The Board of Directors of the Freedom to Read Foundation met on Thursday, 2006
June 22, during the 2006 American Library Association Annual Conference in New
Orleans, Louisiana.
As usual, much of the meeting was spent in reviewing the cases that the FTRF has undertaken or is monitoring. Updates were given on the status of cases that have been presented previously. These include:
1. Gonzales v. American Civil Liberties Union (formerly ACLU v. Reno):
Following the Supreme Court’s decision holding that the plaintiffs were likely to prevail on their claim that the Children’s Online Protection Act unconstitutionally burdens protected speech, the case has been remanded to the
District Court 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. The trial is currently scheduled for
October 2006.
2. John Doe and ACLU v. Gonzales, et al. (formerly John Doe and ACLU v.
Ashcroft, et al.): In September 2004 Judge Marrero of the Southern District of New York ruled that the statute authorizing National Security Letters
(NSL), as amended by the USA PATRIOT Act, which permits the FBI to compel the production of information without judicial review, is unconstitutional. The
Second Circuit Court of Appeals consolidated hearings in this case with the
Connecticut Doe v. Gonzales (see #3, below) and heard oral arguments on
November 2, 2005. On May 24, 2006, the Second Circuit remanded the case back to the district court, instructing the district court to reconsider its decision in light of the significant changes made to the NSL statute by the reauthorization of the USA PATRIOT Act.
3. Doe v. Gonzales: A member of the American Library Association from
Connecticut and the ACLU filed this lawsuit to quash a National Security
Letter (NSL) that asks for the names and identifying information of every person who used a library computer on a particular day. The lawsuit also challenges the gag order that accompanies an NSL, claiming the gag order violates Doe’s First Amendment rights. In September 2005 the court ruled that the gag order should be lifted but stayed its decision to allow the government an opportunity to appeal the decision to the Second Circuit Court of Appeals.
The ACLU filed an emergency application to the Supreme Court requesting a lifting of the stay, but that application was denied. The Second Circuit consolidated Doe’s appeal with the New York Doe and ACLU v. Gonzales appeal
(see #2, above), and heard oral arguments on November 2, 2005. On May 24, the
Second Circuit dismissed the appeal as moot after the government informed the court that it no longer opposed Doe's decision to reveal his identity. FTRF is an amicus curiae in this case , having filed briefs in support of Doe before the U.S. Supreme Court and the Second Circuit.
4. Muslim Community Association of Ann Arbor v. Gonzales: This lawsuit

challenges Section 215 of the USA PATRIOT Act, which amends the business records provision of the Foreign Intelligence Surveillance Act. Section 215 permits FBI agents to obtain all types of records, including library records, without a showing of probable cause. The government filed a motion to dismiss the case on the grounds that plaintiffs do not have standing to challenge the law. The court heard oral arguments in December 2003 and a decision is pending.
5. Chiras v. Miller: Daniel Chiras and a group of parents and students filed this class-action lawsuit after the Texas State Board of Education voted to reject Chiras’ textbook, Environmental Science: Creating a Sustainable Future for Texas high school environmental science classes because it believed the textbook was “anti-Christian” and “anti-free enterprise.” The District Court dismissed the suit, holding that school boards may reject textbooks if they disagree with the author’s viewpoint when such “viewpoint discrimination” is
“reasonably related to legitimate pedagogical concerns.” The plaintiffs appealed the decision to the Fifth Circuit Court of Appeals, which upheld the district court’s decision in December 2005. The plaintiffs decided not to seek certiorari with the U.S. Supreme Court, thus concluding the case.
6. Southeast Booksellers Association v. McMasters (formerly Southeast
Booksellers Association v. Condon): Plaintiffs challenged the constitutionality of South Carolina’s “harmful to minors” Internet content law. Both plaintiffs and defendants filed cross-motions for summary judgment, and following several hearings, the court granted summary judgment to the plaintiffs. The parties are now litigating the issue of attorneys’ fees, and a settlement is pending. (At the meeting it was announced that this settlement had just been reached.) FTRF is not a party to this suit.
7. The King’s English v. Shurtleff: This lawsuit challenges the constitutionality of a recently enacted Utah statute that expands the state’s
“harmful to minors” statute to Internet content. Among its problematic provisions are statutes requiring the creation of an Adult Content Registry, requirements that ISPs block Web sites listed in the registry, and a requirement that content providers evaluate and label content as “harmful to minors.” The state filed a motion to dismiss all but three of the plaintiffs, which remained pending before the court while the Utah legislature considered a legislative amendment to the “harmful to minors” statute (the proposed bill did not pass). The order barring enforcement of the statute remains in effect.
8. ABFFE v. Petro (formerly Bookfriends, Inc. v. Taft): This is a challenge to the Ohio obscenity statute and “harmful to minors” law addressing both print materials and Internet content. In September 2004 Judge Walter Rice sustained in part and overruled in part both plaintiffs’ and defendants’ motions for summary judgment. The parties are still waiting for an expanded opinion to learn the specifics of the ruling.
9. Entertainment Software Association v. Blagojevich: The Entertainment
Software Association and Video Software Dealers Association filed a lawsuit on
July 25, 2005, seeking to enjoin enforcement of a new Illinois law limiting the sale and rental of violent computer and video games to minors. In addition, retailers would be directed to post in-store signs informing customers about the Entertainment Software Rating Board’s rating system everywhere games are displayed, at the points of sale, and at information desks. Violations of the act would have been classified as criminal offenses.
The district court permanently enjoined enforcement of the law in December

2005 and the Illinois attorney general appealed portions of the decision to the Seventh Circuit Court of Appeals. FTRF joined other members of the Media
Coalition in filing an amicus curiae brief in support of the plaintiffs on
April 7, 2006.
10. Yahoo! v. La Ligue Contre Le Racisme et L’Antisemitisme (LICRA): FTRF submitted an amicus brief in support of this legal action seeking a declaratory judgment to bar enforcement of a French judgment in the United States. A
District Court in California ruled in favor of ruled in favor of Yahoo!, but a three-judge panel of the Ninth Circuit Court of Appeals reversed, holding that the District Court lacked jurisdiction over the French defendants. Yahoo! subsequently petitioned the Ninth Circuit for a rehearing en banc, and FTRF joined an amicus brief supporting Yahoo!’s petition. The Ninth Circuit granted the petition and following oral argument, upheld the decision dismissing the suit. On April 10, 2006, a petition for certiorari was filed with the U.S.
Supreme Court. A decision is pending.
11. Lyle v. Warner Brothers Television Productions: The plaintiff, a writers’ assistant on the television program Friends, claimed that sexual jokes and banter that occurred during writers’ meetings created a “hostile work environment,” even though none of the speech was directed at her and were undertaken in the course of writing scripts for the show. The California intermediate appellate court agreed, saying that such banter during the creative process can support a “hostile work environment” claim unless it is protected as “necessary” to the creative process. FTRF joined in an amicus brief with other members of the Media Coalition supporting the defendants’ appeal in the California Supreme Court. On April 20, 2006, the California
Supreme Court ruled in favor of the defendants, finding that the writers’ comments were not sufficiently severe or pervasive to create a hostile work environment.
12. American Historical Ass’n v. National Archives and Records Administration:
This is a challenge to the legality of Executive Order No. 13233, signed into law by President Bush on November 1, 2001. The order claims to establish procedures for implementing the Presidential Records Act of 1978 (PRA) but instead imposes restrictions that threaten the timely release of presidential and vice-presidential records in accordance with the PRA. Plaintiffs include the American Historical Association, the National Security Archives, Public
Citizen, and the Reporters Committee for Freedom of the Press. FTRF participated in this case earlier as amicus curiae ; an amended complaint was filed November 30, 2005, and FTRF and fellow amici filed a revised version of the amicus brief the same day. The plaintiffs renewed their motion for summary judgment in January. The motion is pending before the court.
13. Forensic Advisors, Inc. v. Matrixx Initiatives, Inc.: Forensic Advisors,
Inc., a publisher of a newsletter on stocks and investing that had published reports critical of Matrixx, Inc., sought to quash subpoenas served by Matrixx seeking broad discovery of publisher Timothy Mulligan’s sources and notes and demanded the names of the newsletter’s subscribers. FTRF has joined in an amicus brief authored by Public Citizen and filed with the Maryland Court of
Special Appeals that advances arguments supporting Mulligan’s claim that the subpoena violates his subscribers’ First Amendment right to read and access information anonymously. Oral arguments are pending before the Maryland Court of Special Appeals.
In addition, the following case was presented for the first time at this meeting:

1. Beard v. Banks: The Freedom to Read Foundation joined with the Association of American Publishers, the American Booksellers’ Foundation for Free
Expression, the Publishers’ Marketing Association, the Reporters’ Committee for Freedom of the Press, and the Prison Legal News to file an amicus curiae brief with the U.S. Supreme Court in support of Ronald Banks, a prisoner challenging the Pennsylvania Department of Corrections’ blanket policy barring certain long-term prisoners’ access to all newspapers, magazines, and books.
The brief argues that the policy impermissibly infringes on the First
Amendment right of the prisoners to receive information and the First
Amendment right of publishers and writers to freely disseminate their works.
Other business:
A decision on the Federal Communications Commission Reconsideration Petition, first heard in 2004, is still pending.
Federal legislation that is being tracked includes:
1. The Deleting Online Predators Act (DOPA), H.R. 5319, would extend the
Children’s Internet Protection Act (CIPA) to commercial social networking Web sites, defined as “commercial Web sites that let users create Web pages or profiles or offer communication with other users via forums, chat rooms, email or instant messaging.” If passed, the bill would block users from accessing broad categories of Web content, including sites like MySpace, blogs, instant messaging, wikis, and online email.
2. Net Neutrality: Several Congressional representatives have introduced legislation to defend Internet neutrality after several large telecommunications companies proposed creating a two-tiered Internet, providing preferential treatment to Internet content providers paying an additional fee to ensure speedier delivery or improved quality of service.
Among these bills are S.2360, sponsored by Sen. Ron Wyden (D-OR); S.2917, sponsored by Sen. Olympia Snowe (R-ME) and Sen. Bryan Dorgan (D-ND); H.R.
5417, sponsored by Rep. James Sensenbrenner (R-WI) and Rep. John Conyers (D-
MI); H.R. 5273, sponsored by Rep. Ed Markey (D-MA); H.R. 5252, sponsored by
Rep. Joe Barton (R-TX) and Rep. Bobby Rush (D-IL); and S.2686, sponsored by
Sen. Ted Stevens (R-AL) and Senator Inouye (D-HI). The FTRF favors the bill introduced by Sens. Snowe and Dorgan.
A review of state legislation was presented. Of the __ included, 15 dealt with video games. Other major topics include filters, the PATRIOT Act, and “harmful to minors” legislation.
As of 2006 May 31, the FTRF had $530,889 in its endowment and an operating account balance of $51,341. Membership was 75 higher than at this time last year. No grants were approved at this meeting.
Following the conclusion of the meeting, the new Board of Directors organized itself for the 2006-07 year. Re-elected were Candace Morgan, Chris Finan,
Francis J. Buckley, and Deborah L. Jacobs; newly elected was Burton Joseph.
John W. Berry was re-elected president, Candace Morgan was re-elected vicepresident, and Deborah L. Jacobs was re-elected treasurer.
Edward Swanson
Representative from the International Relations Round Table