunity to try to persuade the U.S. Supreme Court that such an
astonishingly punitive use of governmental power against materials which are presumed to be protected by the
First Amendment is well beyond the scope of permissible government action. The U.S. Supreme Court is being
asked to resolve the question of whether the penalty of forfeiture may be used to destroy speech-related
businesses as a punishment for a few isolated obscenity convictions. The case was argued before the United
States Supreme Court on January 12.
Soldier of Fortune Magazine v. Braun
In this case, the Foundation was an amicus in a petition to the U.S. Supreme Court for certiorari. The case
involved Soldier of Fortune's liability for an ad placed in the magazine by a man who, allegedly on the basis of
the ad, was hired to commit a murder. The amicus brief joined by the Foundation argued that the decision of the
Eleventh Circuit upholding the award of damages in this case should be reversed because it created a new
category of unprotected speech, in conflict with past Supreme Court precedent; threatened protected speech by
imposing liability under a standard lacking in constitutional precision; and diminished the important role of
commercial advertising in the marketplace of ideas. The Supreme Court denied certiorari on January 11.
Brown v. Woodland Joint Unified School District
The Foundation has joined with other organizations in an amicus brief on behalf of the defendant school system.
The case, brought by the American Family Association, challenges the use of the IMPRESSIONS reading series
in the Woodland, CA, schools. The case has not yet been set for argument.
Pompano Books and Video v. Satz
The Foundation voted to join an amicus brief in this case which involves an action brought by three adult
bookstores in the Fort Lauderdale, Florida, area against local prosecutors, seeking to enjoin a pattern of
harassment intended to suppress constitutionally protected speech. The federal district court expressed concern
about the actions of the local prosecutors, but refused to enjoin the conduct, partly because the improper motive
to suppress speech was not the "major motivating factor" underlying the harassment. The bookstores appealed.
The Foundation agreed with its legal counsel that any prosecution or pattern of prosecutorial harassment even
partly motivated by an intention or desire to suppress protected speech, should be found unconstitutional and
should be enjoined.
Federal Legislation
Pornography Victims Compensation Act
Free speech organizations, led by the Media Coalition and with the help and participation of the Freedom to
Read Foundation and ALA, succeeded in preventing the adoption of the Pornography Victims Compensation
Act. This attractively titled but wrongheaded legislation would have provided a civil cause of action to victims
of violent crime against third party publishers and distributors of expressive materials, based on the claim that
the materials somehow caused the attack. The bill was based on faulty and unproven assumptions and would
have had a profound chilling effect on the publication and dissemination of material with sexual content. The
Foundation fully expects, however, that a new version of the bill will be reintroduced in this Congress.
Computers, Freedom and Privacy Conference
The Foundation is continuing its involvement in and liaison with computer professionals and others working in
the area of civil rights and free speech in electronic communication and information storage and retrieval
systems. Representatives of the Foundation will be attending the third Computers, Freedom and Privacy
Conference to be held in March in San Francisco. The Conference attracts an extremely broad array of
computer professionals, government agency personnel, librarians and free speech advocates. The first two
conferences have proven to be ground-breaking and extremely valuable in placing librarians at the forefront of
discussions about free access to information in electronic formats, confidentiality of information, and access to
information on the electronic frontier.
Conclusion
The Foundation looks forward to continuing to build upon the extraordinary base of legal precedent protective
of libraries' constitutional status as institutions devoted to the exercise and protection of First Amendment
rights. This legal precedent has been forged with the help and cooperation of the American Library Association,
and together with ALA, we pledge to strengthen and expand it. Thank you.
Respectfully submitted, J. Dennis Day
Vice-President
The report was presented by J. Dennis Day, Vice-President in the absence of Gordon Conable, President of the
Freedom to Read Foundation.
CASES - NEW
Brown v. Woodland Joint Unified School District
The Foundation joined an amicus brief filed in the Ninth Circuit Court of Appeals in Brown v. Unified School
District, a challenge to the use of the Impressions series in the Woodland, California, schools. Organizations on
the brief include the American Association of School Administrators, the American Association of University
Women, the Association of American Publishers, Inc., the Association for Supervision and Curriculum
Development, the California School Boards Association, the International Reading Association, the National
Association of Elementary School Principals, the National Association of Secondary School Principals, the
National Council of Teachers of English, the National Parent Teacher Association, the National School Boards
Association. The following are excerpts of the Brown amicus brief .
. . . The uncontroverted record in this case shows that the Woodland Joint Unified
School District ("Woodland") selected the Impressions series on the basis of
appropriate pedagogical concerns after soliciting input through a lengthy,
participatory process involving parents, educators, and other community
members. Nevertheless, the plaintiffs have asked this Court to promulgate a rule
that no school district may use educational material regardless of its pedagogical
value if, in any subjective view, the material bears any resemblance to religious
practices, even where the source of material is entirely secular, where any
resemblance to religious practice is inadvertent, and where the supposed religious
connotations are not readily discernible. Such a rule would be impossible to apply
because it would demand that educators gain knowledge of countless religious
practices and avoid engaging in any act that anyone might interpret as resembling
a religious practice. In addition to being pragmatically unworkable, administering
such a standard would inevitably require pervasive surveillance of religious issues
by school officials – a result that would itself constitute an entanglement with
religion of the sort that the Establishment Clause prohibits. Finally, imposing such
a broad and uncertain standard would severely chill educational development and
experimentation by teachers, librarians, administrators, and school board
members, as well as the developers and publishers of textbooks and other
educational materials, all to the detriment of this nation's educational goals . . .
[T1he district court properly concluded that the use of Impressions in Woodland's
curriculum easily passed the . . . test devised by the United State Supreme Court .
..
[A] statute or practice which touches upon religion . . . must have a
secular purpose; it must neither advance nor inhibit religion in its
primary effect; and it must not foster an excessive entanglement
with religion.
[T]he plaintiffs have conceded that Woodland did not intend to promote
witchcraft or any other religion by adopting and using Impressions and that
Woodland's use of Impressions lacks any religious purpose ....
[T]he plaintiffs have at most identified a perceived "overlap between 38 exercises
and relatively obscure religious practices of Witchcraft and Neopaganism.". . .
Even if the exercises were to resemble religious exercises as the plaintiffs allege,
however, the Supreme Court has recognized that "the 'Establishment' Clause does
not ban federal or state regulation of conduct whose reason or effect merely
happens to coincide or harmonize with the tenets of some or all religions.". . .
[T]he district court's conclusion . . . which concerns "excessive entanglement"
with religion – likewise fits easily within existing Supreme Court precedent.
Woodland's adoption and reconsideration of lmpressions involved neither the
surveillance nor the review of matters with a supposed religious content to any
degree addressed by the Establishment Clause. For this reason, there can be no
serious claim that Woodland's use of Impressions constitutes an "excessive
entanglement" with religion ....
Rather, the plaintiffs challenge a small fraction . . . of the exercises contained in
Impressions solely because they claim the exercises allegedly focus on witches or
magic, or resemble practices the plaintiffs associate with witchcraft .... The
district court properly examined the activities at issue in the context of the other . .
. stories and activities . . . in Impressions and concluded that the activities did not
violate the Establishment Clause . . . . The exercises singled out by the plaintiffs,
like all the other exercises in Impressions, were developed as a part of a "whole
language" approach to reading that encourages children to respond to ideas in the
reading selections .... The exercises at issue here constitute a minuscule fraction of
the exercises in Impressions and are selected by the plaintiffs mainly from reading
units designed to use around Halloween, units which recount Native American
stories, and units involving fantasy and medieval themes ....
[N]either Woodland officials nor the creators of Impressions attached religious
significance to the challenged exercises . . . . They understood these exercises to
represent witches and magic as elements of fairy tales and folklore, popularized as
stereotypes in American culture, and not as actual religious practices . . . .
Nonetheless, the plaintiffs ask this Court to hold that Woodland's use of
Impressions violated the Establishment Clause regardless of whether the
challenged exercises were understood or believed by anyone except themselves to
have religious significance.
A ruling in favor of the plaintiffs would establish a novel and far-reaching
principle requiring school systems to eliminate from their curricula all materials
and exercises that might be argued to bear some resemblance to any teaching or
practice of any religion, without regard to whether the educational materials and
exercises are based upon wholly secular premises. Such a rule would extend far
beyond current Establishment Clause doctrine and permit the plaintiffs to censor
school materials .
. . . Under the plaintiffs' construction of the Establishment Clause, almost any
classroom activity or educational decision could sufficiently resemble – or be
perceived to resemble – a religious practice so as to violate the Constitution. As a
result, educators would offend the Establishment Clause constantly, regardless of
the secular content and purpose of a particular activity or the merit of a particular
decision. In many instances, educators would be unaware of a violation until
someone perceived it as such. The effects of such a rule would be demoralizing
and pernicious. Public schools could not fulfill their vital educational mission
under these circumstances . . . . [C]ontinuous and pervasive policing by the
government of a supposed line between what is "religious" and what is not would
actually defeat one of the core objectives of the Establishment Clause: namely,
that government officials should avoid becoming excessively entangled in
religious affairs ....
Moreover, compliance with such a revolutionary reading of the Constitution
would require school officials to employ religious, rather than educational, criteria
for curriculum decisionmaking. School districts would need to acquire a vast
amount of knowledge about all the religions of the world in order to determine
whether the materials and exercises they employ resemble any practices-o€ any
religions .... Each school district would need its officials to become religion
experts or need to retain such experts. Such steps would be prohibitively
expensive in this era of financial distress at both the state and federal level.
All of this would be not only prohibitive in a practical sense even religion
scholars are unlikely to know the practices of every obscure religion – but also
would require schools to become involved intimately in religion-based
decisionmaking. School boards would find themselves continuously making
religion-based judgments in the selection of textbooks; teachers would have to
make religion-based decisions about virtually every lesson taught. Accordingly,
the dominant criterion for making curriculum and teaching decisions would
become religious rather than educational.
Thus, a further reason for rejecting the plaintiffs' arguments is that accepting them
would in fact cause the very harms of religious entanglement that the
Establishment Clause was designed to avoid ....
The resulting self-censorship would severely chill the entire educational process.
Impressions . . . is an innovative and highly acclaimed series that stimulates
students to learn by exposing them to a broad range of literature and folklore that
captures students' imaginations. Teachers, in the same way, strive individually to
select and create lessons that stimulate children's intellectual curiosity ....
Teachers – out of fear of being involved in litigation – would avoid teaching
lessons or exercises that might inspire controversy and the ensuing litigation costs
or liability. Inoffensiveness, rather than effectiveness, would shape educational
values and objectives. Because the cost of litigating even meritless claims can be
prohibitive, teachers, librarians and administrators would likely self-censor to a
greater degree than constitutionally necessary in order to avoid litigation,
regardless of their ultimate chance for success . . . . Accordingly, the quality of
public education would suffer dramatically if the Court were to accept the
plaintiffs' position.
Naturally, the urge to self-censor would affect school boards as well. Rather than
evaluate the educational merits of competing textbooks and solicit responses from
education professionals and community members, school boards would be forced
to screen out textbooks by predicting whether those materials might offend the
religious sensibilities of any one person in their communities. The sort of
scrupulous review undertaken by Woodland in this case would give way
inevitably to a guessing game in which school boards would preoccupy
themselves with attempts to predict the religious perceptions of every community
member ....
Pompano Book & Video v. Satz
At its 1993 Midwinter Meeting, the Board of the Freedom to Read Foundation voted to join an amicus brief in
Pompano Books & Video v. Satz, filed before the U.S. Court of Appeals for the Eleventh Circuit. Other
organizations on the brief include the Council for Periodical Distributors Association, the American Booksellers
Foundation for Free Expression, the Association of American Publishers, the International Periodical
Distributors Association, the Periodical and Book Association of America, and the Recording Industry
Association of America. Below are excerpts from the brief .
. . . The amici produce, distribute, sell, and otherwise make available a great
percentage of the protected expression in this country. They provide the essential
link between the authors, recording artists and other speakers, and the readers and
listeners who are intended recipients of protected expression. Thus, amici are both
essential to and dependent upon the thriving, unrestrained American marketplace
of ideas that is a major source of inspiration for the world. Publishers and other
distributors make available to all Americans the essential means for their
participation in that marketplace: a realm of information, ideas, and images where
the reader is sovereign, empowered to seek, contemplate, accept, or reject
material subject only to limitations on resources and the reader's or listener's own
values, interests, and intellect. But just as they enrich and enable the marketplace
of ideas, publishers and distributors also depend on the vitality of that
marketplace. They can make available only that which is available to them, that
which they are free to make available, and that which their patrons are free to see
or hear. The First Amendment – and its protection of all participants in the
marketplace of ideas – is thus the essential prerequisite for fulfillment of the vital
social function of publishers, distributors; and libraries.
Mainstream publishers and distributors of expression, and their customers, are
ultimate victims of government-orchestrated efforts to suppress protected
expression, whether or not those efforts are initially directed at them. A prior
restraint is the most dangerous form of government suppression of free
expression; through it, government agents prevent speech they disfavor ever from
being uttered, without regard to whether that speech would be protected or
unprotected by the First Amendment.
Bad faith prosecutions – those brought at least in part for the purpose of
suppressing future, presumptively protected expression – present one of the most
odious forms of prior restraint. Prosecutors can use prosecutions or the threat of
prosecution to shut down expression to which they are hostile, without any court
ever ruling whether the speech suppressed would have enjoyed the protection of
the Constitution. Such pressure can be used to coerce mainstream institutions,
including businesses and libraries, to refrain from publishing, stocking, or
distributing material which the prosecutor knows to be protected by the First
Amendment. Faced with an implacably hostile prosecutor, publishers and
distributors may be forced to avoid any works which may be considered
offensive. As central links in the American marketplace of ideas, amici know first
hand the serious damage to that marketplace that can be and has been done by
prosecutorial pressure directed at presumptively protected future speech ....
The plaintiffs in this case are three Broward County, Florida, adult bookstores and
certain of the stores' owners and employees . . . . [T]hose plaintiffs have been
subjected to grossly improper demands, threats, and prosecutorial misconduct.
The plaintiffs brought this civil action seeking to enjoin defendants-appellees'
long campaign of harassment, undertaken with the improper and unconstitutional
purpose of reducing or eliminating the availability of non-obscene, sexually
oriented material in the Broward County area. The district court below appeared
to credit testimony that the defendant government officials had professed the goal
of "shut[ting] down the adult bookstores in Broward County in order to clean up
the county,". . . and evidence that, as part of defendants' strategy of multiple
criminal and civil actions against the bookstores, defendants intended to file "so
many motions in the cases against the adult bookstores that it would be
economically unfeasible for them to stay in business."
The sole issue in determining whether an alleged bad faith prosecution should be
enjoined is whether government officials have sought to use the prosecution or
threats of prosecution to suppress presumptively protected future expression.
[N]umerous courts have enjoined a wide range of governmental actions taken to
suppress presumptively protected future expression .... [C]ourts have squarely
held that prosecutions brought to suppress presumptively protected future
expression "will justify an injunction regardless of whether valid convictions
conceivably could be obtained."'
Thus, a governmental scheme to impose a prior restraint must be enjoined
whether or not the means used to achieve that objective could or would have been
taken even absent that improper purpose . . . . [T]he sole questions where bad
faith prosecution is alleged is whether the prosecutor has sought to use the
prosecution and/or threats of prosecution to impose a prior restraint .... If so, that
showing alone required injunctive relief barring prosecutions used or threatened
for that improper purpose . . . .
Finley v. NEA
It seems that the Foundation's fears regarding the effects of the Rust v. Sullivan decision have come to pass: on
March 29, the Clinton administration filed an appeal of the June, 1992, decision in Finley v. NEA. In that
decision, Judge Wallace Tashima declared unconstitutional the "decency" provision which had been
incorporated in the 1990 reauthorization language of the National Endowment for the Arts. In its appeal, the
government is arguing, among other points, that the ruling in Rust, which upheld the abortion "gag" rule on
federally funded clinics, allows the government to place content restrictions on speech supported with public
funds. The implications for publicly funded libraries are ominous.
The Foundation is exploring the possibility of joining an amicus brief being prepared by the People for the
American Way to be filed before the Ninth Circuit. Watch the FTRF NEWS for further information as
developments warrant.
DUES REMINDER
Dues for regular members of the Freedom to Read Foundation are now $35.00. Renewing members should be
sure to "check the check" to reflect the dues increase and maintain membership and voting privileges.