Freedom to Read Foundation News
50 EAST HURON STREET, CHICAGO, ILLINOIS 60611 PHONE (312) 280-4226
Judith F. Krug, Executive Director
June Pinnell-Stephens, Presdient
Vol. 22, Nos. 1-2
1997
Speaking for the coalition led by the American
Library Association, Bruce Ennis, who had
successfully challenged the CDA before a threejudge federal panel in Philadelphia, described the
Internet as “democratizing and speech enhancing,”
a distinctive forum for worldwide conversation at
little or no cost. Ennis went on to stress that the
CDA would be ineffective in protecting children
from “indecent” material, but would restrict
constitutionally protected speech from adult users
of the Internet. He also discussed parental liability
and responsibility. “Under this law, there is no
parental choice....The government decides what is
appropriate.”
NOW WE WAIT...
On March 19, the United States Supreme Court
heard oral arguments in a landmark case which
will determine the future of the never-ending
global conversation that is the Internet. The
Court’s decision, expected by the beginning of
July, will assess not only the constitutionality of
the Communications Decency Act (CDA), but will
set the standards by which all future regulations of
cyberspace communications will be judged by all
other courts. In addition, the Supreme Court's
ruling will have a major impact on future
legislative and administrative actions. Libraries,
civil libertarians, parents, and computer users are
among the groups anxiously awaiting the High
Court’s ruling.
Speaking for the government, Deputy Solicitor
General Seth Waxman ominously told the justices
that the Internet “threatens to give every child with
access to a connected computer a free pass to every
adult bookstore and video store with the click of a
mouse...and threatens to render irrelevant all prior
efforts to protect children from indecent material.”
Congress passed the CDA in February, 1996, as a
last-minute addition to the Telecommunications
Act, making it a crime to display “indecent”
material on the Internet to minors. A violation
carries penalties of up to $250,000 and two years
in prison.
The lawyers who argued the case are among the
most highly regarded of Supreme Court advocates,
and the argument was fast paced and spirited. In a
rare move indicating the complexity and
importance of the case, Chief Justice Rehnquist
allowed each side an additional five minutes to
argue their positions.
This case is one of the toughest of the Court’s
term. Not only will it require the justices to deal
with the difficult balance of free speech rights and
“protecting” children from material some find
offensive, but it also will force them to become
familiar with emerging telecommunications
technology.
Neither lawyer had a particularly easy time. The
justices seemed to express concern about both
arguments, and focused a great deal of time on the
technology of the Internet rather than the
constitutional issues raised by the Act itself.
At oral argument, the Court was presented with
two strikingly different descriptions of the Internet.
Whether or not this medium can be regulated by
the government may depend on which description
the justices find more credible.
Several justices questioned Waxman on whether
the law could criminalize parents who make the
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“If the United States has a public policy, it can lead
the way, and maybe the rest of the world will
follow.”
Internet available to their children on home
computers or teenagers who converse via the
computer about their “sexual experiences, real or
imagined,” as Justice Stephen Breyer put it. “This
has been known to happen in high school,” Breyer
said. “Do you suddenly make large numbers of
high school students across the country guilty of a
federal offense?”
Transcripts of the entire oral argument can be
found on the ACLU website at www.aclu.org.
In the snow and rain, people on both sides of the
issue gathered outside the court, shouting slogans
and carrying banners. The demonstrations were
civil, but the debate over the issue of whether the
Internet will remain a free medium continues.
Supporters of the CDA remain convinced that
government restriction is the answer to the
proliferation of sexually explicit material on the
Internet. “We can’t expect parents to supervise
their kids if they can’t set the clocks on their
VCRs,” said Donna Rice Hughes, communications
director for Enough is Enough, a Virginia-based
anti pornography organization. Former Senator
James Exon, the sponsor of the CDA, has tellingly
said, “The law won’t be foolproof, but it will
work,...just like speed limits don’t eliminate all
speeders on the asphalt highways, they do make
highways safer.”
In an answer that did not seem to satisfy either
Justice Breyer or Justice Anthony Kennedy,
Waxman responded that the prospect of that
liability was a “small price to pay” to protect
children from unfettered access to Hustler,
Penthouse, and other sexually explicit materials.
Waxman conceded under questioning from Justice
David Souter that the CDA was written in such a
way as to make a parent liable for permitting his or
her own child to view “indecent” material on a
home computer. Waxman added that this was not
the actual intent of Congress and added that the
Court could interpret the law in a way that ruled
out parental liability.
In one of the most telling responses, Souter
responded, “That would be grabbing a limitation
out of thin air.” Justice Ruth Bader Ginsburg
agreed. “This kind of tinkering courts don’t do.”
ACLU attorney Christopher Hansen summed up
the CDA proponents well, “Frankly, I’m not
comforted by advocacy groups or even by the
government saying, ‘Oh, trust us, we promise not
to abuse this broad power. We promise only to use
it against real bad guys.’”
Justice Sandra Day O’Conner also seemed
concerned about government restriction of the
Internet, describing the medium as “a public place
because anyone can get online and have a
conversation. It is much like a street corner or a
park.”
Now it’s up to the nine justices in Washington.
And we wait.
But Ennis also had his fair share of judicial
skepticism. Justice Antonin Scalia especially felt
that the government has an interest in protecting
children from sexually explicit materials,
particularly those who do not have parents
available. The justices seemed to entirely discount
the argument that the CDA is ineffective because
40% of the material on the Internet originates from
points outside the United States, which are not
subject to the laws of this land.
AMERICAN LIBRARY
ASSOCIATION AND THE
FREEDOM TO READ
FOUNDATION SUE TO BLOCK
NEW YORK INTERNET
CENSORSHIP
The American Library Association (ALA) and the
Freedom to Read Foundation are plaintiffs in a
lawsuit filed on January 14 seeking a preliminary
“That’s a weak argument,” Justice Kennedy stated.
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injunction against a New York statute that makes it
a crime to disseminate materials that are “harmful
to minors” through any computer communications
network. The American Civil Liberties Union
(ACLU) and other key groups joined the ALA in
the litigation, American Library Association v.
Pataki, challenging the statute, which became law
on November 1, 1996. A hearing to determine if a
preliminary injunction will be granted began on
April 3.
States Supreme Court on March 19. A decision is
expected by July.
At a news conference at the CyberCafe in New
York in January, ALA Executive Board Member
Nancy Kranich said, “If allowed to stand, this law
would have a tremendous chilling effect on
freedom of speech on-line and access to important
information New York residents need for jobs,
health, and education. It also means that librarians
in New York could be held criminally liable for the
content as well as the access they provide to the
Internet, which could lead to self-censorship or
force libraries off-line.”
Other plaintiffs in the case are the New York
Library Association, the Westchester Library
System, the American Booksellers Foundation for
Free Expression, Bibliobytes, Association of
American Publishers, Periodical and Book
Association of America, Magazine Publishers of
America, Public Access Networks Corporation
(PANIX), ECHO, NYC NET, Art on the Net, and
Peacefire.
While a Supreme Court decision striking down the
CDA would not necessarily prevent other states
from passing Internet censorship laws, the CDA
and the New York law are similar enough that it is
believed the New York statute could not stand
should the Court strike down the federal
legislation.
Complete information on the New York lawsuit,
including the complaint, plaintiff statements and
other case materials, is available via the ACLU’s
website (www.aclu.org) and America Online site
(key word: ACLU). Information on Foundation
and ALA participation in this case is available via
the ALA’s website at www.ala.org.
Judith F. Krug, Executive Director of the
Foundation and Director of ALA’s Office for
Intellectual Freedom, said the lawsuit was filed
because the law is an unconstitutional, contentbased restriction on free speech that would reduce
adult communication to levels acceptable for a sixyear-old child. ALA believes that the law fails to
distinguish between material that may be
“harmful” to very young minors and material that
may be harmful to teenagers, said Krug.
RESTRICTION OF “INDECENT”
MATERIAL ON CABLE ACCESS
TELEVISION UPHELD
“Our concern is that the determination as to what is
harmful or inappropriate for young people is so
subjective that libraries and librarians will be
placed in the untenable position of having to
second-guess what is going to be appropriate for
individual computer users....We believe it is the
responsibility of parents and/or guardians to guide
their children when they access the Internet in the
library or at home,” Krug said.
On the heels of ALA’s challenge to the portion of
the 1996 Communications Decency Act (CDA)
that deals with the Internet, last February, Playboy
Entertainment Group filed a lawsuit alleging that
Section 505 of the CDA was unconstitutional.
Section 505 mandates a cable television operator
scramble or block “indecent” material on any cable
channel primarily dedicated to “sexually explicit”
programming. As with the section of the CDA
pertaining to the Internet, “indecency” in Section
505 is not defined. While the intent of Congress
seemed to be the elimination of “signal bleed,” a
partial reception of cable television programming
in the homes of non-subscribers, the legislation
ALA and other groups are engaged in a similar
battle at the federal level in a challenge to the
Communications Decency Act of 1996 (CDA)
which bans “indecent” materials on the Internet to
minors. The case was argued before the United
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impinged on constitutionally protected speech.
Thus, as with the CDA, this section was
challenged as unconstitutionally vague and
overbroad. In May, 1996, the Freedom to Read
Foundation joined several other organizations in a
filing an amicus brief in this case, Playboy
Entertainment Group, Inc., v. United States of
America.
prevent minors from gaining access to
programming intended solely for adults did not
violate the First Amendment, is likely to have an
impact on the challenge to the entire CDA. We can
only wait to find out what the extent of it will be.
MILITARY HONOR AND
DECENCY ACT OF 1996
STRUCK DOWN
On November 8, 1996, a special three-judge
federal panel in Delaware denied Playboy’s motion
for a preliminary injunction and terminated the
existing temporary restraining order. (On March 7,
1996, a federal district court judge had granted a
temporary restraining order in this matter). In
finding that Playboy’s claim would not succeed on
its merits, the panel relied heavily on the recent,
and muddled, United States Supreme Court
decision in Alliance for Community Media v.
FCC, which struck down two provisions of a law
requiring “indecent” programming on cable leasedaccess channels to be blocked or segregated. Under
Alliance’s strict scrutiny review, the panel found
that “signal bleed” can be sufficiently sexually
explicit, and that there is no public interest in
permitting it to exist. Moreover, since a majority in
Alliance accepted the indecency standard in a
cable context, this panel also denied that the statute
is vague—Playboy’s major argument.
On January 22, 1997, Federal Judge Shira
Scheindlin of the United States District Court for
the Southern District of New York granted a
request by the publishers of Penthouse, and a
variety of magazine and video trade groups, for a
permanent injunction against the Pentagon,
overturning a law that would have banned the sale
of sexually explicit periodicals at military posts,
exchanges, and stores.
The Military Honor and Decency Act of 1996 was
signed into law by President Clinton on September
23, 1996, and had been scheduled to take effect on
December 22, 1996. The Act would have
prohibited the sale or rental of sexually explicit
material on property controlled by the Defense
Department, including commissaries and ship
stores. It also would have banned the sale or rental
of such material by a member of the Armed Forces
or a civilian officer or employee acting in a official
capacity.
The panel pointed out that the target of Section
505 was not speech itself—the “indecent”
programming—but rather the signal bleed. But
then, in somewhat twisted logic, they went on to
say that since the signal bleed can be sexually
explicit programing, it also can be regulated. The
panel concluded the statute “clearly recognizes a
‘compelling interest,’” and that the restrictions are
“a carefully tailored, and constitutional, solution.”
Congress, it stated, was justified in addressing the
problem created by “sex-dedicated networks.”
The plaintiffs sued, alleging that the Act violated
their First Amendment rights to disseminate
constitutionally protected periodicals, audio
recordings, and videotapes. They argued that the
military can only restrict materials protected by the
First Amendment when its goal is to ensure its
ability to carry out its mission and to maintain
loyalty, discipline, and morale in the armed forces.
Playboy appealed this ruling to the United States
Supreme Court. The Court summarily dismissed
Playboy’s petition on March 25. This dismissal
affirms the judgment of the Court below.
The government argued that the law’s purpose is to
promote military core values and improve public
perception of the military. “The statute is not about
‘sex is fun.’ The statute is about restricting speech
that may express such a message in vulgar and
base terms,” stated Daniel Alter, Assistant United
The lower court decision affirmed by the Supreme
Court, which states that Congress’s attempt to
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States Attorney.
Association of America, the Recording Industry of
America, and the Video Software Dealers
Association.
Judge Scheindlin, in holding the Act
unconstitutional, stated, “In the context of our long
and rich First Amendment tradition, it becomes
clear that sexually explicit material cannot be
banned from sale or rental at military exchanges
merely because it is offensive....While the majority
of Americans may wish to ban pornography, in the
final analysis, society is better served by protecting
our cherished right to free speech.”
Federal prosecutors have filed a notice of appeal
and asked for an expedited review of the case. An
update on this appeal will be in the next issue of
the FTRF News.
APPEALS IN FOUNDATION
CASES
Judge Scheindlin went on to say that the result of
permitting such offensive speech may be
“unfortunate and unpleasant” but, “the
Constitution has effectively protected us for over
two centuries from living in a society where the
government intrudes on our individual rights by
deciding what consenting adults can read or
view....There is no constitutionally acceptable way
to distinguish offensive speech from inoffensive
speech....What one person may find to be a
lascivious portrayal of nudity may be inspiring art
to another.”
The following Foundation cases have been
appealed:

Cohen v. San Bernardino Valley College
92 F.3d 968 (9th Cir. 1996)
Despite a resounding victory in the Ninth Circuit
Court of Appeals for Professor Cohen and his right
to academic freedom, San Bernardino Valley
College appealed this case in January to the United
States Supreme Court. As of this date, the
College’s petition to the Court is still pending. For
a review of this case, see: Freedom to Read
Foundation News, Vol. 21, Nos. 3–4, pgs. 4–5.
Michael Bamberger, whose law firm represents
General Media Communications (publisher of
Penthouse), said that Scheindlin’s ruling
“vindicates the First Amendment rights for military
personnel and First Amendment rights generally,”
because the decision is not limited to a military
context.

Rice v. Paladin Press 940 F.Supp 836
(D.Md.1996)
A precedent-setting lawsuit that sought to hold
Paladin Press liable as an “accessory” to murder,
but was summarily dismissed in federal district
court in August, 1996, has now been appealed to
the United States Court of Appeals for the Fourth
Circuit. The briefing schedule was completed in
early January, and oral argument will occur during
the late spring or summer. For a review of this
case, see: Freedom to Read Foundation News, Vol.
21, Nos. 3–4, pgs. 5–6.
In fact, Judge Scheindlin stated, “A plain reading
of the Act leads inevitably to the conclusion that it
was drafted in an attempt to limit the sale and
rental of non-obscene speech that Congress
believed to be offensive, and to penalize those who
publish it by preventing its sale to military
exchanges,” she said.
Penthouse is the third most popular magazine sold
on military exchanges, with sales of 19,000 copies
per month.
VISUAL ART IS PROTECTED BY
THE FIRST AMENDMENT
Plaintiffs in this case were General Media, the
International Periodicals Distributors Association,
the National Association of Recording
Merchandisers, the Periodical and Book
In an important First Amendment victory, the
Second Circuit Court of Appeals, in the case of
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Bery v. City of New York, held that visual art is
equal to written expression as a form of “speech”;
that artists can sell their art on the street as well as
display it; that they need no license or permit to do
so; and that the public has its own First
Amendment right to view and buy art on the street
as an alternative to galleries and museums. This
October 10, 1996, decision completely reversed a
1995 ruling by Federal District Court Judge,
Miriam Cederbaum, who held that visual art is not
protected under the First Amendment.
to the United States Supreme Court. As of this
writing, the city’s petition is still pending.
FREEDOM TO READ
FOUNDATION REPORT TO
COUNCIL
The Freedom to Read Foundation reports to the
American Library Association (ALA) Council at
each Annual Conference and Midwinter Meeting.
The following is the condensed text of the report
presented on Tuesday, February 18, 1997, by June
Pinnell-Stephens, Freedom to Read Foundation
President, at the 1997 Midwinter Meeting in
Washington, DC.
According to the Second Circuit, under the
constitutional test applied to content-neutral
regulations, the New York City law prohibiting
visual artists from selling their works in public
places without a vendors license is not a narrowly
tailored statute that serves a significant government
interest. The opinion states, “Both the lower court
and the City demonstrate an unduly restricted view
of the First Amendment and of visual art itself.
Such myopic vision not only overlooks case law
central to First Amendment jurisprudence but
fundamentally misperceives the essence of visual
communication and artistic expression.”
As president of the Freedom to Read Foundation, I
am pleased to report on the Foundation’s activities
at this Midwinter Meeting.
Litigation
The current focal point of the Foundation’s work
continues to be the challenge to the
Communications Decency Act of 1996 (CDA).
The United States Supreme Court has set March
19, 1997, as the date for the oral argument in this
litigation, American Library Association v. United
States Department of Justice, now consolidated
with and cited as Reno v. ACLU. It is expected
that the Supreme Court will rule on this matter in
June or July—just in time for ALA’s Annual
Conference!
This was a important victory for artists in New
York who had been arrested, threatened with
arrest, or harassed by law enforcement officers if
they did not have a vendor’s license—a license
unnecessary for book or magazine sellers. Some
artists even had their work confiscated and
destroyed.
Robert Lederman, the lead plaintiff, issued this
statement after the ruling: “The Federal appeals
court has justified our faith in the U.S. Court
system. This ruling affirms not only the First
Amendment rights of street artists, but the right of
every person in this country to view art without
unnecessary interference from the government or
attempts to ‘abridge speech.’ We hope that now the
City of New York can return to being the art
capital of the world rather than the artist arrest
capital, and that street artists can be recognized for
improving the citys [sic] quality of life by
displaying and selling their art.”
The CDA was Congress’s attempt to ban minors’
access to “indecent” materials on the Internet. In a
resounding victory, due in great measure to the
work of the library community, a special threejudge federal panel declared the Act violative of
the First Amendment last June.
The government filed its initial brief in the
Supreme Court on December 29,1996. In addition,
three organizations filed “friend-of-the-court”
(amicus) briefs in support of the government’s
position: Enough is Enough, run by Dee Jepsen
and Donna Rice Hughes; Morality in Media; and a
The City of New York has appealed this decision
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group of members of Congress led by former
Senator James Exon (D-Neb.), who sponsored the
CDA. The ALA and ACLU answering briefs will
be filed on February 20. The government’s reply
brief is due on March 7.
accomplice to the crime. This was due to the fact
that the man who perpetrated the crime (a triple
murder) had purchased the book some 14 months
earlier. While the Foundation most often
participates in litigation at the appellate level, we
filed this amicus brief at the trial court level due to
the serious First Amendment issue involved—
holding publishers responsible for actions that
supposedly result from reading their publications.
The plaintiffs have appealed their case to the
United States Court of Appeals for the Fourth
Circuit. Oral arguments are expected sometime
during the late spring or summer, 1997.
In its appeal to the Supreme Court, the government
is not only seeking unprecedented powers to
criminalize speech on the Internet but, for the first
time, is also setting forth the outrageous claim that
it is “protecting” the First Amendment by
censoring the Internet. Their reasoning is that the
fear of encountering “indecency” on the Internet
(though constitutionally protected) could deter
potential users from getting on-line, denying them
their First Amendment right to participate in this
new medium. The government’s arguments, if
adopted, would justify censorship not only on the
Internet, but also in libraries and bookstores as
well. That is why the Foundation, ALA, and the
other plaintiffs are seeking a decision from the
Supreme Court on this important free speech issue.
Other Matters
The Foundation and ALA launched a special CDA
fundraising campaign over the last several months
to help pay some of the outstanding legal expenses
in this case—which have reached $1.1 million.
The response to the campaign was very gratifying
and showed us that our efforts were focused in the
right place—this is a major issue for the library
community. In order to honor major contributors
to this special campaign, the Foundation and ALA
sponsored a special reception on Friday evening
with the legal team from Jenner & Block, who
were so crucial in the Philadelphia victory last June
and are working hard on the Supreme Court
appeal.
[President Pinnell-Stephens then discussed
American Library Association v. Pataki, Playboy
Entertainment Group v. United States, and the
striking down of the Military Honor and Decency
Act of 1996, each of which are cases featured
elsewhere in this issue of the Freedom to Read
Foundation News.]
In a victory for the Foundation, a United States
District Court Judge reaffirmed his decision that a
county prosecutor’s directive constituted prior
restraint, violating the First Amendment. The case,
Playboy v. Deters, involved an attempt by local
law enforcement officials to remove Playboy and
four other constitutionally protected magazines
from a Barnes & Noble bookstore in Cincinnati.
Board member Charles Levendosky, editorial page
editor of the Casper (WY) Star-Tribune, reported
on the activities of our joint project with the ALA
Intellectual Freedom Committee—the First
Freedom Op-Ed Service. A complete list of op-ed
pieces provided by our service to date was
distributed, and he solicited suggestions both for
topics that had not been covered and for potential
authors for future pieces. In addition, he asked
librarians who see the columns in their local papers
to alert the Office for Intellectual Freedom so we
know which papers are using this service.
In Rice v. Paladin Press, a United States District
Court judge dismissed the plaintiff’s action in its
entirety by granting the defendant’s motion for
summary judgement. In short, the judge found that
a book, Hit Man: A Technical Manual for
Independent Contractors, is protected speech
under the First Amendment. The book’s publisher
was sued by the victims’ family, who alleged that
the book, and therefore its publisher, was an
As we have done for the last two years, the
Foundation participated in the 1996 campaign of
the Independent Charities of America (ICA), an
alternative to the United Way for charitable giving
in the workplace. We will be a part of this national
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campaign again in 1997. The Foundation also
participates in several state ICA campaigns, and
will continue to do so.
all the way to the top. I look forward to reporting
on the outcome of this historic lawsuit, and the
other vital work of the Foundation, at the Annual
Conference in San Francisco in June.
In conclusion, the Foundation looks forward to this
critical year for the First Amendment and libraries.
The United States Supreme Court will render a
landmark decision on the Internet and the
parameters of free speech on that revolutionary
medium. The resulting impact on library service
can only be imagined. The Foundation entered on
the ground floor of this issue and will be involved
Respectfully submitted,
June Pinnell-Stephens
President
This newsletter is printed courtesy of SIRS (Social Issues Resources, Inc.), Boca Raton, FL
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