FREEDOM TO READ FOUNDATION NEWS
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www.ftrf.org ● ftrf@ala.org ● www.ftrf.org/ftrfnews.html
Judith F. Krug, Executive Director
Vol. 28, No. 1
Gordon M. Conable, President
April 2003
CIPA: A Report from the Court
by Jonathan Bloom, Esq.
On March 5, the U.S. Supreme Court heard
arguments in United States v. American Library
Association, et al., the challenge spearheaded by
ALA, the Freedom to Read Foundation, the
ACLU, and others to the Children’s Internet
Protection Act (CIPA). CIPA mandates that
public libraries install filters on all computers
with Internet access as a condition of receiving
certain federal funding. Paul Smith of Jenner &
Block argued on behalf of the plaintiffs, and
Solicitor General Theodore B. Olson represented
the government.
The questions raised by the Court suggest it is
sharply divided over the case—the liberal
Justices appearing sympathetic to the ALA’s
position, the conservative Justices appearing
hostile. Justice Souter clearly disagreed with the
government’s argument that mandatory filtering
is no different than a decision not to acquire a
particular book. Justices Stevens and Kennedy
also suggested that, in their view, the analogy
between filtering and selection does not hold.
In contrast, Justice Scalia told Mr. Smith he did
not see why Congress could not require that
computers purchased with government funds
restrict access to pornographic material. Justice
O’Connor appeared inclined toward deference to
Congress when she questioned Mr. Smith’s
assertion that libraries create public fora when
they offer Internet access, while Chief Justice
Rehnquist pressed Mr. Smith to concede that if
CIPA were unconstitutional, decisions to filter
made at the local level would be as well. (That
point—that striking down CIPA would also in-
The FTRF team at the US Supreme Court. From left: Mitch
Freedman (ALA President); Jenner & Block Attorneys
Daniel Mach, Katherine A. Fallow, Theresa Chmara
(FTRF General Counsel) and Paul Smith; Judith F. Krug
(FTRF Executive Director); Nancy Kranich (ALA Intellectual Freedom Committee Chair); and Gordon M. Conable
(FTRF President). (Photo by Deborah Caldwell-Stone.)
validate local laws requiring library filtering—is
the proverbial “elephant in the room” in this
case.)
Justice Breyer, a First Amendment “wild card”
who may hold a crucial swing vote, posed some
difficult questions to Mr. Smith, such as whether
Internet access in public school libraries was also
a public forum (Mr. Smith said it was), but he
appeared satisfied with the responses.
Based on the argument, the safest prediction is
that it will be a close vote.
Jonathan Bloom is an attorney with Weil, Gotshal &
Manges and serves as the First Amendment counsel to
the Freedom to Read Committee of the Association of
American Publishers.
Freedom to Read Foundation News
Vol. 28, No. 1
Page 2
Rep. Sanders introduces bill
to “fix” Patriot Act
two half-human, half-worm gunfighters whose
physical appearance resembled that of rock
musicians Johnny and Edgar Winter.
Congressman Bernie Sanders (I–Vermont) has
introduced legislation in the U.S. House of
Representatives to exempt libraries and bookstores from the surveillance provisions of the
controversial USA PATRIOT Act. Section 215
of the Patriot Act allows federal investigators to
bypass traditional courts when seeking confidential records relating to the reading and use habits
of individual library and bookstore patrons. As
we go to press, the “Freedom to Read Protection
Act” has 58 sponsors in the House.
The Winter Brothers sued DC Comics and the
comics’ authors, claiming defamation, invasion
of privacy, misappropriation of the right of
publicity, negligence, and intentional infliction of
emotional distress. The brothers claimed that the
use of the name “Autumn Brothers,” as well as
the fictional characters’ distinctive features resembling the musicians’ own long white hair and
albino features, indicated to the audience that the
worm-like gunfighters were actually the Winter
Brothers. They further claimed that the depiction
falsely portrayed them as “vile, depraved, stupid,
cowardly, sub-human individuals who engage in
wanton acts of violence, murder and bestiality for
pleasure and who should be killed.”
Simultaneously, the Foundation is in the midst of
a lawsuit to gain information about how the
Patriot Act is being implemented in libraries and
bookstores. The Department of Justice responded
to a November 26 judge’s order by releasing
some information, but not enough to fulfill the
request made under the Freedom of Information
Act. On March 21, the ACLU, Electronic
Privacy Information Center, FTRF and others
filed a motion for summary judgment in the case.
New Litigation
Foundation joins amicus in
DC Comics case
The Freedom to Read Foundation has joined with
the Association of American Publishers, the
Motion Picture Association of America and the
Authors’ Guild to file an amicus brief in Winter
v. DC Comics, a lawsuit currently pending before
the California Supreme Court.
The lawsuit resulted from the publication of the
graphic novel series Jonah Hex, a series of tales
about the adventures of a Western gunslinger and
bounty hunter published by DC Comics. Among
the series’ characters were the Autumn Brothers,
The California Court of Appeals struck down
most of the Winters Brothers’ claims, ruling that
the comic books were so fanciful that no
reasonable person could understand the comics as
stating actual facts about the Winter brothers.
However, the court allowed the claim for
misappropriation of the right of publicity to
stand, ruling that the comics’ use of the Winters’
likenesses could be found to violate the brothers’
publicity rights under California law. DC Comics
and the authors have appealed this decision to the
California Supreme Court.
The amicus brief filed by FTRF supports DC
Comics, arguing that the Court of Appeals’
application of the “right of publicity” to
traditionally protected work like parody and
fiction is an unconstitutional form of content
discrimination that permits public figures to
control whether or how their images are used. It
asks the court to rule in favor of DC Comics and
to clarify and affirm that works of fiction and
other traditionally protected works are entitled to
the full protection of the First Amendment.
All briefs were filed on March 21. The California
Supreme Court will hear oral argument April 1.
Freedom to Read Foundation News
Vol. 28, No. 1
FTRF joins Harry Potter
brief in Arkansas
After the Cedarville, Arkansas, School Board
overruled the Library Committee’s unanimous
decision to keep the Harry Potter series on
library shelves, local parents took action. Billy
Ray and Mary Nell Counts filed a federal lawsuit
on June 3, 2002, contending that the board’s
decision—removing the books from the shelves
and mandating parental permission to access the
books—violated Cedarville students’ First
Amendment right to receive information.
As reported by the Fort Smith, Arkansas, Times
Record, the school board restricted the book
based on a parent’s complaint that it teaches
children that parents, teachers, and rules are
stupid and should be ignored and “that there are
‘good witches’ and ‘good magic.’”
The Freedom to Read Foundation joined an
amicus brief in support of the Counts family, in
conjunction with author Judy Blume, the
American Booksellers Foundation for Free Expression, the Association of American Publishers,
and several other free speech organizations.
Theresa Chmara, FTRF General Counsel, noted
that while school boards have broad discretion to
determine school curriculum and what texts will
be used, they may not restrict access to books in a
school library simply because they dislike ideas
contained in those books. “They are removing
these books because they don’t like them, and
they haven’t even read them,” she said.
Nike v. Kasky
The Freedom to Read Foundation joined an
amicus brief in support of Nike in the U.S.
Supreme Court case Nike v. Kasky. The state of
California ruled in 2002 that a private citizen
could sue the company for false advertising based
on its statements made through press releases, its
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Web site, and other publications, defending itself
against claims of profiting from sweatshops. The
company claims its statements served as political
speech while the plaintiffs argue that they were
made “for the commercial purpose of selling
shoes.” The amicus argues that the California
statute impermissibly hinders the ability of
companies to participate fully in political and
public debates affecting them.
Updates
Third Circuit strikes down
COPA. Again.
On March 6, the Third Circuit Court of Appeals
for the second time struck down the Children’s
Online Protection Act as unconstitutional, finding
it vague and overbroad for a number of reasons.
The case is now likely to return to the U.S.
Supreme Court. A more detailed discussion of
the suit can be found on page six, in the FTRF
Report to the ALA Council.
Minneapolis library
workers file harassment suit
In a case that the Foundation has been following
closely, a group of employees at the Minneapolis
Public Library filed a federal suit against the
library on March 24 seeking more than $450,000
each. They claim that exposure to sexually
explicit images on library computers created a
hostile work environment, in part because many
computer users were disruptive and threatening.
The twelve female employees had previously
sought support from the U.S. Department of
Justice for their case. After a 19-month review,
the Department declined to prosecute the case on
their behalf, instead issuing them a standard
“right to sue” letter.
Freedom to Read Foundation News
Vol. 28, No. 1
Page 4
French court dismisses
latest Yahoo! case
Correction: South Carolina
Internet case
On February 11, a French court threw out a case
that accused Yahoo! of “justifying war crimes” in
contravention of French law by allowing Nazi
paraphernalia to be auctioned on its Web site.
This was the third significant legal action
regarding Yahoo!’s auction pages. The first case,
in French court, resulted in an order that Yahoo!
must block French Internet users from those
particular sites. In the second case, Yahoo! sued
in U.S. federal court to block the French decision,
arguing that a foreign court could not regulate the
freedom of expression in this country. (Yahoo!
has since banned Nazi memorabilia from its
auction sites.) The most recent suit was for one
euro in damages.
In the last issue of Freedom to Read Foundation
NEWS, it was reported that the Foundation was a
plaintiff in the case of Southeast Booksellers v.
Condon (now Southeast Booksellers v.
McMaster), which challenges an amendment to
the South Carolina “harmful to minors” law
related to the communication of visual material
on the Internet. The Foundation is not a plaintiff,
but is monitoring the case closely and supports
the plaintiffs.
In the case, the state Attorney General’s office
filed a motion to dismiss on the grounds of lack
of standing, abstention, failure to state a claim
and lack of jurisdiction. Plaintiffs submitted a
reply to the motion on March 17.
An update on the U.S. case can be found on page
six, in the FTRF Report to the ALA Council.
Other News
Eighth Circuit hears video
game arguments
On March 12, the Eighth Circuit Court of
Appeals heard arguments in IDSA v. St. Louis
County, Mo., a challenge to the county ordinance
making it unlawful for someone to knowingly
sell, rent, make available or permit the free play
of video games with violent content to minors
without the consent of a parent or guardian. The
law was upheld by a district court in April 2002.
At the hearing, the Interactive Digital Software
Association claimed that video games were
protected by the First Amendment because they
feature art, music, and performance. The county
argued that rights of parents and the duty to
protect children meant the county “shouldn’t
have to wait to develop a record of harm”; that is,
proof that playing these video games is an
incitement to violence. The Foundation has filed
an amicus brief in this case in favor of IDSA.
State legislation roundup
The ALA Office for Intellectual Freedom (OIF)
tracks state-level legislation that impacts on our
First Amendment rights to speak and read. As of
March 2003, the office is tracking 56 bills in 24
states. Most prevalent are bills requiring public
and school libraries to filter Internet access for
their users. Many of these bills are modeled after
the federal Children’s Internet Protection Act and
tie state funding of libraries to mandated Internet
filters.
In addition to legislation directly affecting
libraries, legislators across the country have
proposed laws that require Internet service
providers to remove or disable access to child
pornography on demand; label and restrict access
to movies, music, and video games for minors;
and criminalize the dissemination of materials
that are harmful to minors over the Internet.
Freedom to Read Foundation News
Vol. 28, No. 1
Page 5
If you would like more information on these bills,
or have information to share, please contact
Beverley Becker at bbecker@ala.org or (800)
545-2433 x4221.
As President of the Freedom to Read Foundation,
I am pleased to report on the Foundation’s
activities since the Annual Meeting:
Cooper wins Downs award
American Library Association v. United
States: As you know, our lawsuit challenging the
Children’s Internet Protection Act (CIPA)
resulted in a unanimous decision by the special
three-judge panel that the CIPA statute violates
the First Amendment and is facially unconstitutional. As anticipated, the government asked the
U.S. Supreme Court to review the decision,
written by Chief Judge Becker of the Third
Circuit Court of Appeals on behalf of himself and
U.S. District Judges Fullam and Bartle.
Foundation Trustee Ginnie Cooper was presented
with one of two Robert B. Downs Intellectual
Freedom Awards at the 2003 ALA Midwinter
Meeting. The award is presented annually by the
Graduate School of Library and Information
Science (GSLIS) of the University of Illinois at
Champaign-Urbana. Cooper and the Multnomah
County Public Library won for their efforts as
plaintiffs in the ACLU’s suit against the Children’s Internet Protection Act. She is pictured
below (center) with Linda Smith (left), Interim
GLSIS Dean, and Elizabeth Neel (right), Greenwood Publishing Group. (Photo by Terry Weech.)
CIPA LITIGATION
On November 12, 2002, the Supreme Court
granted the government’s petition, and ordered
the parties to file briefs. The government’s brief
was filed on January 10, 2003. Counsel for ALA
and the Foundation are preparing a reply to be
filed on February 10. Oral arguments will be
heard on March 5.
The permanent injunction forbidding the FCC
and LSTA from withholding funds from public
libraries that choose not to install filters remains
in place during the appeal. Public libraries, thus,
are not required to install filters on their
computers to receive funds from either agency.
REPORT TO COUNCIL
2003 Midwinter Meeting
Philadelphia, PA
The Freedom to Read Foundation reports to the
American Library Association Council at each
Annual Conference and Midwinter Meeting. The
following is the report presented at the 2003
Midwinter Meeting in Philadelphia.
The Foundation is still actively participating in
raising funds for the CIPA lawsuit, and to date
has donated $200,000 to the effort. We urge all
ALA members to assist in raising the necessary
funds for this most important litigation. To give
online and for more information, visit ALA’s
CIPA Web site at www.ala.org/cipa.
PRIVACY
Privacy is an increasingly important issue that the
Freedom to Read Foundation has been attending
to in recent months. The Foundation is pursuing
litigation and tracking legislation addressing
Freedom to Read Foundation News
privacy and freedom from
government surveillance.
Vol. 28, No. 1
unreasonable
ACLU v. Department of Justice, filed on
October 24, 2002, is a Freedom of Information
Act lawsuit. FTRF is one of four plaintiffs
seeking a court order requiring the Department of
Justice (DOJ) to disclose aggregate statistical
data and other policy information about the
Department’s implementation of the USA
PATRIOT Act, including those portions which
permit the FBI to obtain library and bookstore
records without showing probable cause. On
November 26, 2002, the court ordered the
Department of Justice to disclose the relevant
records it would turn over to the plaintiffs by
January 15, 2003. The DOJ turned over 200
heavily redacted pages on January 16. Further
steps are now under consideration.
President Bush signed H.R. 5005, The
Homeland Security Act of 2002, on November
25, 2002. Among its many provisions is a statute
allowing Internet service providers or any other
provider of electronic communications to
disclose the contents of an electronic
communication to any federal, state, or local
government entity if the provider believes “in
good faith” that an emergency exists that poses a
threat of death or physical injury. (This expands
a provision of the PATRIOT Act that merely
permitted disclosure to federal law enforcement
agencies.) In addition, the new law allows the
DOJ to install a “trap and trace” wiretap without
a court order if there is an immediate threat to a
national security interest or an ongoing attack
against a protected computer or computer system.
LITIGATION
The Foundation continues to enjoy success in its
defense of our right to read and receive information freely. In each of the cases below, we have
joined amicus briefs supporting that right:
Interactive Digital Software Association v. St.
Louis County: This lawsuit challenges a St.
Page 6
Louis, Mo., ordinance forbidding the sale or
rental of violent video games to minors. Last
April, a federal District Court upheld the ban,
ruling that video games are not protected
expression under the First Amendment, directly
contradicting the Seventh Circuit Court of
Appeals decision in AAMA v. Kendrick, which
overturned a similar ordinance passed by the city
of Indianapolis. The plaintiffs appealed the
District Court decision to the Eighth Circuit
Court of Appeals, and the Foundation joined an
amicus brief opposing the ban. The parties are
now waiting for the Eighth Circuit to schedule
oral arguments.
The Ninth Circuit Court of Appeals heard oral
arguments last month in Yahoo! v. La Ligue
Contre Le Racisme et L’Antisemitisme, after
defendants La Ligue Contre Le Racisme et
L’Antisemitisme and the French Union of Jewish
Students appealed the District Court’s refusal to
enforce a French court’s order imposing fines on
Yahoo! for hosting pages advertising Nazi and
racist memorabilia. The District Court ruled that
no other nation’s law, no matter how valid in that
nation, could serve as a basis for quashing free
speech in the United States. FTRF supported
Yahoo! at the district court level, and joined in
another amicus brief supporting Yahoo!’s position on appeal. A decision is expected shortly.
Ashcroft v. American Civil Liberties Union
(formerly ACLU v. Reno) (COPA): This lawsuit
seeks to overturn the Children’s Online Protection Act (COPA)—also known as CDA II—
which restricts online materials deemed “harmful
to minors.” In June 2000, the Third Circuit Court
of Appeals barred enforcement of COPA, finding
the law’s reliance on community standards to
identify material that is harmful to minors in
violation of the First Amendment. On May 13,
2002, the United States Supreme Court reversed
that decision, upholding the law on the narrow
grounds that the law’s reliance on community
standards did not by itself render COPA
unconstitutional. Because the Court believed the
Freedom to Read Foundation News
Vol. 28, No. 1
Third Circuit did not sufficiently address all the
First Amendment issues raised by COPA’s
restrictions on Internet speech, the Supreme
Court returned the lawsuit to the Third Circuit for
a fuller consideration of those issues, while
permitting the injunction barring enforcement of
the law to remain in place.
In August 2002, the parties again briefed the case
for the Third Circuit, and the Foundation joined
the Center for Democracy and Technology and
filed a brief asking the court to find COPA
unconstitutional for a second time. Oral
arguments were heard on October 29, 2002. The
parties are awaiting a decision from the court.
STATE INTERNET CONTENT LAWS
The Foundation continues to participate in
lawsuits challenging state laws that criminalize
the distribution of materials deemed “harmful to
minors” on the Internet. The newest lawsuit,
Southeast Booksellers v. Condon, challenges an
amendment to the South Carolina “harmful to
minors” law that sweeps in visual matter
communicated via the Internet. The lawsuit was
filed on November 6, 2002. The plaintiffs are
now preparing to file a motion for summary
judgment.
Page 7
PSINet v. Chapman: Attorneys for FTRF and
other plaintiffs have filed a brief with the Fourth
Circuit Court of Appeals, urging the court to
uphold the U.S. District Court for the Western
District of Virginia’s permanent injunction
forbidding enforcement of Virginia’s Internet
content law. The parties argued the case before
that court on October 28, 2002. We are now
waiting for a decision from the court.
ACLU v. Napolitano: On February 19, 2002, the
U.S. District Court in Arizona struck down
Arizona’s new Internet content law after FTRF
and several other plaintiffs challenged the constitutionality of Arizona’s revised Internet content
law. The court has now issued a permanent
injunction preventing enforcement of the law.
ABFFE v. Dean: Vermont legislators’ attempt
to obviate the lawsuit filed by FTRF and other
plaintiffs by rewriting and amending their
Internet “harmful to minors” statute has failed.
On April 19, 2002, the U.S. District Court in
Brattleboro, Vt., declared the law unconstitutional and entered a permanent injunction barring
its enforcement. The State of Vermont appealed
the decision to the Second Circuit Court of
Appeals, which will hear oral arguments on
February 6, 2003.
In other such cases:
Bookfriends, Inc. v. Taft: Ohio has amended its
“harmful to minors” law in response to the
lawsuit filed by FTRF and several other plaintiffs
last May. The legislature’s action follows the
issuance of a preliminary injunction last August
forbidding the State of Ohio from enforcing its
newly passed law that defined “harmful to
juveniles” as any material that included violence,
foul words, cruelty, and glorification of crime.
The state had appealed that order to the Sixth
Circuit Court of Appeals. The parties expect the
Sixth Circuit to return the case to the trial court in
light of the legislature’s action. FTRF and the
plaintiffs will continue to challenge the law’s
Internet provisions in the trial court.
FEDERAL LEGISLATION
Finally, a piece of legislation we were tracking
has passed into law. On November 15, 2002,
Congress approved H.R. 3833, “The Dot Kids
Implementation and Efficiency Act of 2002,” a
law that creates a “dot.kids” Internet subdomain
under the top-level .us domain. The new
subdomain will be operated by the private
company Neustar and will exclude all material
deemed “harmful to minors” and prohibit any
links to material outside the .kids.us domain.
Respectfully submitted,
Gordon Conable
President, Freedom to Read Foundation
Freedom to Read Foundation News
Vol. 28, No. 1
Page 8
Scenes from the CIPA Hearing (Photos by Deborah Caldwell-Stone)
The line forms to hear the historic argument.
The media watches the post-hearing press conferences.
From left: Keith Michael Fiels (ALA Executive Director),
Candace Morgan (Past FTRF President), Gordon M.
Conable (FTRF President), Mitch Freedman (ALA
President), Judith F. Krug (FTRF Executive Director
and ALA Office for Intellectual Freedom Director),
Nancy Kranich (IFC Chair).
FTRF General Counsel Theresa Chmara discusses the
hearing with Gordon Conable. Paul Smith, who argued
the case, is in the background.
Judith Krug speaks at the post-hearing press conference,
as friends look on.