FREEDOM TO READ FOUNDATION NEWS
50 EAST HURON STREET, CHICAGO, ILLINOIS 60611 PHONE (312) 280-4226
Judith F. Krug, Executive Director
Vol. 23, No. 1
Internet Filtering
Challenged in Court
A group of Loudoun County, Virginia, parents
and other concerned citizens has brought a
federal lawsuit challenging what is probably the
most restrictive public library Internet use
policy in the nation. As late breaking events
unfold, this first-of-its-kind constitutional
litigation is at press time the subject of two
motions by the defendants to dismiss. Also, a
motion has been filed by the American Civil
Liberties Union to allow various Internet
publishers to intervene and press their own
claims against the defendants.
Late last year, the Loudoun County library
board imposed a self-styled “Policy on Internet
Sexual Harassment.” The policy, designed to
shield women and children from a “sexually
hostile
environment,”
unconditionally
mandates for adult library users as well as
children use of a particular brand of
commercial filtering software produced by a
West Coast corporation. The software is
marketed to block “hard-core pornography
and other offensive sites on the Internet.” In
addition to the Internet use policy, the library
board ordered each of the six Loudoun
County branch libraries to place their Internetaccess computers in full view of staff and
authorized librarians to expel anyone caught
trying to access prohibited material.
On December 23, 1997, Mainstream
Loudoun, the plaintiff group, filed a forty-seven
page complaint in the United States District
June Pinnell-Stephens, President
1998
Court for the Eastern District of Virginia
asserting that the library Internet use policy and
filtering software “improperly limit adults to
even less information than is fit for children,
block access to valuable, educational, and
constitutionally protected information” that has
nothing to do with sexually explicit materials,
fail to promote purported objectives, and
“ignore readily available less restrictive
alternatives.”
Calling the action Mainstream Loudoun v.
Board of Trustees of the Loudoun County
Public Library, the plaintiff group complained
that the library board’s worry about sexual
harassment is “far removed from any legitimate
concern” and the chosen means of
implementation are counterproductive. The
public library board’s “conduct in adopting
these Internet censorship restrictions has
injured and continues to injure” the plaintiff
group “in violation of the First and Fourteenth
Amendments.” Mainstream Loudoun seeks a
judicial declaration as to the unconstitutionality
of the Internet use policy and an injunction to
prevent the library board from enforcing it.
The complaint detailed at length how each
member of the plaintiff group depends upon
free and open access to materials at the public
library and is directly and substantially harmed
by the Internet use policy. The lawsuit turns
upon the filtering software’s over-inclusive
blocking -- not only of sites that may have a
sexual content, strong language, or
unconventional ideas considered harmful or
offensive by some people -- but also of sites
Freedom to Read Foundation News
having no controversial content whatsoever.
Mainstream Loudoun cited an article
published on October 6, 1997, at
<http://www.spectacle.org/cs/xstop.html> by
Jonathan Wallace, attorney and co-author of
Sex, Laws, and Cyberspace, that indicates the
particular software mandated in Loudoun
County blocks numerous websites containing
typical public library reference information.
According to Wallace, the version of the
filtering software distributed in the middle of
last year blocked websites of the Religious
Society of Friends (Quakers) and the American
Association of University Women, the Banned
Books page at Carnegie Mellon University, the
AIDS Quilt Site, the Fileroom Project website
database on censorship, and even the site of
the conservative Heritage Foundation.
In response to Wallace’s article, as well as
negative publicity in Loudoun County about
the performance of the filtering software in
question, the distributor took steps to unblock
various sites. According to the Mainstream
Loudoun complaint, even after a number of
sites were unblocked, the library filtering
software continued to block innocent sites,
including those of the Yale University graduate
school in Biology and a Massachusetts Institute
of Technology course entitled “Ethics and Law
on the Electronic Frontier,” the Zero
Population Growth site, the Safer Sex
education site, and a Mormon Church website
on the prevention of masturbation. Although
the site for the American Association of
University Women was removed from the
blocked list, the one for the American
Association of University Women in Maryland
allegedly continued to be censored.
The lawsuit addresses fundamental questions
about First Amendment constraints upon
public library Internet use policies. Given the
allegations of the Mainstream Loudoun
Volume 23, Number 1
Page 2
complaint, the court may confront one of the
library profession’s profoundly basic questions
-- whether the United States Constitution can
ever countenance deliberate actions by a public
library directly depriving a library user of freely
available constitutionally protected materials.
Prior to the Loudoun County library board’s
action adopting the “Policy on Internet Sexual
Harassment,” Mainstream Loudoun proposed
a policy that would have required minors to
obtain written parental permission before being
allowed to use library computers for Internet
access without filtering software. It also would
have allowed adults and parents to decide for
themselves and their children whether to
choose filtered or unfiltered Internet access.
These proposals vary from the American
Library Association’s position set forth in the
Resolution on the Use of Filtering Software in
Libraries and the Statement on Library Use of
Filtering Software (Both available at
<http://www.ala.org/oif.html#ptftr>).
Will Mainstream Loudoun remain resolute in
its effort to uphold fundamental First
Amendment freedoms? This and other
questions will be answered as events unfold.
Additional information about Mainstream
Loudoun and a complete copy of the
complaint
may
be
obtained
at
<http://www.loudoun.net/mainstream>.
Barnes & Noble Indicted
in Tennessee
In November of last year, the Barnes & Noble
bookstore chain was indicted on misdemeanor
charges in a Tennessee county court for
violating a state statute regulating the display
of materials “harmful to minors.” The chain’s
local store in Brentwood, a suburb of
Nashville, has been targeted by antipornography groups for protest activities over
the store’s selling of art photography books
that feature photographs of nude children.
Freedom to Read Foundation News
Two books by San Francisco photographer,
Jock Sturges -- The Last Day of Summer and
Radiant Identities -- and one book by French
photographer, David Hamilton -- The Age of
Innocence -- are involved. Art critics have
given the work of both photographers
substantial recognition as stylistically
innovative.
The indictment follows a vigorous national
campaign by various Christian organizations,
including that of Randall Terry, who is best
known for Operation Rescue anti-abortion
protest activities. At the Barnes & Noble in
Brentwood, protesters reportedly bought a
copy of one of the challenged books to
publicly shred the pages. This follows a
pattern of mutilation and destruction of the
books in other parts of the country.
The Tennessee statute in question requires
material “harmful to minors” to be placed in a
special “binder rack” that conceals
objectionable content and the lower two-thirds
of the cover. Alternatively, such material
must be shelved at least five and a half feet
from the floor or otherwise kept in specified
ways from minors’ view. Material “harmful
to minors” is defined to include
representations of nudity or sexual conduct,
where the matter appeals “predominantly to
the prurient, shameful or morbid interests of
minors”; is “patently offensive” to “standards
in the adult community” of what is “suitable
for minors”; and “lacks serious literary,
artistic, political or scientific values for
minors.”
Barnes & Noble, which faces a maximum
penalty of $50 on each count, has pleaded not
guilty. The criminal proceedings are expected
to go forward early this year.
Volume 23, Number 1
Page 3
A Win in The Tin Drum
Round One
On December 24, 1997, a federal judge ruled
that police in Oklahoma City acted
unconstitutionally in seizing copies of the
Oscar-winning film, The Tin Drum, from
libraries, video stores, and a private home last
June. Judge Ralph Thompson of the Western
District of Oklahoma ordered police to return
the confiscated videos.
The Tin Drum controversy has surely become
one of the best-documented and most widely
publicized incidents of censorship in recent
memory. The latest ruling, litigation papers,
newspaper accounts, and a wide variety of
other documents relevant to the unfolding
events are available on the website maintained
by the Oklahoma Department of Libraries at
<http://www.state.ok.us/~odl/ifreedom.htm>.
National television news also has gotten into
the act; within days after Judge Thompson’s
decision, Dateline NBC aired the story. Of
course the Freedom to Read Foundation
NEWS brought readers up to date in Volume
22, Numbers 3-4.
Judge Thompson ruled on motions for beforetrial relief that came before him in Video
Software Dealers Association, Inc. v. City of
Oklahoma City. For purposes of determining
the legality of the police procedures used in
confiscating the videos, the court consolidated
the various separate lawsuits that had been
started over this incident. It also granted the
motion by the Oklahoma Department of
Libraries seeking permission to intervene as a
plaintiff -- a motion that grew out of efforts by
the Board of the Oklahoma Department of
Libraries to assure that various library issues
are addressed in the lawsuits.
Freedom to Read Foundation News
In a nine-page decision and order, Judge
Thompson cited Supreme Court precedent
condemning “prior restraint” by police.
“Expressive materials, including motion
pictures, are preemptively entitled to First
Amendment protection,” the judge wrote.
“Although obscene or pornographic material is
not protected by the First Amendment,
‘rigorous procedural safeguards’ must be
employed before expressive materials can be
seized as obscene.”
As stated in the introductory portion of Judge
Thompson’s decision, “constitutional law
requires that, before public officials” take
actions to remove a motion picture from public
access, “they must first provide the interested
parties an opportunity to present their
contentions, evidence and legal arguments for
consideration by a court.” There was no
dispute that the police had done no more than
follow police department custom in privately
obtaining an oral opinion from a state judge as
the basis for confiscating the videos. The
police actions were insufficient as “procedural
safeguards.”
Judge Thompson’s ruling leaves open the
question of whether The Tin Drum actually
violates the Oklahoma child pornography
statute. Several motions subsequently decided
on January 23, 1998, do not affect the ruling or
the merits of the case; a trial in this matter is
tentatively scheduled for June 8, 1998.
The URL for the full text of the decision is
<http://www.state.ok.us/~odl/fyi/jrtrule.htm>.
Soldiers Can’t Buy
Playboy at the PX
On November 21, 1997, the decision of the
district
court
in
General
Media
Communications, Inc. v. Perry, denouncing
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Page 4
the Military Honor and Decency Act of 1996
was reversed by the U.S. Court of Appeals for
the Second Circuit.
The appeal resulted in the decision in General
Media Communications, Inc. v. Cohen (a
caption change, since the defendant Perry is
no longer Secretary of Defense). The latest
decision lets stand the prohibition against
selling magazines like Playboy or renting
equivalent adult videos in “exchange” stores
on military bases and aboard naval ships. The
court of appeals accepted the premise that the
law, enacted in 1996, furthers its supposed
purpose to uphold honor in the military. It
rejected the analysis of the court below. (See
the Freedom to Read Foundation NEWS,
Volume 22, Numbers 1-2).
Decisions in Contrast
The thrust of the trial judge’s decision below
was this: “Citizens do not jettison their
constitutional rights simply by enlisting in the
armed forces” (an argument of General Media
Communications). The parry of the decision
on review might be said to be: Just because
you have a right to read Playboy, the
government doesn’t have to sell it to you (an
argument of Perry -- now Cohen).
In analyzing the case, however, a number of
things must be kept in mind. Not to be
overlooked is the significance of the split
decision of the three-judge panel of the U.S.
Court of Appeals for the Second Circuit. For
one, the majority found the law appropriately
bolstered military honor, professionalism, and
proper decorum. In contrast, the dissenting
opinion emphasized the Defense Department
never actually exercised its own professional
judgment concerning the military interest
involved in banning the sale or rental of adult
Freedom to Read Foundation News
materials. After all, press releases indicated
congressional supporters actually hoped the
Military Honor and Decency Act would
promote no less than honor, commitment, and
courage!
Writing for the majority of the court of
appeals, Judge Cabranes found that the PX is
a nonpublic forum, that the prohibition on
selling magazines and renting videos depicting
nudity “in a lascivious way” does not
discriminate among particular viewpoints, and
that the statute reasonably upholds core
military values.
Basic Forum Analysis
The court’s forum analysis is especially
significant in parsing the First Amendment
issues. Government property, the court noted,
falls into one of three broad categories: one,
the “traditional public forum,” which includes
public streets and parks, and other places
devoted to assembly and debate; two, the
“designated public forum,” a place not
traditionally open to assembly and debate, but
which the government has opened for use by
the public for expressive activity; and, three,
the “nonpublic forum,” which consists of all
remaining public property.
In the first two categories, the court stated,
“content-based regulations of speech are
subject to ‘the highest scrutiny,’ and are
permissible” only if narrowly drawn to
achieve a compelling governmental interest.
In the third category, a limitation on speech
“may be content-based” and “need only be
reasonable, as long as the regulation is not an
effort to suppress the speaker’s activity due to
disagreement with the speaker’s view.”
Nonpublic Forum
Volume 23, Number 1
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Judge Cabranes found that military property
does not become public in character unless the
government has abandoned any right to
exclude civilian traffic and any claim of
special interest in regulating expression. He
concluded that the government has not done
so in the case of the PX.
Isn’t a PX really acting only as a bookstore or
a newsstand and, therefore, a public forum,
since the government has granted access to
published materials, which traditionally enjoy
the highest free speech protection? No, the
court answered. As an historical matter, the
“government did not create military exchanges
for the purpose of providing a forum for
expressive activity.” The court reasoned that
the “mere fact that expressive materials are
among the wide variety of general
merchandise sold at the exchange does not
imply that the forum” is public “for First
Amendment purposes.”
Libraries -- which are given a different forum
analysis -- may be interested in Judge
Cabranes’ further observation on how military
“exchange” stores function. “Much like a
private sector retailer, the government” in the
case of a PX “identifies the products that it
will stock for resale, selecting from a universe
of merchandise that is far more extensive than
the shelves of an exchange can hold. It does
not offer to resell the merchandise of every
producer, or every ‘speaker,’ who seeks access
to those shelves.” According to the court, this
amounts to granting no more than limited
access to speakers.
No Viewpoint Discrimination
To the extent the PX is a nonpublic forum, the
government
may reasonably restrict
Freedom to Read Foundation News
expressive activity, so long as the restriction is
not based on disagreement with the speaker’s
view. Judge Cabranes rejected the plaintiffs’
argument that “lasciviousness” represents a
“specific premise” or “standpoint from which
a variety of subjects may be discussed or
considered.” The court found the restrictions
imposed by the Military Honor and Decency
Act on materials depicting nudity “in a
lascivious way” were, therefore, not
viewpoint-discriminatory.
Volume 23, Number 1
Page 6
libraries, Judge Parker, who dissented, argued
that the Military Honor and Decency Act is
viewpoint-discriminatory. He reasoned that
“sexually explicit” speech “may be regarded
as a category of speech.” To subdivide that
category into “depictions of nudity” and other
depictions, “is yet another division, one step
closer to viewpoint discrimination.” Banning
distribution of the further subcategory of those
“depictions of nudity” that are “lascivious”
amounts to regulating “a specific perspective”
or per force “a point of view.”
Reasonable Restrictions
Employing the same standard as the court
below, the court of appeals reached the
opposite conclusion about whether the
restrictions under the act were reasonable.
The court stated that the trial judge “erred by
not giving due credit to the singular
governmental interests in oversight of the
military, and to the reasonableness of the
measures selected to advance those interests”
in this case.
The court of appeals stated that it was “neither
free nor inclined to disregard” the asserted
goals of the act. The government argued that
“sale by the military of lascivious materials in
military exchanges risks sending a message
that the military approves of or endorses these
materials.” It further argued that “such
materials could tarnish ‘the military’s image
of honor, professionalism, and proper
decorum.’” The court found that the Military
Honor and Decency Act reflected a legitimate
governmental concern and was reasonable in
light of the purpose of the military “exchange”
forum.
Opinion of the Dissenting Judge
What may be especially interesting to
“Portrayals of nude men and women designed
to elicit a sexual response illustrate an idea,”
according to Judge Parker, “that lust or sexual
desire is good, that men and women are sexual
beings, or, if depicted in a submissive way,
that women or men are submissive objects for
humiliation or domination.” That idea is
distinguished by the Military Honor and
Decency Act from depictions of nude men and
women in a nonsubmissive way, not designed
to arouse. Concluding that the government’s
distinction between those depictions amounts
to viewpoint discrimination, Judge Parker
cited several precedents, including a Seventh
Circuit decision, affirmed by the Supreme
Court, striking down an ordinance prohibiting
trafficking
in
pornography,
where
“pornography” was defined in distinct
viewpoint-like terms as “expressive material
that depicts women as sexual objects, or as
enjoying or deserving humiliation.”
If recognized by a court, the rather difficult
abstractions involved in the dissenting judge’s
argument could have far reaching implications
for First Amendment jurisprudence.
Finally, Judge Parker differed with the
majority about the significance of Congress’
failure to make findings as to the goals of the
Freedom to Read Foundation News
legislation or even an actual statement of
purpose. “I do not doubt,” the dissenting
judge wrote, “that the government can
lawfully enact statutes that promote the
military’s image of honor, professionalism,
and proper decorum.” He questioned whether
those interests had motivated Congress in this
case. Post-hoc rationalizations offered by the
government were, Judge Parker argued,
insufficient to invoke the traditional deference
to Congress required of the judiciary in
matters involving regulation of the military.
Counsel has announced that the plaintiffs
intend to appeal the U.S. Court of Appeals
decision to the Supreme Court.
The full text of the majority opinion in
General Media Communications, Inc. v.
Cohen
is
available
at
<http://laws.findlaw.com/2nd/976029a.html>.
The
dissenting
opinion
is
at
<http://laws.findlaw.com/2nd/976029b.html>.
Hazelwood Extended to
University Publications
A federal Judge in Kentucky has ruled that the
college press is subject to the same restrictions
as high school papers. This is the first time a
court has applied the 1988 Supreme Court
decision in Hazelwood School District v.
Kuhlemeir to a college-level newspaper. The
Hazelwood decision said that a public high
school administration could censor the
contents of the school’s newspaper when that
paper is a part of the curriculum.
The case, Kincaid v. Gibson, arose when two
students sued Kentucky State University vicepresident of student affairs, Betty Gibson, for
abridging their First Amendment right of free
Volume 23, Number 1
Page 7
speech by withholding distribution of student
yearbooks, objecting to the content of the
school newspaper, and temporarily removing
the newspaper’s advisor when she refused to
censor the paper’s content. The University
denied censoring the newspaper, saying the
yearbook was confiscated because it was of
poor quality and did not represent life at the
university accurately. The yearbook remains
undistributed.
In his decision, Judge Joseph M. Hood said
that the university “was entitled to exercise
reasonable control over the yearbook” because
the Supreme Court had ruled that a yearbook
was not considered a “public forum” protected
by the First Amendment. “It was reasonable
for the administration to want the annual to
explain who the students were in the pictures - so that fifteen years from now, the students
could look back and remember, for example,
who the K.S.U. homecoming queen was.” He
continued, “Moreover, it was reasonable for
the administration to want the yearbook to
focus mainly on K.S.U.” Hood also ruled that
the students had failed to show “actual past or
future restraint, and thus any type of injury.”
Hood is the first jurist to apply Hazelwood to
a college paper. In the decade since the case
was decided, numerous courts have declined
to do so. Indeed, the Supreme Court, itself,
avoided the issue of the college press in its
decision: “We need not now decide whether
the same degree of deference [to censorship
by school officials] is appropriate with respect
to school sponsored expressive activities at
the college and university level.”
Mark Goodman, executive director of the
Student Press Law Center, called the court’s
decision troubling. “There are other schools
that have informally made this argument, and
Freedom to Read Foundation News
now they will feel stronger backed with a
court decision. This case is a threat to the
college media.”
The students plan to appeal the ruling.
Kentucky State University officials would not
comment on the decision.
The full text of the decision is available at
<http://www.splc.org/newsflashes/111497ksur
uling.html.>
Bruce Ennis Given 1997
Downs Award
Bruce J. Ennis was the recipient of last year’s
Robert B. Downs Intellectual Freedom Award,
which acknowledges individuals or groups who
have furthered the cause of intellectual
freedom, particularly as it impacts libraries and
information centers, and the dissemination of
ideas.
Ennis, a partner in the Washington, D.C.,
office of Jenner & Block, is a nationally
recognized expert on the First Amendment
and a long-standing advocate for libraries. He
is general counsel to the Freedom to Read
Foundation, as well as the American Library
Association and the American Booksellers
Association. He also was the lead attorney who
engineered the death blow to the
Communications Decency Act in American
Library Association v. U.S. Department of
Justice, consolidated with and decided under
the name of Reno v. American Civil Liberties
Union.
“The real credit for this award should go not to
me but to librarians,” wrote Ennis in a thank
you letter addressed to the Faculty of the
Graduate School of Library and Information
Science at the University of Illinois at Urbana-
Volume 23, Number 1
Page 8
Champaign, which gives the annual award.
“Librarians across the country were in the very
forefront of the challenge to the mis-named
Communications Decency Act. It was very
easy to do what I did; it was hard to do what so
many librarians did.”
Ceremonies were held at the American Library
Association’s Midwinter Meeting in New
Orleans.
Slate for 1998 Election
Announced
Thirteen candidates for the Freedom to Read
Foundation Board have been slated for the 1998
election by the nominating committee, composed
of Trustees Jane Robbins, Janet Vaill Day, and
Candace Morgan, Chair.
Trustees to fill five vacancies on the Board will be
chosen from the following list of candidates:
Gary Burnett,
Assistant Professor,
School of Information Studies,
Florida State University,
Tallahassee, Florida
Charles E. Beard,
Director of University Libraries,
State University West Georgia,
Sullivan Ingram Library,
Carrollton, Georgia
Carolyn Caywood,
Bayside Area Librarian,
Virginia Beach Public Library,
Virginia Beach, Virginia
Gordon M. Conable,
Director,
Monroe County Library System,
Monroe, Michigan
Gail Criswell,
Youth’s Services Consultant,
State Library of Louisiana,
Baton Rouge, Louisiana
Freedom to Read Foundation News
Charles Levendosky,
Editorial Page Editor,
Webmaster for the Star-Tribune
First Amendment Website,
Casper Star-Tribune,
Casper, Wyoming
Marcia Pally,
Assistant Professor,
New York University,
New York, New York
Molly Raphael,
Acting Director,
District of Columbia Public Library,
Washington, D.C.
Mary Redmond
Principle Librarian for Collection,
Acquisition and Processing,
New York State Library,
Albany, New York
Louise Robbins,
Associate Professor and Director,
School of Library and Information Studies,
University of Wisconsin-Madison,
Madison, Wisconsin
C. James Schmidt,
University Librarian,
San Jose State University, Clark Library,
San Jose, California
Harriet Selverstone,
Department Chair,
Norwalk High School Library Media Center,
Norwalk, Connecticut
Lee Shiflett,
Professor,
Louisiana State University,
Baton Rouge, Louisiana
According to Freedom to Read Foundation
election rules, at least two, and no more than three,
candidates must be nominated for each vacancy on
the Board.
NOMINATION BY PETITION
Persons who wish to nominate candidates by
petition should submit twenty-five (25) signatures
Volume 23, Number 1
Page 9
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 20, 1998.
Ballots will be mailed April 1 to all persons
holding paid memberships in the Foundation as of
that date.
Freedom to Read Foundation
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 by June PinnellStephens, Freedom to Read Foundation
President, at the 1998 Midwinter Meeting in
New Orleans, Louisiana.
Freedom to Read Foundation
Report to Council
Tuesday, January 13, 1998
As President of the Freedom to Read
Foundation, I am pleased to report on the
Foundation's activities at this Midwinter
Meeting. As usual, we have some good news
and some not-so-good news. First, the good
news.
As you are well aware, the Freedom to Read
Foundation was instrumental in securing the
triumphant Supreme Court decision affirming
free speech on the Internet in American
Library Association v. U.S. Department of
Justice, consolidated with and decided under
the name of Reno v. American Civil Liberties
Union. As you may know, when a party
prevails in a constitutional action against the
federal government, the winning party may
request reimbursement of legal expenses. Of
Freedom to Read Foundation News
Volume 23, Number 1
Page 10
course, not all expenses are reimbursed.
There are specific guidelines as to who can
recover costs, and formulas for the amounts to
be reimbursed. Nevertheless, I am delighted
to tell you that we have successfully negotiated
a settlement.
The Foundation has been invited to join First
Amendment defense groups in preparing the
Supreme Court brief.
In connection with the CDA effort, ALA and
the Freedom to Read Foundation were
honored to receive the Hugh M. Hefner
Award in Law for 1997. We shared the award
with the ACLU.
The August 12, 1997, decision of the U.S.
District Court for the Northern District of
California in Free Speech Coalition v. Reno
represents a significant setback for free speech
and libraries. The court upheld provisions of
the Child Pornography Prevention Act of 1996
that expand the definition of child pornography
and take it to a perilous new level. Prior to the
act in 1996, the law of the land was narrowly
tailored to prevent actual child abuse — to be
child pornography, materials had to involve use
of children in their creation. A new level of
restraint on speech is now imposed. The
definition of child pornography includes
images that merely appear to be the sexually
explicit conduct of a minor. Prohibited
images, judged by the viewer’s purely subjective
determination of what is depicted, may include
those generated through computer technology
or those of a youthful-looking adult. On the
plaintiffs’ motion for a summary disposition of
the case, the Freedom to Read Foundation
joined other First Amendment defense groups
in filing a brief amici curiae. Among other
things, the amici pointed out a Catch-22
circularity in the act that can force a distributor
— potentially a library — to shoulder the
formidable burden of proving that questioned
material involving an adult does not appear to
depict a minor.
[President Pinnell-Stephens then summarized
Video Software Dealers Association, Inc. v.
City of Oklahoma City, which is discussed in
depth beginning on page three. She noted in
the report that, in this action involving The Tin
Drum, the Freedom to Read Foundation
joined other First Amendment defense groups
in filing a brief amici curiae on the plaintiffs’
motion for the return of the videos.]
On November 26, 1997, the Supreme Court
agreed to review Finley v. National
Endowment for the Arts and rule on whether
Congress may impose a decency requirement
that would disallow federal arts funding such as
that given in the widely-publicized case of the
photograph of a crucifix immersed in urine.
The litigation involves important First
Amendment questions as to the vagueness of a
decency requirement and — because the issues
concern the scope of the overall discretion the
administration has in awarding arts grants —
could impact the responsibilities of libraries in
selecting materials and allocating exhibit
spaces.
The Freedom to Read Foundation did not join
in the brief amici curiae filed in the circuit
court of appeals below. Given the Supreme
Court's decision to review the case, we now
have another opportunity to advance
arguments favorable to libraries and librarians.
Unfortunately, that's the extent of the good
news this time. Now, the not-so-good news.
The Freedom to Read Foundation has
participated in the appeal of the decision to the
U.S. Court of Appeals for the Ninth Circuit,
where a decision is pending.
[President Pinnell-Stephens then summarized
General Media Communications, Inc. v.
Freedom to Read Foundation News
Cohen, which is analyzed beginning on page
four.]
The November 10, 1997, decision of the U.S.
Court of Appeals for the Fourth Circuit,
reversing the decision of the lower court in
Rice v. Paladin Enterprises, Inc., establishes a
harmful precedent holding publishers -- and
possibly even distributors such as libraries -liable for the acts of criminals who use
information in books and other publications to
commit crimes. The defendant Paladin Press
allegedly aided and abetted a triple murder in
publishing detailed instructions on how to
murder in a book, Hit Man: A Technical
Manual for Independent Contractors, used by
the convicted assassin. The district court
granted the defendant's motion for a summary
disposition of the case.
In order to ensure that the court looked at the
case in First Amendment terms, the publisher
admitted for purposes of the motion that it
intended criminals to use the book to commit
crimes. On the appeal of the district court's
decision, the Fourth Circuit was apparently
disquieted by the extreme position Paladin
took on its motion. It held that speech
tantamount to unlawful non-expressive conduct
does not enjoy constitutional protection.
Paladin plans to appeal this decision to the
Supreme Court. The Freedom to Read
Foundation intends to support the appeal to
fully vindicate fundamental free expression
rights.
In October, 1997, the Freedom to Read
Foundation joined an amicus brief filed by the
Media Coalition in the matter of Brad Pitt v.
Playgirl. In this case, the court entered an
injunction prohibiting Playgirl from distributing
its August, 1997, issue, which contained nude
photographs of Mr. Pitt. The brief asserts that
the injunction constitutes prior restraint and is
overly broad, since it prohibits distribution of
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the entire issue and not just the photos.
The Foundation joined another amicus brief
submitted by the Media Coalition in support of
Playboy Entertainment Group v. Reno. This
case involves another aspect of the
Telecommunications Act of 1996, which
requires that “indecent” programming must be
scrambled or blocked so that cable viewers
cannot receive any portion of the audio or
video unless they specifically subscribe to the
service.
The brief makes several arguments: first, the
term “indecent” is unconstitutionally vague;
second, the statute does not serve a compelling
government interest, since the program is only
available to those who subscribe to it; and
third, scrambling is not the least restrictive
means of restricting access to the programs.
[President Pinnell-Stephens then discussed the
indictment in Tennessee of Barnes & Noble in
connection with its display of books by Jock
Sturges and David Hamilton. This case is
featured on page three.]
While most of these cases are not directly
related to libraries, we considered two new
cases that are. The first of these concerns a
suit filed by a coalition of Loudoun County,
Virginia, residents who are alleging that
imposition of Internet blocking software in the
public library by the Board of Trustees violates
their First Amendment rights. [This case is
discussed beginning on page one.]
The second concerns action taken by the
school boards in both Anchorage and
Fairbanks, Alaska, to restrict access to a title in
the high school libraries, American Indian
Myths and Legends. The incident began when
a high school teacher assigned his English class
stories he had photocopied and distributed, but
which he had not read. A student complained
Freedom to Read Foundation News
about being uncomfortable with the sexual
content of one of the stories, and the Assistant
Superintendent filed an appeal of the title in
both the classroom and the library. The review
committee voted 12-2 to retain the book, but
the Superintendent instead recommended it be
removed. The Board then voted to place the
book in a professional collection, available only
to teachers and administrators. In Fairbanks,
the Assistant Superintendent, without receiving
a complaint, pulled all copies of the book and
placed it in a central district media collection
available only to teachers and adults in the
community. There has been no public
discussion of this issue.
The Foundation will join with the Alaska Civil
Liberties Union, the Alaska Library
Association, and other community groups in
filing a letter of protest and appeal of both
actions. If this letter does not result in
appropriate action, we will join in preparing a
suit.
The last case we discussed came to our
attention from a former board member and
concerns a suit filed by the Texas Beef
Growers Associations against Oprah Winfrey
under a Texas statute that allows them to
recover damages if they are adversely affected
by a false statement about their perishable
products. Known as the “veggie libel” trial, the
court has issued a gag order on all parties
involved in the case. We do not anticipate a
request for help in this matter.
One more issue of which you need to be aware
is a bill sponsored by Senator Coats before the
adjournment of the last Session of Congress.
The bill would prohibit commercial
distribution on the Web of material that is
harmful to minors. Problems with this bill
include limits of material on the Web,
definition of “commercial” and the definition
of “harmful to minors.” We urge all of you to
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Page 12
contact your legislators before Congress passes
another unworkable and unconstitutional law
to restrict the Internet.
As I'm sure you are aware, there has been a
great deal of confusing and often inaccurate
information on various listservs about legal
issues surrounding Internet access in libraries.
Discussions I have seen center most often
around the use of software filters, sexual
harassment, and determination of community
standards. As a result , I have directed our
counsel to prepare a series of articles that will
provide librarians with a qualified legal
perspective of these issues and help them
refute unfounded claims.
Finally, other business. We know it doesn't
seem possible, but December 1, 1999, will be
the thirtieth anniversary of the Freedom to
Read Foundation. The Board of Trustees
does not think it is too early to begin planning
the celebration for this happy occasion.
As always, it has been my pleasure to come
before you. The Freedom to Read Foundation
looks forward to another challenging and busy
year defending intellectual freedom and joining
in significant litigation defining our
fundamental expressive rights.
Respectfully Submitted,
June Pinnell-Stephens
President