Freedom to Read Foundation News



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Freedom to Read
Foundation News

50 East Huron Street, Chicago, Illinois
Phone (1-800-545-2433, ext. 4226; www.ftrf.org; ftrf@ala.org

Judith F. Krug, Executive Director
Candace D. Morgan, President

Vol. 23, No. 3 1998



Table of Contents:


  • Top

  • Office for Intellectual Freedom, Freedom to Read Foundation Celebrate 30 Years

  • Contrasting Internet Access Suits

  • Kathleen R. v. City of Livermore

  • Mainstream Loudoun v. Board of Trustees of Loudoun County Library

  • New Mexico Enjoined in “Mini-CDA” Case, State Appeals

  • Oliver Stone Film On Trial

  • Final Lewinsky Decisions, Subpoena Issues Resolved

  • Tin Drum Update

  • Roll Of Honor Award Presented To Dorothy M. Broderick

  • Supreme Court Activity

  • Analysis of Finley Decision By Anne Kappler

  • Freedom To Read Foundation Report To Council

  • Bottom


Office for Intellectual Freedom, Freedom to Read Foundation Celebrate 30 Years


A gala dinner celebrating the 30th anniversary of the American Library Association’s Office for Intellectual Freedom and its sister organization, the Freedom to Read Foundation, will be held Saturday, January 30, 1999, during the ALA Midwinter Meeting in Philadelphia. Susan Isaacs, author of Lily White, Compromising Positions and other bestsellers, will be the special guest speaker.

An honor roll of librarians, trustees and others from across the country who have made outstanding contributions in defense of the First Amendment and the right to read will be announced.

The celebration will be held at the Crystal Tea Room, 100 Penn Square, in Philadelphia. Cocktails begin at 6:30 p.m., followed by dinner at 7:30 p.m. Tickets are $60. Tables of 10 are available for $600.

Honorary co-chairs are Candace Morgan, president of the Freedom to Read Foundation, and Steven Herb, chair of the ALA Intellectual Freedom Committee. The 30th Anniversary Dinner Committee includes Carol DiPrete, chair, Judy Arteaga, Estelle Black, Pamela Bonnell, Janet Vaill Day, Jennifer Gallant, Deborah Jacobs, Susan Madden, Molly Raphael and Sue Sherif.

For more information and to request an invitation, please contact the ALA Office for Intellectual Freedom at (800) 545-2433 ext. 4226 or by e-mail at oif@ala.org. Please see announcement and reservation form at centerfold of this issue.

Contrasting Internet Access Suits


Mainstream Loudoun v. Board of Trustees of Loudoun County Library and Kathleen R. v. City of Livermore represent two sides of the Internet filtering debate. Mainstream Loudoun is the constitutional challenge by a citizens group to a policy that imposes filtering to block access of all library users, adults and children, to sexually explicit sites on the Internet. Kathleen R. is a new lawsuit by an anonymous parent demanding a policy that blocks her child’s, and generally all other children’s, access in the library to materials on the Internet that are obscene and harmful to minors. Unlike Mainstream Loudoun, Kathleen R. makes no issue of an adult’s right to access sexually explicit sites; it makes no issue of a child’s right, provided parental permission is given. Read together, the two cases potentially define important rights of adults and children to Internet access in libraries.

Kathleen R. v. City of Livermore


This complaint filed by the mother of a 12-year-old who allegedly used public library Internet access to download and distribute sexually explicit materials (see “Report to Council,” in this issue), and makes three distinct claims.

First, the mother alleges that using public funds to give children access to illegal materials is a “waste of public funds” as defined under California state statute. Second, she contends access to materials that are obscene or harmful to minors constitutes a public nuisance to bystanders and children exposed to such materials. Third, she alleges the library is “unsafe” as defined under “premises liability” law because children are exposed to materials that are harmful by definition.

On July 13 instead of formally answering the complaint, the defendant, Livermore, filed a “demurrer” or motion asking the court to dismiss it altogether. The motion argues that none of the claims against the defendant are legally valid or require the library to stop its policy of free and open Internet access. As summed up in its brief, the demurrer focuses on “the procedural defects in the [c]omplaint” and does not address questions of the constitutionality of the library policy.

Chief among the “procedural defects” is the federal law shielding the library, as an Internet service provider, from liability for material originating from a third party. This defense is based on section 230 of the Communications Decency Act and Zeran v. America Online, Inc., which shows how the statute must be applied (see “Supreme Court Activity,” in this issue).

The American Civil Liberties Union, along with People for the American Way, joined in filing an amici curiae brief. The brief also is based on Zeran; secondarily, it raises free speech issues. The amici argue attempts by a public library to prevent users’ access to materials that are obscene or harmful to minors would constitute a “prior restraint” prohibited by the First Amendment. Only courts, not software engineers or librarians, can determine what materials are illegal.

A hearing on the “demurrer” is scheduled for October 21.


Mainstream Loudoun v. Board of Trustees of Loudoun County Library


On October 2, as this issue of the Freedom to Read Foundation News goes to press, Judge Leonie M. Brinkema of the U.S. District Court for the Eastern District of Virginia issued an order in this much publicized challenge to the highly restrictive Internet use policy imposed on Loudon County libraries (see “Loudon County: First Decision on Library Filtering” in Freedom to Read Foundation News, Volume 23, Number 2). “Having reviewed,” the judge stated, “the voluminous pleadings and exhibits submitted in this case” and agreeing with the parties “that the current record is sufficient to allow the court to decide summary judgment, the Court has determined that an evidentiary hearing is not required.” She further stated that the court will decide the motions “on the papers” and “issue a memorandum opinion within the next few weeks.”

On September 4, all parties had filed motions for summary judgment asking the court to determine the issues and conclude the lawsuit without having to go to trial. Briefs filed by the parties in support of their motions can be found at: www. aclu.org/court/kathleenrvslivermore.html, www.pfaw.org/courts/loudoun_brief.shtml, and www.venable.co m/ORACLE/MSJ.htm. Argument on the motions took lace on September 25.

In other news, the Loudoun County Board of Supervisors agreed to add $10,000 to some $30,000 already committed to defend the lawsuit. It ousted John Nicholas, however, from the Board of Trustees of Loudoun County Library. Nicholas, as chair of the library board, had championed the restrictive Internet policy; he had vowed to spend up to $100,000 to defend it.

Discovery, or gathering of evidence, concluded at the end of July. Before the latest motions for summary judgement, a trial date had been scheduled for mid-October.


New Mexico Enjoined in “Mini-CDA” Case, State Appeals


On June 23, following a two-day hearing, Judge C. Leroy Hansen granted a motion by the plaintiffs in American Civil Liberties Union v. Johnson seeking a preliminary injunction against a New Mexico statute criminalizing online dissemination of sexually oriented materials (see “Redux of ‘Mini-CDA’ Challenge,” in Freedom to Read Foundation News, Volume 23, Number 2). Enforcement of the statute is now blocked. The court relied on two decisions well known to the library community — the CDA decision in American Library Ass’n v. U.S. Department of Justice (consolidated with and decided by the U.S. Supreme Court under the name of Reno v. American Civil Liberties Union) and the “Mini-CDA” decision in American Library Ass’n v. Pataki. (Pataki is discussed in “Another Online Victory!” in Freedom to Read Foundation News, Volume 22, Numbers 3-4). Judge Hansen found that, when the entire matter is concluded, the plaintiffs are likely to succeed on their claims that the New Mexico criminal statute violates the First, Fifth, and Fourteenth Amendments, as well as the Commerce Clause, of the U.S. Constitution. The court’s formal “findings of fact and conclusions of law”, issued in tandem with its order, lists specific grounds for the preliminary injunction. These will likely figure into a final determination of the matter.

Significantly, the court found, as a “conclusion of law,” that the New Mexico statute “interferes with the rights of minors to access and view material that to them is protected by the First Amendment.” Judge Hansen acknowledged precedent stating that “if a work is found to have serious literary, artistic, political or scientific value for a legitimate minority of normal, older adolescents, then it cannot be said to lack such value for the entire class of juveniles taken as a whole” (internal quotation marks removed).

Under the New Mexico statute, a speaker on the World Wide Web who restricted access to “indecent materials” by requiring use of a credit card or other adult access tool was given a “defense” to avoid conviction in a criminal prosecution. Commenting on the adequacy of that “defense,” Judge Hansen stated, as a “finding of fact,” that the vast majority of speakers on the World Wide Web have “no practical way” to require adult verification.

The court stated that it is impossible for speakers who do not engage in financial transactions to require such verification. For any speaker on the Web, the use of Common Gateway Interface (CGI) technology to require credit card or age verification “requires additional system overhead, maintenance, and expertise” not commonly available.

The court further stated that “[r]equiring a credit card, debit account, adult access code, or adult personal identification number before providing access to speech on the Internet would bar many adults who lack such identification from access to information appropriate for them.” Requiring such verification “would bar many people from accessing important information—such as gynecological information—anonymously.”

None of the court’s “findings of fact and conclusions of law” constitute actual “precedent,” but the determination may prove to be persuasive as identical issues crop up in future cases. Congress is currently considering legislation to restrict free speech on the Internet that involves a similar credit card and age verification “defense.”

The order granting the preliminary injunction against the New Mexico criminal statute was issued one day after Judge Hansen determined a motion by the defendants seeking to dismiss the complaint or refer the matter to the New Mexico Supreme Court. On June 24, the court denied that motion, which involved “ripeness” questions and other technical issues.

The defendants have filed a notice that they will appeal the order granting the preliminary injunction. The matter will be heard by the U.S. Court of Appeals for the Tenth Circuit.


Oliver Stone Film On Trial


The Louisiana Court of Appeals has ruled that the family of a woman shot during a robbery can sue filmmaker Oliver Stone over allegations that his film Natural Born Killers inspired the crime. The decision reversed that of a lower court, which said the First Amendment protected the film.

The lawsuit was filed by the family of Patsy Ann Byers, who was working as a shop clerk when she was shot and paralyzed during a March 1995 robbery. Ms. Byers died in November 1997 after a struggle with cancer. Sarah Edmondson and Benjamin Darras, who are accused of the robbery and shooting, have said that they were inspired by a similar crime depicted in Natural Born Killers. The 1994 film portrays a couple who kill 52 people in three weeks.

Edmondson’s statements caused Byers’ family to add Stone, Warner Brothers and Time Warner Entertainment to their damage suit against the two suspects and Edmondson’s family. While the case against the Hollywood defendants was thrown out by the trial court, the appellate court ruled that if the defendants intended to spur copycat crimes, as the Byers family alleges, the First Amendment was no shield. “Once accepted as true, the film Natural Born Killers would fall into the unprotected category of speech directed to inciting or producing imminent lawless action and which is likely to incite or produce such action,” the court stated. The court also acknowledged that proving intent in this case will be extremely difficult, but felt that the issue should have its day in court.

The decision in Byers v. Edmondson is a direct result of the decision in Rice v. Paladin Press, the Hit Man case. In that case, the Fourth Circuit held that the publisher of a book providing instructions on how to carry out a contract killing could be civilly liable for aiding and abetting a murder and allowed the case to proceed to trial. In April, the Supreme Court declined to review the case.

“The Court of Appeals has held that the makers of a work of fiction, in this case a feature film, can be sued for the criminal acts of one or two disturbed individuals out of the millions who saw the movie. No other court has ever sustained a claim like this,” said Jack Weiss, the lawyer for the filmmakers. Weiss also asserted that this case is in no way similar to the Hit Man case. “That case involved a nonfiction, step-by-step manual on how to commit murder for hire, not a fictional motion picture.” Although Natural Born Killers does portray violence and crime, so do hundreds of other movies like Bonnie and Clyde, The Godfather and Thelma and Louise.

The case will be appealed to the Louisiana Supreme Court.


Final Lewinsky Decisions, Subpoena Issues Resolved


As Independent Counsel Kenneth Starr’s report to Congress and the President’s videotaped testimony took center stage, the First Amendment issues raised by the subpoenas seeking records of Monica Lewinsky’s bookstore purchases have faded into the background. The library community can take satisfaction, however, from its participation in the opposition to the subpoenas issued by the Independent Counsel. Indeed, the legal action in which the Foundation participated vindicated First Amendment rights concerning the confidentiality of bookstore purchases and, by extension, library records.

Sometime in May, Chief Judge Norma Holloway Johnson of the U.S. District Court for the District of Columbia rendered decisions on the motions to quash the two subpoenas (see “Chilling Effect ‘Persuasively Alleged’ by Bookstores in Lewinsky Case” in Freedom to Read Foundation News, Volume 23, Number 2). Events unfolded as follows:

In her order, received by Kramerbooks & afterwords as a document under seal, the judge required the independent Washington, D.C., bookstore to turn over information about Lewinsky’s purchases, but narrowed the scope of the original subpoena. The judge directed Kramerbooks at some point to deposit the materials in court for “in camera” or personal and private inspection to allow her to isolate only those for which the special prosecutor had a “compelling need.”

The judge similarly ordered Barnes & Noble to deposit materials in court. After “in camera” inspection, she determined that Starr did not have a “compelling need” for any of the materials and required nothing further of the bookstore.

In response to the judge’s decision denying its motion to quash, Kramerbooks vowed to appeal and applied for a stay to avoid having to turn over any documents to the Independent Counsel. Before the bookstore took significant steps in the appeal, however, Lewinsky herself voluntarily turned over some of the records originally sought. Near the end of June, Starr agreed to withdraw the subpoena issued to Kramerbooks.

The judge’s initial decision requiring the Independent Counsel to show both a “compelling need for the information sought” and “a sufficient connection between the information sought” and the criminal investigation established an important precedent. Indeed, it recognized that First Amendment interests are counterbalanced only in the most exceptional circumstances.


Tin Drum Update


October 13 is the date set for the trial of the various lawsuits involved in the Tin Drum controversy (see “A Win in the Tin Drum Round One” in Freedom to Read Foundation News, Volume 23, Number 1). According to Oklahoma Department of Libraries Online, delays in going to trial are a result of defenses asserted by the Oklahoma City Police and the District Attorney that they are “immune” from claims made against them “for just doing their job.”

Roll Of Honor Award Presented To Dorothy M. Broderick


Library educator Dorothy M. Broderick received the annual FTRF Roll of Honor Award at the 1998 ALA Annual Conference in New Orleans. The award recognizes those who have stood strong on behalf of intellectual freedom and the freedom to read and against censorship of ideas. The text of the citation follows:

Thank you, Dorothy Broderick, for standing strong on behalf of intellectual freedom and the freedom to read and against censorship of ideas.

Thank you for serving as professor and mentor to an entire generation of librarians and for teaching the fundamental values of intellectual freedom to your students.

Thank you for being a shining example of how to deal with intellectual freedom challenges in libraries and for being there to assist librarians in need.

Thank you, Dorothy Broderick, for defending the rights of young people to open access in the library.

Thank you for being a role model for your colleagues across the nation.

Thank you, Dorothy Broderick, for strengthening the profession of librarianship by being a part of it.

Supreme Court Activity

National Endowment for the Arts v. Finley


The Court found that the law specifying “decency and respect” criteria for judging grant applications did not necessarily require the federal arts agency to deny funding when it encountered works having a particular viewpoint, and the statute was not invalid on its face. A complete analysis, prepared by the Freedom to Read Foundation’s general counsel, follows below (see also “Supreme Court Activity” in Freedom to Read Foundation News, Volume 23, Number 2; and “Freedom to Read Foundation Report to Council,” in Volume 23, Number 1).

Arkansas Educational Television Commission v. Forbes


On May 18, the Court determined a government-funded public broadcaster may, consistent with the First Amendment, exclude minor or fringe candidates from a televised debate to which it invited the mainstream candidates. Such a debate is a “nonpublic forum”—as opposed to being no forum whatsoever—where the broadcaster may exercise editorial discretion subject only to minimal First Amendment scrutiny requiring the broadcaster to refrain from viewpoint discrimination.

Zeran v. America Online, Inc.


On June 22, the Court denied review of the decision that an Internet service provider is immunized by federal statute from liability for negligently permitting defamatory statements to be posted on a bulletin board (see “Supreme Court Activity” in Freedom to Read Foundation News, Volume 23, Number 2).

General Media Communications, Inc. v. Cohen


On June 26, the Court denied review of the decision that the federal law banning sale of “lascivious” materials in military stores is a valid content-based regulation of speech in a non-public forum (see “Supreme Court Activity” in Freedom to Read Foundation News, Volume 23, Number 1).

Analysis of Finley Decision By Anne Kappler1


On June 25, the Court issued its decision in Finley. In an opinion authored by Justice O’Connor, the majority2 ruled that the challenged provision of the National Foundation on the Arts and Humanities Act, as amended in 1990, does not, on its face, impermissibly discriminate on the basis of viewpoint and is not void for vagueness under the First and Fifth Amendments.

All in all, the Court’s decision is rather narrow, hinging on its interpretation of the provision at issue as not necessitating funding decisions based on statutorily articulated criteria. The distinction between government funding decisions and direct government constraints did not form a basis for the majority’s decision.

The provision at issue requires the Chairperson of the NEA to ensure that artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration “general standards of decency and respect for the diverse beliefs and values of the American public.” 20 U.S.C. 954(d)(1). The majority interpreted the statue as merely “advisory language,” imposing no categorical requirement. Accordingly, the Court rejected plaintiffs’ claim that the provision compels the NEA to deny funding on the basis on viewpoint discriminatory criteria. Finding further support in the “political context surrounding the adoption of the ‘decency and respect’ clause,” the Court concluded that “the criteria in Sec. 952(d)(1) inform the assessment of artistic merit, but Congress declined to disallow any particular viewpoints.“ In the majority’s view, “the provision does not introduce considerations that, in practice, would effectively preclude or punish the expression of particular views.” This was particularly so, the Court concluded, because the criteria are susceptible to multiple interpretations. Stating it simply, the Court found that the danger that the provision inevitably will be utilized as a tool for invidious viewpoint discrimination was as unrealistic as an argument that the artistic excellence standard would be so misused. And any hypothetical improper use could not justify invalidating the statute on its face.

The Court acknowledged that there was content-based considerations that the NEA undertook in deciding whether to issue grants.

But this, the Court concluded, is “a consequence of the nature of arts funding.“ The agency cannot issue grants to all applicants and may decide to fund particular projects for a wide variety of reasons. Since the very assumption of the NEA is that grants will be made based on artistic excellent, the notion of “absolute neutrality is simply inconceivable.” Indeed, the Court concluded that the NEA’s mandate to make aesthetic judgements and the inherently content-based criteria of excellence, distinguishes this case from other subsidy situations the Court has faced.

The Court expressly left open the possibility of mounting an as-applied challenge to a particular NEA funding decision where a plaintiff might demonstrate that the denial of a grant was the product of invidious viewpoint discrimination. The Court cautioned that, even in the context of subsidies, the government may not penalize disfavored viewpoints. And the Court acknowledged that a “more pressing constitutional question would arise if government funding resulting in the imposition of a disproportionate burden calculated to drive certain ideas or viewpoints from the marketplace.”

In a separate decision, not joined by Justice Ginsberg, which constitutes dicta, the majority observed that “the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake.” The majority then reiterated its holding in Rust v. Sullivan that government may “selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way.” This, the Court noted, does not constitute viewpoint based discrimination: there is no direct governmental interference with a protected activity, just encouragement of the alternative.

Finally, the Court concluded that Section 954(d)(1) is not unconstitutionally vague. Acknowledging that the criteria are “undeniably opaque,” the majority found it unlikely that they would result in any chilling effect on prospective grant applicants. “[W]hen the Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.” Indeed, the Court concluded, a contrary conclusion would call into question the constitutionality of many other government programs awarding monies based on subjective criteria such as excellence.

Justice Scalia, joined by Justice Thomas, filed a concurring opinion. They concluded that the provision, by its terms, establishes content-and viewpoint-based criteria upon which grant applications are to be evaluated, and this is entirely constitutional. They disagreed with the majority’s view that the “decency and respect” criteria is merely “advisory,” reading the statue as mandating that these factors be considered for each grant application. While agreeing that the criteria are not definitive, the Justices believe an applicant whose work demonstrates indecency and disrespect for the diverse beliefs and values of the American people has a much lesser chance of obtaining a grant. “The unquestionably constitutes viewpoint discrimination.” Justice Scalia stated his view as to why such discrimination is permissible in stark terms. Speakers’ right to express themselves is in no way affected; “they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures aimed at the suppression of dangerous ideas.” Justices Scalia and Thomas believe the First Amendment is inapplicable in the context of governmental funding.

Justice Souter alone dissented. He concluded that Section 954(d), on its face, constitutes unconstitutional viewpoint discrimination.


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 Pinnell-Stephens, Freedom to Read Foundation President, at the 1998 Annual Conference, in Washington, D.C.

Presented Tuesday, June 30


by June Pinnell-Stephens, President

As President of the Freedom to Read Foundation, I am pleased to report on the Foundation’s activities at this Annual Conference meeting.

Probably the biggest and best news is Mainstream Loudoun v. Board of Trustees of Loudoun County Library [see more in this issue]. As you probably know, this is the constitutional challenge to the restrictive Internet use policy in the Loudoun County (VA) public libraries. On April 7, Judge Leonie M. Brinkema of the U.S. District Court for the Eastern District of Virginia ruled that the First Amendment applies to a library board’s decision requiring library users, adults as well as children, to use filtering software when connected to the Internet. Ruling on the library board’s motion to dismiss the complaint, she said that filtering is permitted under the First Amendment only if the library board can show it is “justified by a compelling government interest” and it is “narrowly tailored to achieve that end.” Although the library board threatened to appeal the decision, it has instead filed a formal answer to the complaint, rather than a notice of appeal. We anticipate the case will now go to trial and will focus on whether the filtering is sufficiently “narrowly tailored” or, in other words, not unnecessarily restrictive of constitutionally protected speech [see update in this issue].

A lawsuit captioned Kathleen R. v. City of Livermore, was filed in Alameda County (CA) Superior Court on May 28 by the parent of a 12-year-old boy in Livermore who allegedly used public library Internet access to download and distribute sexually explicit materials. The parent asks that the library be required to block access to sites that are obscene or harmful to minors [see more in this issue]. The parent compares the Internet to an “attractive nuisance” to children, like an open and abandoned mineshaft. Filtering or other means to block access is like putting a fence around the mine’s dangers, she claims. The defendant plans to file a motion to dismiss the complaint on July 10 [see update in this issue]. The Foundation will monitor this case closely.

The Freedom to Read Foundation is a plaintiff in ACLU v. Johnson, a new constitutional challenge that amounts to a repeat of the lawsuit in ALA v. Pataki [see more in this issue]. You may remember that Pataki last year struck down a “mini-CDA” enacted by New York State. The Johnson lawsuit, filed on April 22 in the U.S. District Court for the District of New Mexico, asks the court to invalidate a newly enacted New Mexico “mini-CDA” that makes it illegal to disseminate online “material that is harmful to a minor” depicting “nudity, sexual intercourse or other sexual conduct.” The basis for the Johnson lawsuit is that the New Mexico statute violates free speech rights and the Commerce Clause of the U.S. Constitution.

An important judicial recognition of the First Amendment basis for rights of privacy and the freedom to read has come out of the Monica Lewinsky case [President Pinnell-Stephens then summarized the Lewinsky case, which is discussed in depth in this issue].

There is something of good news/bad news—mostly good news—concerning Barnes & Noble and the controversies that surround its sale of coffee table art books by Jock Sturges, David Hamilton, and Sally Mann.

In accord with Kansas law, a grand jury had been forced to convene after a conservative citizen’s group gathered some 3,400 signatures on a petition. The good news coming out of this situation is that the grand jury refused to indict Barnes & Noble. This vindicates the original decision of the local prosecutor, who determined that mere nudity depicted in the works did not violate the Kansas child pornography law.

The prosecution of Barnes & Noble in Alabama is still pending. A local bookstore was indicted under that state’s obscenity law.

In Tennessee, however, a Barnes & Noble recently entered into an agreement with a local district attorney concerning the bookstore’s display of works by Sturges and Hamilton. Barnes & Noble will now shelve the materials over five and a half feet from the floor or behind the counter.

In Rice v. Paladin Enterprises, Inc., the Hit Man publisher liability case, the U.S. Supreme Court denied certiorari on April 20. This lets stand the decision of the U.S. Court of Appeals for the Fourth Circuit, which refused to apply the First Amendment to protect the publisher of the assassination manual from liability for a criminal’s use of the work. The case will now go to trial to answer the question of whether the publisher had actually intended the work to be used to commit crimes.

We anticipated repercussions if the Rice v. Paladin case was allowed to prevail, and there is now a case in which the court has cited Rice as a precedent. In Byers v. Edmondson, relatives of a murder victim in a convenience store robbery are suing, among others, Oliver Stone and the production companies involved in making Natural Born Killers [see more in this issue]. The Foundation has joined an amicus brief, and the case is now pending before the Louisiana Supreme Court.

After the school boards in both Anchorage and Fairbanks, Alaska, removed American Indian Myths and Legends from the high school libraries, the Foundation joined a coalition of groups that included the Alaska Civil Liberties Union, the Alaska Library Association, the Alaska Federation of Natives, and other regional Native organizations and corporations. Both districts have ignored the letters sent by the coalition to request a reversal of the action, and the Foundation voted to pursue litigation in cooperation with the ACLU and other members of the coalition.

The final case I wish to mention concerns the Tin Drum. The U.S. District Court for the Western District of Oklahoma has not yet resolved the central question of whether the award-winning movie is child pornography under Oklahoma law.

The Tin Drum controversy is being played out in three lawsuits, portions of which have sometimes been decided under the name of Video Software Dealers Association, Inc. v. City of Oklahoma City. You will recall that, just before the end of last year, the federal district court in Oklahoma ordered the Oklahoma City police to return copies of the video to the rental stores and public library from which they were seized. The court found that the police had exercised an unlawful “prior restraint” by depriving the affected parties their constitutional rights to present their evidence and legal arguments for consideration by a court. The order, however, left for trial the underlying question of whether the Tin Drum is illegal under Oklahoma’s child pornography law. [President Pinnell-Stephens then discussed the trial date, now updated in this issue].

Other Business

Looking ahead, 1999 marks the thirtieth anniversary of the Freedom to Read Foundation. The Board of Trustees has planned a gala celebration to be held on Saturday evening, January 30, 1999, in Philadelphia, at the Midwinter Meeting. We sincerely hope each of you will mark your calendar and plan to attend this signal anniversary.3

My term as President of the Freedom to Read

Foundation is now drawing to a close. That being so, I wish to emphasize that it has been my pleasure to come before you these past three years. I conclude my term knowing the Foundation eagerly looks forward to meeting the many challenges of the upcoming year, working to create new First Amendment—precedents and reconfirm established ones—upholding intellectual freedom in libraries.

Respectfully Submitted,

June Pinnell-Stephens


President

1Ann Kappler is an attorney and partner in the Washington, D.C., office of Jenner & Block.
2Justice O’Connor was joined for most of her opinion by Chief Justice Rehnquist, and Justices Stevens, Kennedy, Breyer and Ginsburg. Justice Ginsburg declined to join in one small section of the opinion.
3For additional information, see www.ala.org/alaorg/oif/events.html#january


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