Information about current and recent litigation or other situations in which FTRF is involved or monitoring
Privacy and Surveillance: One of the ongoing priorities for the Freedom to Read Foundation is the preservation of reader privacy and the right of the library user to read and inquire free from any surveillance or unwanted interference by the government.In particular, FTRF wants to ensure that library users are not chilled in their right to receive information because they fear the government's warrantless surveillance of their communications will reveal the subject matter of their inquiries. Past history has taught us that individuals will avoid accessing controversial, unorthodox, or sensitive material they have a constitutional right to read if they believe the government is monitoring their reading habits.
To address this priority, FTRF recently joined two different amicus curiae briefs to challenge the government's bulk collection of phone metadata without a warrant and to support the right of libraries to challenge warrantless surveillance on behalf of their patrons.
1. The amicus brief filed in United States v. Moalin argues that the government should not be permitted to engage in warrantless searches and seizures of phone metadata because that metadata reveals information about an individual’s expressive and associational activities that should be protected by both the First and Fourth Amendments of the Constitution.The underlying case arose as a criminal prosecution and involves the defendant's request for a new trial based on the government's failure to disclose that evidence used against the defendant was gathered through the National Security Agency's bulk phone metadata surveillance program without a warrant. The amicus brief signed by FTRF challenges existing Supreme Court precedent holding that individuals "voluntarily" provide such data to third parties like phone companies, thereby ending the user's Fourth Amendment expectation of privacy. The brief asserts that, given the realities of the digital age that require individuals to entrust their metadata and content to third party communications companies, this doctrine should be set aside and the government required to obtain a warrant whenever it seeks to access metadata that reveals information about a user's associations and expressive activities.
The amicus brief was prepared by the Brennan Center for Justice at New York University's School of Law. Joining FTRF on the amicus brief are the American Library Association, the Electronic Privacy Information Center, the National Association of Criminal Defense Lawyers, the Ninth Circuit Federal and Community Defenders and the Reporters Committee for Freedom of the Press.The case is currently pending before the Ninth Circuit Court of Appeals.
2. The second amicus curiae brief joined by FTRF asserts the importance of privacy to the unfettered exercise of First Amendment rights and argues that libraries, booksellers, and similar organizations can assert the rights of their users related to their privacy concerns associated with the government surveillance of users' reading records.The underlying lawsuit, Wikimedia v. National Security Agency, challenges the National Security Agency's practice of using "upstream surveillance" to intercept international communications as they travel across the internet's backbone and was filed by the ACLU on behalf of a number of legal, educational, and human rights organizations.The government argues that these organizations have no standing to challenge the NSA's surveillance;the amicus brief points out that individual users are likely to avoid challenging the law for fear that the content of their communications would be revealed.Consequently, libraries, booksellers, and similar organizations can assert their users' privacy rights on the grounds that such warrantless surveillance chills communications between users and the libraries, booksellers, and organizations that serve and represent them.
The amicus brief was written by the Electronic Frontier Foundation.Joining FTRF on the brief are the American Booksellers Association, the American Library Association, the Association of Research Libraries and The International Federation of Library Associations. On October 23, 2015 the district court dismissed the lawsuit on the grounds that the plaintiffs failed to provide factual evidence of how NSA actually was using its program to search and seize communications; it held that the plaintiffs lacked standing because the plaintiffs' alleged injury was speculative.The plaintiffs are currently considering an appeal to the Fourth Circuit Court of Appeals.
Prison Legal News v. Kane
Status: VICTORY in U.S. District Court, pending possible appeal
FTRF involvement: amicus
Details: On February 17, 2015, Freedom to Read Foundation filed an amicus brief in this case challenging the constitutionality of Pennsylvania's "Revictimization Relief Act." That law, passed in October 2014, permits crime victims to sue offenders to stop actions - including speech - that cause "mental anguish" to their victims. Supporters of the law were motivated by a recent recorded graduation address for Vermont's Goddard College by Mumia Abu-Jamal, who was convicted of the 1981 murder of police officer Daniel Faulkner. FTRF submitted a memo in opposition to the bill prior to its passage, and sent a letter to Governor Tom Corbett opposing the law prior to his signature.
On January 8, 2015, the ACLU of Pennsylvania filed suit on behalf of several media outlets and former prisoners to challenge the law. On February 26, a motion for preliminary injunction was argued in federal district court.
FTRF's brief was written by the Reporters Committee for Freedom of the Press and also joined by American Booksellers for Freedom of Expression and Pennsylvania NewsMedia Association.
On April 28, 2015, a federal judge struck down the law as "manifestly unconstitutional." The bill's sponsor has indicated he will ask the Pennsylvania Attorney General to appeal and, failing that, will draft a new law.
Status: Victory.The federal district court in Arizona has entered a final decree in favor of FTRF and its fellow plaintiffs in Antigone Books L.L.C., et al., v. Tom Horne, our legal challenge to the Arizona statute that makes it a crime to publish, sell, loan or disclose images that include nudity without the depicted person's consent for each distribution.Although the statute had the laudable goal of preventing "revenge porn," the law, as written, threatened to make the dissemination of a large number of historic, artistic, educational and other newsworthy images a crime punishable by fines and imprisonment, placing librarians at risk of prosecution for distributing images such as the iconic photo of "Napalm Girl" fleeing from an attack on her village during the Vietnam war.The final decree resolves all claims in the lawsuit and permanently enjoins Arizona's state prosecutors from enforcing the law
Suit filed with the U.S. District Court for the District of Arizona on September 23, 2014. On November 3, 2014 plaintiffs including FTRF filed a motion for preliminary injunction. On November 26, 2014, the judge issued an order staying enforcement of the law (and staying the lawsuit), giving the state legislature an opportunity to reconsider the law.
On March 3, 2015, the state House of Representatives passed H.B. 2561, which would amend the statute but which still has constitutional concerns. On March 6, attorneys for the plaintiffs sent a letter to legislators outlining our continued concerns.
FTRF involvement: plaintiff
Details: FTRF filed this lawsuit against an Arizona statute criminalizing the display, publication, and sale of nude photos without the consent of the person depicted. While the law purports to make "revenge porn" sites illegal, the complaint argues that the law violates the First Amendment, as it is written so broadly that it includes a wide range of newsworthy, artistic, educational, and historical images, and would impact librarians, booksellers, educators, publishers, and many others. The complaint gives examples of situations in which individuals, in situations far from "revenge porn," could face felony charges.
The suit was filed by Media Coalition on behalf of FTRF and co-plaintiffs including the Association of American Publishers, American Booksellers Foundation for Free Expression, five Arizona booksellers including Antigone Books, and other media organizations.
Status: Victory! On June 16, the U.S. Supreme Court decided unanimously that the plaintiffs could move forward with their pre-enforcement challenge to Ohio's "false politicking" law. On September 11, the U.S. District Court for the Southern District of Ohio, Western Division, declared the law unconstitutional.
FTRF involvement: amicus
Details: Susan B. Anthony List v. Driehaus is a case involving the right to challenge laws that infringe on the First Amendment prior to their enforcement. The case on appeal to the High Court after the Sixth Circuit affirmed a lower court ruling that the Susan B. Anthony List (SBAL) lacked standing to submit a facial (or pre-enforcement) challenge to an Ohio law regulating speech in campaign advertising. The lower court found that SBAL couldn't demonstrate that prosecution under the law was "likely" or "imminent."
Details: This lawsuit, filed by teachers and students in the Tucson
Unified School District (TUSD) against the Arizona Superintendent of Public Instruction
and other state officials, challenges the constitutionality of Arizona Revised
Statute § 15-112, which prohibits the use of class materials or books that
encourage the overthrow of the government, "promote resentment toward a
race or class of people," are "designed primarily for pupils of a
particular ethnic group," and "advocate ethnic solidarity instead of
the treatment of pupils as individuals." Tom Horne, Superintendent
of Public Instruction at the time of the law’s adoption, issued a finding that
TUSD was in violation of §15-112 because of courses offered as part of TUSD’s Mexican American Studies ("MAS”) program. John
Huppenthal, Horne’s successor, issued a second finding that TUSD was in
violation, and TUSD was forced to cease its Mexican-American Studies program
and remove books from its classrooms, despite the fact that they have studies
to support their position that the program has helped students to graduate and
that the program is open to all students, not just Mexican-American students.
On cross-motions for summary judgment, the district court
held that the statute did not violate the First Amendment. That ruling
currently is on appeal to the Ninth Circuit Court of Appeals. The appellants filed their brief on November 18, 2013.
On November 25, 2013, FTRF filed an amicus brief in support of the students' First Amendment claims. Read the brief here.
Update: On July 7, 2015, the Ninth Circuit Court of Appeals issued the long-awaited decision in Maya Arce, et al. v. Diane Douglas, et al (formerly Arce v. Huppenthal). The lawsuit, filed by teachers and students in the Tucson Unified School District (TUSD) against the Arizona Superintendent of Public Instruction and other state officials, challenged the constitutionality of an Arizona statute prohibiting the use of class materials or books that encourage the overthrow of the government, “promote resentment toward a race or class of people,” are “designed primarily for pupils of a particular ethnic group,” or “advocate ethnic solidarity instead of the treatment of pupils as individuals.” The plaintiffs filed the lawsuit after TUSD was forced to cease its Mexican-American Studies program and remove books from its classrooms.After the district court upheld the constitutionality of the statute, the plaintiffs appealed, asking the Ninth Circuit Court of Appeals to overturn the district court's decision.
At the request of the plaintiffs' legal counsel, FTRF's legal counsel authored an amicus curiae brief in support of the plaintiffs' First Amendment claims. The American Library Association, REFORMA, the Black Caucus of the ALA and the Asian/Pacific American Librarians Association all joined FTRF on the brief.
Details: According to CPS documents, on March 11, a directive was given from the Chicago Public Schools (CPS) administration at a meeting of the 19 Chiefs of Schools (called "mini-superintendents” by some, they oversee the networks of CPS schools) regarding the graphic novel Persepolis. The following day, a follow-up email was sent to the chiefs saying, "Please instruct your Network’s Instructional Support Leader(s) to collect the book titled Persepolis from your schools’ classrooms and libraries." On March 13, another email was sent saying: "Update: It appears that while we can collect the copies of the book from the classrooms, we cannot collect them from the school libraries without going through the process outlined in the policy for 'New Collection Development Policy for School Libraries' (604.7)."
On March 15, following a wave of publicity, FTRF & ALA staff spoke with CPS Chief of Instruction Annette Gurley who
said CPS CEO Barbara Byrd-Bennett made the decision to restrict access to the book after a principal called it to her attention. She said that due to concerns about "graphic illustrations and language” and "student readiness,” CPS wanted
to "control how it’s being presented” and that the book was restricted from both curricula and classroom libraries until "teaching guidelines” were developed and training implemented for instructors who wanted to teach the book.
The afternoon, a letter to CPS principals from Byrd-Bennett instructed principals to remove the book from seventh grade classrooms and not to remove Persepolis or any other book from central school libraries, "unless you have
complied with the [CPS collection development] policy.” She also said "We have determined Persepolis may be appropriate for junior and senior students and those in Advance Placement classes” and that the administration was
considering its appropriateness for eighth through tenth grades. FTRF filed its FOIA request that day.
UPDATE: In December, 2014, CPS responded to a FOIA request from University of Illinois MLIS student Jarrett Dapier, who was writing a paper on school censorship. In their response, they included documents suggesting that, contrary to CPS' initial public statements - and their response to FTRF's FOIA request - there was in fact an effort to remove Persepolis from all schools and libraries in CPS. Moreover, Barbara Byrd-Bennett herself was involved in that decision. See more on the FTRF Blog.
Details: On November 1, 2011 the Freedom to Read Foundation filed an amicus brief with the Michigan Supreme Court in the case of Michigan v. Kilpatrick. The case involves former Detroit Mayor Kwame Kilpatrick, who was convicted of obstruction of justice and assault of a police officer, and who is currently under indictment for tax evasion, mail fraud, extortion, and bribery.
The brief supports Kilpatrick’s application to the court to hear an appeal of an order escrowing all proceeds from his book, Surrendered: The Rise, Fall & Revelation of Kwame Kilpatrick, which an intermediate appellate court refused to hear.The brief holds that Michigan’s version of a "Son of Sam” law—in which a convicted criminal is required to forfeit all proceeds from a book that mentions the crime—unconstitutionally chills protected speech. FTRF was joined in the brief by the Association of American Publishers, the American Booksellers Foundation for Free Expression, and PEN American Center.
The brief was written by FTRF Trustee Jonathan Bloom, who is General Counsel to AAP.
Weber et al. v. Davis School District: Utah school library book removal
Status: Victory! This case was settled on January 31, 2013, resulting in full reinstatement of In Our Mothers' House and a commitment not to ban books based on the Utah law banning promotion of homosexuality. See FTRF's blog post on the settlement, and read the official settlement.
FTRF involvement: FTRF provided expert assistance to the ACLU of Utah
Details: This lawsuit challenges the decision by the Davis County School District to remove all copies of the children’s picture book In Our Mothers' House from the district’s library shelves and place the book behind a counter where students must have written parental permission to view and access the book. The school district made its decision following a complaint by a parent that the book "normalizes a lifestyle we don’t agree with,” despite a finding by the original reconsideration committee that the book should be retained in the library. The district claims that, by telling the story of children raised by same-sex parents, the book constitutes "advocacy of homosexuality,” in purported violation of Utah’s sex-education laws.
The lawsuit seeks an order returning the book to school library shelves without restriction and prohibiting the school district from restricting access to books in the library on the grounds that the books contain "homosexual themes” or "advocacy of homosexuality.”