History of the Freedom to Read Foundation, 1969-2009
Below is a comprehensive list of cases and other FTRF activities from 1969-2009.
The Freedom to Read Foundation was incorporated on November 20, 1969 by members of the American Library Association.
Joan Bodger dismissal
The first major action by the FTRF was a grant to assist librarian Joan Bodger, fired from the Missouri State Library. Bodger lost her job for writing a letter to a local newspaper protesting the suppression of an underground newspaper. An ALA Office for Intellectual Freedom fact-finding report, approved by the Executive Board, vindicated Bodger and deplored the library’s actions.
Marshall E. Woodruff legal defense fund
A grant was awarded to support a lawsuit challenging Woodruff’s conviction for selling an allegedly obscene issue of the Washington Free Press. The Maryland Court of Special Appeals eventually overturned the conviction.
T. Ellis Hodgin dismissal
$500 was awarded to defray financial hardships after Hodgin lost his job as the city librarian of Martinsville, Virginia. Hodgin had come under fire for joining a lawsuit challenging the constitutionality of a religious education course taught in the city school system attended by his daughter.
T. Ellis Hodgin legal defense
Continuing its involvement in the defense of Ellis Hodgin, a second $500 was awarded to assist in perfecting an appeal to the U.S. Supreme Court in a lawsuit Hodgin brought seeking reinstatement as city librarian. The Court declined to review the case.
Todd v. Rochester Community Schools
A grant was awarded to a school system in Rochester, Michigan, for its legal expenses in appealing a state trial court decision upholding the removal of Slaughterhouse-Five from school libraries and classrooms. The Court of Appeals of Michigan eventually ruled in favor of the school system, allowing the book to be returned. This was the Foundation’s first support of litigation to oppose the removal of library materials.
Moore v. Younger
For the first time, the FTRF served as a party in a lawsuit. The lead plaintiff was Everett T. Moore, Assistant Librarian at UCLA and Vice-President of the Freedom to Read Foundation. The class action suit challenged California’s 1969 harmful matter law, asserting that it was unconstitutionally vague and overbroad, and placed librarians in criminal jeopardy for distributing matter judged "harmful to minors.” Ultimately, the defendant state attorney general acknowledged, in 1976, that librarians were exempt from the harmful matter law.
"Pentagon Papers” fund
A grant was awarded for legal defense costs in the federal prosecution of Daniel Ellsberg and Anthony J. Russo, Jr., for their role in the publication of the "Pentagon Papers,” which disclosed the official secret history of American involvement in Vietnam. The charges against Ellsberg and Russo were eventually dismissed.
Kaplan v. California
The FTRF became involved in its first U.S. Supreme Court appeal by filing, through the American Library Association, a motion asking the Court to consider an amicus brief addressing constitutional questions posed by the new three-prong test for obscenity in Miller v. California. Denying the motion, the Court declined to consider the argument that First Amendment protections are not limited just to serious literature or political works.
New York v. Kirkpatrick
An amicus brief was filed in the U.S. Supreme Court supporting a challenge to a New York state statute that raised a legal presumption that those lending or selling "obscene” material—in this case Zap Comix by the artist Robert Crumb—did so with knowledge of its content and character. The Court declined to review the case.
Jenkins v. Georgia
An amicus brief was filed in the U.S. Supreme Court urging the reversal of various convictions in Georgia resulting from showing the movie Carnal Knowledge in violation of the state obscenity statute. The Court found that the film was not obscene under the new test for obscenity in Miller v. California.
Hamling v. United States
An amicus brief was filed in the U.S. Supreme Court asking for a clarification of what "guilty intent” was required for a conviction under obscenity statutes. The Court held that convictions would stand regardless of whether or not the defendants believed the materials were obscene.
Moore v. Younger
In the federal court litigation begun in 1972, the Foundation and other plaintiffs were ordered to file a second lawsuit in California state court, so that the state system could first interpret for itself the California harmful matter law. The decision eventually issued by California’s Los Angeles County Superior Court became the basis for the final outcome in the matter, namely, the attorney general’s recognition that California librarians were exempt from the statute.
Knopf v. Colby
An amicus brief was filed in the U.S. Supreme Court (in cooperation with the Association of American Publishers and the American Booksellers Association) urging the Court to review the decision of the U.S. Court of Appeals for the Fourth Circuit requiring a redaction of certain portions of the published text of The CIA and the Cult of Intelligence. The Court declined to review the decision.
Smith v. United States
A grant was awarded to support an appeal to the U.S. Court of Appeals for the Eighth Circuit seeking to reverse a conviction under the Comstock Act. The appeal argued that applying the federal act essentially nullified Iowa-based community standards for obscenity that were embodied in the less restrictive Iowa obscenity statute.
Smith v. United States
Continuing its involvement in this case, an amicus brief was filed in the U.S. Supreme Court to support an appeal of the decision of the U.S. Court of Appeals for the Eighth Circuit affirming the federal Comstock Act conviction. The Supreme Court held that state law cannot define community standards for a prosecution under federal obscenity law. Community standards are questions of fact to be resolved by the federal jury.
Harry Reems legal defense
Best known as the male lead in Deep Throat, Reems was charged with conspiracy to transport obscenity across state lines. He and others were convicted, but the indictments were eventually dropped after a retrial was granted. The FTRF contributed to support the actor’s defense.
Right to Read Defense Committee of Chelsea v. School Committee of Chelsea
A grant was awarded to aid Chelsea (MA) High School librarian Sonja Coleman and other plaintiffs in a federal lawsuit to resist efforts of the Chelsea School Board to remove from the high school library an anthology of student literary works entitled Male and Female Under 18. The controversy surrounded a poem, "The City to a Young Girl,” written by a 15 year old New York City student who used sexual slang words and complained about sex starved construction workers who saw the author only as "a good piece of meat.”
Niemi v. National Broadcasting Co.
Amicus briefs were filed in the California Court of Appeal and in the California Supreme Court to support the dismissal of a civil action by Niemi seeking to hold NBC responsible for the criminal conduct of third parties allegedly inspired by the violence depicted in a television program. After the Court of Appeal reversed the lower court’s dismissal of the action and the California Supreme Court refused to review that decision, an application for review was filed in the U.S. Supreme Court. The FTRF filed an amicus brief in support of the application, but the Court declined to review the case.
Flynt v. Ohio
An amicus brief was filed in the Ohio Court of Appeal (in cooperation with the Association of American Publishers, the American Society of Newspaper Editors, the International Periodical Distributors Association, the Council for Periodical Distributors Associations, and the American Booksellers Association) to protest the use of Ohio’s "organized crime” law to chill freedom of expression. Flynt’s conviction was eventually reversed.
Right to Read Defense Committee of Chelsea v. School Committee of Chelsea
Continuing its involvement in this case, begun in 1977, an additional grant was awarded to assist in an action to enjoin removal of the book Male and Female Under 18 from the shelves of the Chelsea (MA) High School library. Ultimately, the U.S. District Court for Massachusetts returned the book to the shelves.
Pico v. Board of Education, Island Trees Union Free School District No. 26
An amicus brief was filed in the U.S. District Court for the Eastern District of New York (in cooperation with the New York Library Association, the Long Island School Media Association, the Nassau County Library Association, the Suffolk County Library Association, and the Suffolk School Library Media Association) supporting a student’s challenge of the constitutionality of a school board's removal of Soul on Ice, A Hero Ain’t Nothing But a Sandwich, The Fixer, Go Ask Alice, Slaughterhouse-Five, The Best Short Stories by Negro Writers, Black Boy, Laughing Boy, and The Naked Ape from the district’s high school and junior high school libraries.
Niemi v. National Broadcasting Co.
Continuing its involvement in this case, begun in 1977, an amicus brief was filed in the U.S. Supreme Court supporting an application to stay the commencement of a trial in this action involving broadcaster liability. The Court denied the stay. During the trial, the plaintiff limited its claim against NBC to one of negligence, and the court dismissed lawsuit for a second time. On appeal, the California Court of Appeal affirmed the dismissal.
Federal Communications Commission v. Pacifica Foundation
An amicus brief was filed in the U.S. Supreme Court (in cooperation with the American Civil Liberties Union, the Association of American Publishers, the Citizens Communication Center, P.E.N. American Center, and Poets and Writers, Inc.) supporting a challenge to an FCC order as to "possible” sanctions against a radio station for its afternoon broadcast of comic George Carlin’s "seven dirty words” monologue. The Court upheld the FCC order.
St. Martin’s Press v. Carey
An amicus brief was filed in the U.S. Court of Appeals for the Second Circuit (in cooperation with the Association of American Publishers and the American Booksellers Association) in a case seeking to enjoin prosecutors from using a New York state penal statute—which forbid promoting a sexual performance by a child—to restrict the distribution of Show Me! and other sex education publications. The appellate court ruled that the lawsuit did not present a "case or controversy.” The court dismissed the complaint on the ground that the publications were never intended to be prosecuted and did not come within the language of the statute.
Lamb v. Independent School District 719
The Minnesota Civil Liberties Union was awarded a grant to provide expert witnesses in a federal lawsuit challenging the school board’s removal of Ms. magazine from the Prior Lake (MN) High School library. Ultimately, the U.S. District Court dismissed the case when it found there was no plaintiff in the class action lawsuit representative of the class of affected students.
American Booksellers Association v. Leech
A grant was awarded to the Tennessee Library Association allowing it to participate in a constitutional challenge of a newly enacted sweeping state criminal obscenity statute.
Spokane Arcades v. Ray
The Washington Library Association was awarded a grant for legal expenses in preparing an amicus brief filed in a federal lawsuit seeking to invalidate a "moral nuisance” law passed by Washington state voters in a ballot referendum.
Bicknell v. Vergennes Union High School Board of Directors
A grant was awarded to the Vermont Civil Liberties Union to assist Elizabeth Phillips, the Vergennes (VT) Union High School librarian, as well as students and other plaintiffs, in a federal lawsuit challenging the school board’s removal of The Wanderer and Dog Day Afternoon from the school library. Bicknell was eventually decided with the Pico case (see 1978) by the U.S. Court of Appeals for the Second Circuit, which distinguished the two cases on the basis of the motives attributable to the respective school boards. The dismissal of the Bicknell lawsuit was upheld because the board based its removals on objections to the "vulgar and indecent language” contained in the books, rather than their ideas.
Pratt v. Independent School District 831
A grant to the Minnesota Civil Liberties Union aided the plaintiff students in a lawsuit challenging a school board order forbidding classroom use of the film The Lottery in Forest Lake, Minnesota. The U.S. Court of Appeals for the Eighth Circuit eventually upheld the challenge, finding the school board had violated the First Amendment because it banned the film on the basis of its "ideological content.”
Lo-Ji Sales v. New York
An amicus brief was filed in the U.S. Supreme Court (in cooperation with the American Booksellers Association, the Association of American Publishers, the Council for Periodical Distributors Associations, the International Periodical Distributors Association, and the National Association of College Stores) defending the principle that allegedly obscene materials may not be seized unless a "neutral and detached magistrate” has "focused searchingly” on each item "taken as a whole.” The Court upheld that principle in unanimously overturning the obscenity conviction.
Penthouse v. McAuliffe
An amicus brief was filed in the U.S. Court of Appeals for the Fifth Circuit (in cooperation with the American Booksellers Association, the Association of American Publishers, the Council for Periodical Distributors Associations, the International Periodical Distributors Association, and the National Association of College Stores) resisting the misapplication of the "taken as a whole” requirement contained in the Miller v. California test for obscenity. The Fulton County (GA) Solicitor General Hinson McAuliffe sought to apply the requirement to limited or separate portions of certain magazines and anthologies.
Oaks v. City of Fairhope
Claire Oaks, dismissed from her position as librarian of the Fairhope (AL) Public Library, was awarded a grant to help defray her legal expenses in a lawsuit charging that her First Amendment rights had been violated. Oaks eventually reached an out-of-court settlement and was restored to her job.
United States v. The Progressive, Inc.
An amicus brief was filed in the U.S. Court of Appeals for the Seventh Circuit (in cooperation with the Reporters Committee for Freedom of the Press) supporting the appeal by The Progressive magazine of a U.S. District Court order permanently barring the publication of an article on how to build a hydrogen bomb. Ultimately, the Court of Appeals did not rule on any of the issues. After the substance of the article appeared in another periodical, the government dropped its case against The Progressive.
American Booksellers Ass’n v. Leech
Continuing an involvement begun in 1978, an additional grant was awarded to the Tennessee Library Association to continue its challenge to a Tennessee obscenity statute. The Tennessee Supreme Court eventually determined that the statute was unconstitutional.
Zykan v. Warsaw Community School Corp.
The Indiana Civil Liberties Union was awarded a grant to represent a Warsaw (IN) High School student challenging the school board’s ban on classroom use of a textbook, entitled Values Clarification, and other books, such as Growing Up Female in America, The Stepford Wives, Go Ask Alice, and The Bell Jar. The student’s lawsuit also challenged the cancellation of ten elective English courses in subjects such as black literature, science fiction, and Gothic literature, and the firing of two teachers who had taught controversial works.
Vance v. Universal Amusement Co.
An amicus brief was filed in the U.S. Supreme Court (in cooperation with the American Booksellers Association, the Association of American Publishers, and other First Amendment groups) arguing that a Texas "public nuisance” law allowing a court to enjoin any future exhibition of obscene movies if it was shown that the theater had exhibited an obscene movie in the past amounted to "prior restraint” violating the First Amendment. The Court ultimately invalidated the statute on those grounds.
United States v. Giese
An amicus brief was filed in the U.S. Supreme Court (in cooperation with P.E.N. American Center and the American Booksellers Association) arguing that convicting a bookstore proprietor for criminal conspiracy had a devastating effect on the freedom to read and discuss books. The Court declined to review the case.
Bicknell v. Vergennes Union High School Board of Directors
Continuing its involvement with this Vermont school library book removal case, the Vermont Civil Liberties Union was awarded an additional grant to help defray legal expenses incurred in prosecuting an appeal of the district court decision to the U.S. Court of Appeals for the Second Circuit.
Zykan v. Warsaw Community School Corp.
Continuing its involvement in the Indiana school censorship case, begun in 1979, an amicus brief was filed in the U.S. Supreme Court (in cooperation with the National Council of Teachers of English). The decision of the trial court dismissing the lawsuit had been upheld on appeal to the U.S. Court of Appeals for the Seventh Circuit. The Supreme Court ultimately denied review.
Layton v. Swapp
A grant was awarded to Jeanne Layton, director of the Davis County (UT) Public Library, to help defray legal expenses in a lawsuit resulting from her dismissal for refusing to remove Don DeLillo’s Americana from the shelves of the library. Her dismissal was the result of a county commissioner’s complaint. The Foundation offered a challenge grant, matching $2 for every $1 contributed to the Layton defense fund, between June 27 and year’s end.
Layton v. Swapp
Continuing its involvement with this dismissal case, Layton was granted an additional amount to meet her outstanding legal debts.
McKamey v. Mt. Diablo Unified School District
A grant was awarded to the plaintiffs to assist in an action protesting restrictions imposed by the school board on access to Ms. magazine in the Ygnacio (CA) High School library.
Association of American Publishers v. Rendell
A lawsuit was filed (with the Association of American Publishers, the American Booksellers Association, and others) challenging amendments to the Pennsylvania criminal law dealing with the exhibit and display of "explicit sexual materials” to minors. In a decision affirmed on appeal to the U.S. Court of Appeals for the Third Circuit, the federal district court abstained from the case. A related challenge in state court concluded with a determination that the statute was constitutional.
Penthouse v. McAuliffe
Continuing an involvement with this case, additional grants were awarded to support the lawsuit against the Fulton County (GA) Solicitor General. Ultimately, the U.S. Court of Appeals for the Fifth Circuit ruled that an entire magazine issue constitutes a work that must be "taken as a whole” when determining whether the magazine possesses serious value under the third prong of the Miller v. California test for obscenity. The court found two of the three magazines at issue in the case obscene. Additional proceedings in the U.S. Supreme Court were discontinued.
Saryn Paris grant
Assistance was awarded to the publisher of Jerry Falwell: An Unauthorized Profile.
Board of Education, Island Trees Union Free School District No. 26 v. Pico
Continuing an involvement with this case, begun in 1978, an amicus brief was filed in the U.S. Supreme Court (in cooperation with the American Library Association and the New York Library Association) urging the Court to settle the standard for judicial review to be applied in school library book removal cases.
Layton v. Swapp
Additional grants were awarded to settle Jeanne Layton’s remaining legal debts, concluding FTRF involvement with this case, begun in 1980. Layton ultimately won reinstatement as director of the Davis County (UT) Public Library.
New York v. Ferber
The Media Coalition was given a grant to prepare an amicus brief addressing the impact of a New York state child pornography statute on publishers, booksellers, and librarians. Ultimately, the U.S. Supreme Court upheld the statute in question, deciding that child pornography is a category of speech excluded from First Amendment protection.
Tattered Cover Bookstore v. Tooley
An amicus brief was filed in a challenge to a Colorado minors access law. Ultimately, the Supreme Court of Colorado held the act unconstitutional. It found that the provisions of the statute designed to restrict children’s access to sexually explicit materials were overly broad and infringed adults’ rights. [See also Tattered Cover Bookstore, Inc. v. City and County of Denver, 2000.]
Board of Education, Island Trees Union Free School District No. 26 v. Pico
Still involved in this 1978 case, a grant was awarded to the New York Civil Liberties Union to continue the school library book removal challenge. Ultimately, in a 5–4 decision, the U.S. Supreme Court upheld the students’ challenge to the school board’s actions. A majority of the Court held that the First Amendment is implicated when a school board removes books arbitrarily. The plurality opinion by Justice Brennan declared, "If petitioners intended by their removal decision to deny” students "access to ideas with which petitioners disagreed ... then petitioners have exercised their discretion in violation of the Constitution.”
McKamey v. Mt. Diablo Unified School District
An additional grant was awarded in this school library restriction case, first started in 1981. Ultimately, a California Superior Court struck down the school district requirement that students get parental permission before reading Ms. magazine in the school library.
Stark v. Special School District No. 1; Stark v. Independent School District No. 179; and Stark v. Osseo School District
Assistance was granted to the Minnesota Civil Liberties Union to defend teachers’ rights to invite outside speakers on alternative lifestyles into public school classes and to uphold the speakers’ rights to address students. Stark’s lawsuits were eventually settled favorably. In the case involving Osseo School District, Stark was permitted to speak on alternative lifestyle issues and the school district agreed to adopt a policy on speakers consistent with First Amendment guarantees.
Robertson v. Special School District No. 1
A challenge grant was awarded to the Student Press Law Center matching $1 for $1 all funds raised during the year to support litigation over student press rights in Minnesota.
Janklow v. Dyer
Donna Dyer was awarded a grant to assist her defense in a libel suit filed by South Dakota Governor William J. Janklow in connection with a book In the Spirit of Crazy Horse, by Peter Matthiessien, sold by Dyer in Hot Springs, South Dakota.
Peterzell v. Faurer
Support was given to an American Civil Liberties Union National Security Project litigation effort to invalidate actions by the U.S. National Security Agency withdrawing the personal documents of cryptologist William Friedman from open access shelves at the Virginia Military Institute’s George C. Marshall Research Library. The cryptologist’s letters had been used in the research and writing of James Bamford’s The Puzzle Palace.
M.S. News Co. v. Casado
An amicus brief was filed in the U.S. Court of Appeals for the Tenth Circuit supporting a challenge to a local ordinance in Wichita, Kansas, banning open display of sexually explicit materials. The appellate court upheld the ordinance.
American Library Association v. Faurer (formerly Peterzell v. Faurer)
Continuing its involvement in this case concerning a cryptologist’s personal papers, a grant was given to the American Library Association, the District of Columbia Library Association, and the Virginia Library Association for expenses incurred in the litigation. A grant also was given to the American Civil Liberties Union National Security Project for its role in the legal action.
American Booksellers Association v. Hudnut
An amicus brief was filed on behalf of the Indiana Library Association and the Indiana Library Trustees Association supporting a constitutional challenge of an Indianapolis (IN) anti-pornography ordinance. The ordinance outlawed "pornography” defined as "graphic, sexually explicit subordination of women, whether in pictures or in words,” presenting women as sex objects, or as enjoying pain, humiliation, or servility. The challenge argued that the ordinance imposed viewpoint discrimination.
English v. Evergreen School District
A grant was awarded to support a lawsuit challenging the removal of books from a school library in Washington state. The case was eventually settled when the school board returned all books, including two books on homosexuality that the school board had especially opposed. In accord with the settlement, policies for handling complaints about instructional materials were rewritten.
Janklow v. Viking Press
Continuing its involvement in this matter involving Governor William J. Janklow of South Dakota, an amicus brief was filed supporting the publisher, booksellers, and Peter Matthiessien, author of In the Spirit of Crazy Horse, in their defense against the lawsuit accusing them of libel. Ultimately, the court dismissed the libel suit as asserted against the publisher on the basis that the alleged defamatory statements were "neutral reportage” accurately repeating the statements of another.
Bullfrog Films, Inc. v. Wick
A grant was given to the Center for Constitutional Rights to support a lawsuit to invalidate regulations promulgated by the U.S. Information Agency denying "certificates of educational character” to U.S. documentary films judged to be misrepresentative of the United States, thereby limiting their access to foreign markets. An amicus brief also was filed in the matter.
Maryland v. Macon
An amicus brief was filed in the U.S. Supreme Court supporting a bookstore clerk’s appeal of his conviction for distributing obscenity. The brief argued that the arrest of the clerk without first obtaining a court-issued warrant constituted a "prior restraint” violating the First Amendment. Police "purchased” the obscene magazine and, without obtaining a review of the material by a court, took the clerk into custody. The Court eventually ruled that the risk of "prior restraint” did not come into play where the police purchased the materials in question.
Brockett v. Spokane Arcades, Inc.
An amicus brief was filed in the U.S. Supreme Court in support of a constitutional challenge to a Washington state obscenity statute, urging that its definition of "lewd matter” was overbroad and reached materials that arouse nothing more than a normal interest in sex. The Court eventually ruled that the statute should not be invalidated in its entirety but, rather, only insofar as it reached constitutionally protected materials.
American Library Ass’n v. Faurer (formerly Peterzell v. Faurer)
In further involvement in this case concerning a cryptologist’s personal papers, an additional grant was given to the American Civil Liberties Union National Security Project to support the lawsuit against the U.S. National Security Agency. Ultimately, on the appeal, U.S. Circuit Court Judge Ruth Bader Ginsberg ruled that the library associations and other plaintiffs lacked standing to bring their lawsuit in the first instance. In the proceedings below, the U.S. District Court for the District of Columbia had ruled that the U.S. National Security Agency had authority to withdraw the papers in question from the Virginia Military Institute library.
American Booksellers Ass’n v. Hudnut
Further involvement in this constitutional challenge to the Indianapolis anti-pornography ordinance led to an amicus brief being filed in the U.S. Court of Appeals for the Seventh Circuit. Ultimately, the decision of the court below, which struck down the law, was affirmed on the appeal. The appellate court stated that the ordinance impermissibly established an "approved” view of women and how they react in sexual encounters, and banned sexually explicit words and images that did not adhere to that view. The U.S. Supreme Court affirmed the decision.
Illinois v. Heinrich
A grant was awarded to the DePaul University College of Law to cover printing costs incurred in challenging a criminal libel law.
Pagitt v. Independent School District No. 270
The Minnesota Coalition Against Censorship and the Minnesota Civil Liberties Union received a grant to assist two high school students prohibited, even before the start of the school day, from distributing a religious newspaper to fellow students. The lawsuit brought by the students was dismissed as moot after they had graduated.
American Council of the Blind v. Boorstin
An amicus brief was filed in support of a lawsuit challenging, as discrimination against protected speech, a Library of Congress decision to cease publication of Playboy magazine in Braille. Ultimately, the U.S. District Court for the District of Columbia ruled that the library had violated the First Amendment rights of blind people.
Faulkenberry v. Board of Education, Sallisaw Public Schools
Legal counsel and financial assistance was awarded to parents protesting a school board’s removal of J.D. Landis’ The Sisters Impossible from the elementary school library. After a lengthy struggle and, eventually, a lawsuit, the school board agreed to return the book to the library shelves. It also agreed to follow ALA and Oklahoma Library Association recommended review procedures for library materials and pay a significant portion of the plaintiffs’ legal expenses.
Bullfrog Films, Inc. v. Wick
Continuing an involvement begun in 1984, an additional grant was awarded to the Center for Constitutional Rights to reimburse litigation expenses in this challenge to regulations promulgated by the U.S. Information Agency.
Fraser v. Bethel School District No. 403
An amicus brief was filed in a challenge to the two-day suspension of a high school student who used sexual puns in a student-government nominating speech at a school-sponsored, but voluntary, assembly of students. Ultimately, the U.S. Supreme Court reversed lower court decisions enjoining the student’s suspension. It does not follow, the Court held, that "simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, that the same latitude must be permitted to children in a public school.”
McCarthy v. Fletcher
A grant was given to the American Civil Liberties Foundation of Southern California to support a lawsuit filed by Lee McCarthy, a Wasco (CA) Union High School teacher, and others challenging the school board’s prohibition against teaching John Gardner’s Grendel in a senior English class without first obtaining the consent of every parent.
Bystrom v. Fridley High School Independent School District No. 14
A grant was given to the Minnesota Civil Liberties Union to assist in the defense of students who published an underground newspaper with "lewd” content, allegedly potentially inciting violence. The students brought the lawsuit challenging a school policy under which officials reviewed the publication and blocked its distribution on school premises.
Maine Citizens Against Government Censorship
A grant was awarded on behalf of the Maine Library Association supporting a successful fight against a proposed law to ban the sale of sexually explicit materials.
Playboy Enterprises, Inc. v. Meese
An amicus brief was filed opposing actions of the Attorney General’s Commission on Pornography warning retailers to cease distributing materials that it judged might be pornographic. A federal district court eventually ruled that the commission’s actions violated the First Amendment.
Pope v. Illinois
An amicus brief was filed in the U.S. Supreme Court challenging the use of community standards, rather than a generalized "reasonable person” standard, in the third prong of the test in Miller v. California used to judge whether an allegedly obscene work has "serious literary, artistic, political, or scientific value.” Ultimately, the Court held that only the first and second prongs of the test—appeal to prurient interest and patent offensiveness—should be decided with reference to community standards. It upheld, however, the obscenity convictions in question.
Bullfrog Films, Inc. v. Wick
Continuing involvement in this case, begun in 1984, another grant was given to the Center for Constitutional Rights for legal expenses in its challenge of regulations promulgated by the U.S. Information Agency.
Bystrom v. Fridley High School Independent School District No. 14
Supplementing its first grant to the Minnesota Civil Liberties Union, in 1986, a second grant was given to further assist the civil liberties group in representing students in their challenge of a school policy restricting an underground newspaper. The U.S. Court of Appeals for the Eighth Circuit eventually upheld the school policy. The court found that prior restraints in the high school context are not per se unconstitutional, and that the government may regulate the distribution of written materials that fall within guidelines outlining what is "obscene to minors,” libelous, pervasively indecent or vulgar, invading privacy, or advertising products or services not permitted to minors by law.
McCarthy v. Fletcher
Continuing its involvement in this matter, begun in 1986, an amicus brief was filed and an additional grant was given to the American Civil Liberties Foundation of Southern California in support of the challenge to a school board action banning Grendel. Ultimately, the California Court of Appeal ruled that school boards do not enjoy absolute discretion to remove books. Reversing the lower court’s dismissal of the lawsuit, the appellate court held that improper motives violate the First Amendment and that the plaintiffs had a right to probe further into the motives behind the banning.
Meese v. Keene
An amicus brief was filed in the U.S. Supreme Court urging the Court to uphold an injunction against enforcement of the Foreign Agents Registration Act used to require labeling, as "political propaganda,” films about acid rain produced by the National Film Board of Canada. The Court reversed the decision granting the injunction.
Smith v. Board of Commissioners, Mobile County
An amicus brief was filed in the U.S. Court of Appeals for the Eleventh Circuit (in cooperation with the Association of American Publishers) supporting the appeal of a decision that found that textbooks used at various grade levels taught the "religion” of secular humanism and ordered their removal from the school curriculum. The appellate court reversed the lower court ruling. It held that, as long as the school was motivated by a secular purpose, it didn’t matter whether the curriculum and texts shared ideas held by one or more religious groups.
American Booksellers Association v. Virginia
An amicus brief was filed in the U.S. Supreme Court supporting a challenge to a Virginia "harmful to minors” law restricting the display of "harmful” materials. The Court ordered a return of the case to the Virginia Supreme Court for a ruling in the matter. The Virginia Attorney General had urged that the law be construed narrowly and interpreted to apply to the most mature minors. The Virginia Supreme Court accepted that construction.
Randall v. Meese
An amicus brief was filed (in cooperation with the American Association of University Professors and other groups) in support of author Margaret Randall’s appeal for permanent residency in this country because her writings criticized the role of the United States in Vietnam and the actions of the National Guard at Kent State (OH) University. Ultimately, efforts to deport Randall were abandoned after Congress removed "ideology” as a ground for excluding aliens from the United States under the McCarran-Walter Act.
Bullfrog Films, Inc. v. Wick
In a continuation of its involvement, another grant was awarded to the Center for Constitutional Rights to defray legal costs in the U.S. Information Agency challenge. Ultimately, the regulations denying "certificates of educational character” to films judged to be misrepresentative of the United States were invalidated. The U.S. Court of Appeals for the Ninth Circuit upheld a ruling by the U.S. District Court for the Central District of California that such regulations violated the First Amendment. Subsequently, the lower court invalidated a second attempt to promulgate similar regulations.
Village Books v. City of Bellingham
A lawsuit was filed (with Village Books, the American Booksellers Association, the Pacific Northwest Booksellers Association, the Washington State Library Association, the Association of American Publishers, and three individuals) challenging the constitutionality of a city anti-pornography initiative in Bellingham, Washington, targeting sexually explicit speech involving the subordination of women. The challenge was successful and the ordinance ruled unconstitutional.
Virgil v. School Board of Columbia County
An amicus brief was filed in a federal district court challenge to a school board’s decision to remove from classroom use a literature textbook entitled Humanities: Cultural Roots and Continuities. Parents had objected to alleged vulgar and sexually explicit language contained in excerpts from the classic Greek comedy Lysistrata and Chaucer’s The Miller’s Tale. Ultimately, the U.S. Court of Appeals for the Eleventh Circuit upheld the school board’s action. The court focused on the fact that the books were used within the curriculum and thus bore the school’s stamp of approval. It found that the reason for the removal—sexuality and vulgar language—was a legitimate pedagogical concern.
American Library Ass’n v. Thornburgh
A lawsuit was filed (with the American Library Association, the American Society of Magazine Editors, the American Society of Magazine Photographers, the Council for Periodical Distributors Associations, the International Periodical Distributors Association, the Magazine Publishers of America, Satellite Broadcasting and Communications of America, and the American Booksellers Association) challenging the constitutionality of the record-keeping, labeling, and forfeiture provisions contained in the Child Protection and Obscenity Enforcement Act, and seeking to enjoin enforcement of the statute.
FW/PBS, Inc. v. City of Dallas
An amicus brief was filed in the U.S. Supreme Court (in cooperation with the American Booksellers Association, the Council for Periodical Distributors Association, and others) in a constitutional challenge of a Dallas (TX) regulation of "sexually oriented businesses” that denied licenses to "adult” book and video retailers on the basis of a single past misdemeanor conviction. The Court’s eventual ruling did not reach the First Amendment issues. Nevertheless, the Court did find that the licensing scheme gave local officials too much discretion to inflict barriers on speech.
Webster v. Reproductive Health Services
An amicus brief was filed (with the American Library Association) in the U.S. Supreme Court in support of a constitutional challenge of a Missouri statute prohibiting the expenditure of public funds to "encourage or counsel” woman about abortion. The Court eventually determined that, owing to procedural considerations in the case, the controversy over funds for encouraging or counseling women about abortion was moot.
American Library Association v. Thornburgh
In further involvement in this case, begun in 1989, the FTRF opposed the government’s appeal of the district court decision striking down the record-keeping and labeling provisions of the Child Protection and Obscenity Enforcement Act. An appeal was filed by the Foundation limited to the adverse ruling on post-conviction forfeiture provisions. In due course, the U.S. Court of Appeals for the District of Columbia ruled that the FTRF and other plaintiffs did not have standing to challenge the forfeiture provisions of the act. It also ruled that the government’s appeal of the district court decision was moot because of the subsequent enactment of the Child Protection Restoration and Penalties Enhancement Act, which was intended to correct the constitutional defects highlighted in this litigation.
United States v. Eichman
An amicus brief was filed in the U.S. Supreme Court supporting a successful First Amendment challenge to a new federal anti-flag burning statute. The Court upheld the lower court’s dismissal of charges brought under the Flag Protection Act of 1989, passed by Congress in response to the Court’s flag desecration decision issued that year.
Rust v. Sullivan
An amicus brief was filed in the U.S. Supreme Court supporting a challenge to regulations that prohibited organizations receiving federal funds from disseminating materials advocating abortion as a means of family planning. Ultimately, the Court upheld the regulations, finding that they did not discriminate on the basis of viewpoint, but simply amounted to the government’s funding of one activity to the exclusion of another. Justice Blackmun filed a dissenting opinion.
Davis-Kidd Booksellers, Inc. v. McWherter
A lawsuit was filed challenging a Tennessee "harmful to minors” statute similar to that in American Booksellers Ass’n v. Virginia (see 1987). The challenge targeted the statute’s prohibition against display of non-obscene materials "harmful to minors” in any place where minors have lawful access, as well as issues surrounding the knowing exhibition of such materials.
Tennessee v. Marshall
An amicus brief was filed in a constitutional challenge involving the question of whether the Tennessee constitution provided broader free speech guarantees than the First Amendment to the U.S. Constitution. The Tennessee Supreme Court eventually ruled that the Free Expression Clause of the Tennessee constitution must be read to have substantially the same requirements with respect to obscenity as the First Amendment.
American Library Ass’n v. Barr
A lawsuit was filed (with the American Library Association and several media groups) challenging the Child Protection Restoration and Penalties Enhancement Act. The new act was intended to correct constitutional defects in the Child Protection and Obscenity Enforcement Act challenged in the earlier American Library Ass’n v. Thornburgh suit (see 1989 and 1990).
R.A.V. v. City of St. Paul
An amicus brief was filed in the U.S. Supreme Court addressing only issues involving the "overbreadth doctrine” raised in a constitutional challenge of a St. Paul (MN) ordinance prohibiting the posting or display of symbols and signs that may cause imminent or profound offense to any individual based on race, religion, or gender. The Court eventually struck down the "hate symbol” ordinance. Its reasoning, however, bore little resemblance to established First Amendment doctrine or any of the arguments in the amicus brief.
Kreimer v. Bureau of Police for Morristown
An amicus brief was filed in the U.S. Court of Appeals for the Third Circuit in a case brought by a homeless person denied access to the Morristown (NJ) Public Library. The Foundation, which took a position different from that of the public library, proposed a neutral framework of legal principles by which the court, it argued, should determine the rights in question. The court was urged to recognize a First Amendment right to receive information that only may be denied by a public library for good reason; the library, as a limited public forum, may adopt reasonable rules governing use of facilities, supporting its substantial interest in providing access to information for all. Adopting this basic analysis, the appellate court eventually upheld library rules that required patrons to be reading or otherwise using library materials while in the library, prohibited noisy or boisterous activities, and permitted the removal of patrons with offensive bodily hygiene.
Alexander v. United States
An amicus brief was filed in the U.S. Supreme Court (in cooperation with the American Library Association and the Association of American Publishers) in a case challenging the use of the forfeiture provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO) to shut down speech-related businesses convicted of no more than isolated obscenity violations, suppressing future lawful speech. The Court eventually held that the use of RICO did not violate the First Amendment because the forfeiture orders did not expressly forbid, or require the government’s prior approval for, future expressive activities.
Soldier of Fortune Magazine v. Braun
An amicus brief was filed supporting the Soldier of Fortune publisher’s application to the U.S. Supreme Court seeking review of a decision upholding an award of damages for the magazine’s role in publishing an ad that allegedly led to the hiring of an assassin to commit murder. The Court declined to review the case.
Davis-Kidd Booksellers, Inc. v. McWherter
In further involvement in this matter, the FTRF opposed the appeal to the Tennessee Supreme Court of a Chancery Court decision. The Chancery Court found the law to be unconstitutionally vague only with respect to the meaning of "excessive violence” in the definition of "harmful” materials. The Foundation and other plaintiffs filed an appeal on issues concerning the display and knowing exhibition of materials deemed "harmful to minors.” Ultimately, the Tennessee Supreme Court upheld the Chancery Court decision. Addressing the display issues, the state high court found that the display provisions could be narrowly construed to apply only to materials "which lack serious literary, artistic, political, or scientific value for a reasonable 17-year-old minor.”
Pampano Books and Video v. Satz
An amicus brief was filed in the U.S. Court of Appeals for the Eleventh Circuit supporting the claim by three bookstores in the Fort Lauderdale (FL) area that prosecutors had engaged in a pattern of harassment to close down the businesses, regardless of the lawfulness of the materials they sold. The lower court had refused to enjoin the prosecutors. The issues on appeal concerned the government’s mixed motives in suppressing speech. The amicus brief argued that, if any part of the government’s motive was suppression, its actions were unconstitutional. Ultimately, the appellate court summarily rejected those arguments, and affirmed, without opinion, the lower court decision.
American Library Association v. Reno (formerly American Library Ass’n v. Barr)
Continuing its involvement in this lawsuit, begun in 1989, challenging the record-keeping provisions of the Child Protection Restoration and Penalties Enhancement Act, the Foundation opposed the government’s appeal of the decision of the U.S. District Court for the District of Columbia invalidating the act.
Brown v. Woodland Joint Unified School District
An amicus brief was filed (with People for the American Way) in the U.S. Court of Appeals for the Ninth Circuit on the appeal in a lawsuit brought by the American Family Association challenging the use of the Impressions textbook series in the Woodland, California, school system. The lower court rejected the conservative religious group’s claim that the series promoted the religion of witchcraft and, therefore, violated the First Amendment. Affirming the lower court decision, the appellate court held squarely that the textbook was not intended to promote witchcraft as a religion, and that an "objective” elementary school child would not view the activities and materials in the series as an endorsement of witchcraft or a disapproval of other religions.
In Re North
The Foundation and the Association of American Publishers wrote to the judge of the U.S. Court of Appeals for the District of Columbia Circuit scheduled to hear an emergency motion by the Reporters Committee for Freedom of the Press and other organizations seeking to unseal the report of Independent Prosecutor Lawrence Welsh concluding his investigation of the Iran-Contra affair and the role of Oliver North. The FTRF/AAP letter supported the emergency motion, which was granted within hours after the letter was delivered to the judge via one-day mail.
Knox v. United States
An amicus brief was filed (with members of the Media Coalition) in the U.S. Supreme Court seeking the reversal of a decision upholding a federal child pornography conviction. The crime involved the alleged "lascivious exhibition of genitals or pubic area” in videotapes depicting fully clothed female minors.
Case v. Unified School District No. 233
$2,500 was authorized to assist the American Civil Liberties Union to pay for legal fees incurred in opposing the removal of Annie on My Mind from the Olathe school district’s libraries. The school board’s removal order covered not only copies of the books recently donated by Project 21, a gay and lesbian group, but also copies purchased by the district that had been on the shelves of the libraries for many years. The U.S. District Court for the District of Kansas eventually ruled that the removal was unconstitutional
Knox v. United States
After the U.S. Solicitor General shifted the government’s position into alignment with some of the Foundation’s contentions on the appeal filed in 1993 of a child pornography conviction, the U.S. Supreme Court vacated the conviction and remanded the case to the lower court. On the redetermination of the matter by the U.S. Court of Appeals for the Third Circuit, an amicus brief (with members of the Media Coalition) was filed. Ultimately, the appellate court reaffirmed its original interpretation of the federal child pornography statute, concluding that even depictions of fully clothed minors can be a crime.
National Treasury Employees Union v. United States
An amicus brief was filed in the U.S. Supreme Court in a challenge of the government’s ban on accepting honoraria offered to federal employees for speeches and articles unrelated to their government work. The case explored how financial burdens, as opposed to outright suppression of speech, impacts First Amendment rights, and addressed the government’s contention that the ban on payment to federal employees for speech avoids the appearance of impropriety. The Court eventually ruled that the ban infringed the employees’ free speech rights.
Debbie Denzer dismissal
$2500 was given to the American Civil Liberties Union for expenses incurred in filing a lawsuit to reinstate Denzer after she was fired from her job as a school library aide in Kallispell, Montana. In response to a request from two seventh grade students, Denzer provided two books on witchcraft from her personal home library. Parents of the students deemed the books to be unsuitable for seventh graders and complained to the school district. Denzer eventually received a favorable settlement in the case.
X-Citement Video, Inc. v. United States
An amicus brief was filed in the U.S. Supreme Court in an action interpreting the federal statute criminalizing the "knowing” receipt, distribution, or reproduction of visual depictions of child pornography. The Court was asked to interpret the statute to require actual knowledge that participants or models are minors, rather than a lesser level of knowledge involving mere recklessness. The Court eventually ruled that proof of actual knowledge was required.
American Library Ass’n v. Reno (formerly American Library Ass’n v. Barr)
Continuing an involvement begun in 1989, $3000 was awarded for legal expenses in the case challenging the record-keeping provisions of the Child Protection Restoration and Penalties Enhancement Act. On the government’s appeal of the federal district court decision invalidating the act, the U.S. Court of Appeals for the District of Columbia reversed the lower court. Ultimately, the U.S. Supreme Court declined to review the case.
Playboy v. Deters
The prosecuting attorney for Hamilton County, Ohio, was sued by the FTRF (with Playboy Enterprises, Inc., and eleven First Amendment organizations) after he sent a letter to a Barnes & Noble bookstore in Cincinnati stating that several magazines, including the January, 1995, issue of Playboy, were "harmful to juveniles” and should not be displayed. The lawsuit challenged the prosecutor’s action as a "prior restraint” violating the First Amendment and sought an injunction, as well as judicial review, of the Ohio display statute. The U.S. District Court for the Southern District of Ohio eventually ruled that the prosecuting attorney’s letter was null and void. It ordered the letter withdrawn and assessed costs against the prosecutor. The court refused to review the "harmful to juveniles” statute, however, since a state court had not yet had the opportunity to do so.
Brown and Williamson v. Regents of University of California
An amicus brief was filed in a lawsuit by a tobacco company over documents said to reveal that the tobacco industry knew of a link between smoking and cancer earlier than had been previously understood. Alleging they were stolen, Brown and Williamson sought to recover documents from the University of California at San Francisco (UCSF) and to obtain the names of university library users who had access to them. The Foundation’s brief focused on issues concerning the confidentiality of library use. Ultimately, the California Superior Court in San Francisco refused to block the UCSF from making the documents available to the public. The court, however, did not address the confidentiality issues.
Cohen v. San Bernardino Valley College
An amicus brief was filed in the U.S. Court of Appeals for the Ninth Circuit (in cooperation with the Thomas Jefferson Center for Protection of Free Expression and the American Association of University Professors) in a lawsuit testing the constitutionality of restrictions placed on classroom speech. The lower court had determined that a professor’s selection of topics for classroom discussion, his choice of language, and his teaching style constituted sexual harassment by creating a hostile learning environment. Ultimately, the appellate court reversed that decision, stating that the college’s "hostile learning environment” policy was too vague as applied to Cohen.
Alliance for Community Media v. Federal Communications Commission
An amicus brief was filed in the U.S. Supreme Court in a constitutional challenge of provisions of the Cable Television Consumer Protection and Competition Act of 1992. The act compelled any cable operator to either ban or segregate on a separate channel all sexually related material that the cable operator "reasonably believes” to be "patently offensive.” A viewer wishing to see programming on the segregated channel was required to notify the cable operator. The Court eventually struck down the requirement that cable operators ban or segregate "patently offensive” materials, as well as one other provision of the act.
American Library Ass’n v. United States Department of Justice
A complaint was filed (with the American Library Association, the American Booksellers Association, America Online, People for the American Way, and numerous other organizations) successfully challenging the constitutionality of the Communications Decency Act of 1996. Represented by general counsel Bruce Ennis of Jenner & Block, the American Library Association and the FTRF took the lead in developing the factual background for the case. The Communications Decency Act criminalized "indecent” and "patently offensive” communications on the Internet. Based on the First Amendment, the lawsuit urged that the government cannot reduce adult reading material to a level appropriate only for children, and that the vague language of the statute had a chilling effect on speech.
American Library Ass’n v. Pataki
A lawsuit was filed (with the American Library Association, the New York Library Association, and others) challenging a New York statute proscribing online dissemination of materials "harmful to minors.” The lawsuit was based on the First Amendment of the U.S. Constitution, as well as the Commerce Clause, which forbids one state from imposing unreasonable restrictions on the conduct of persons in other states. Ultimately, the U.S. District Court for the Southern District of New York enjoined enforcement of the New York statute on Commerce Clause grounds. Since the decision of the U.S. Supreme Court inUnited States Department of Justice v. American Library Ass’n—the ALA’s challenge to the Communications Decency Act—was then still awaited, the district court inPatakideclined to address the First Amendment issues.
Playboy Entertainment Group, Inc. v. United States
An amicus brief was filed in the U.S. District Court for the District of Delaware in a challenge to the provisions of the Telecommunications Act of 1996 requiring that "indecent” broadcasts be scrambled or blocked so cable viewers can receive no portion of audio or video unless they specifically subscribe to the program. The brief argued that the statute was unconstitutionally vague and attempted to usurp the role of parents, since lockboxes were the appropriate "least restrictive” means to assure that children were not exposed to restricted programs. An adverse decision of a three-judge panel of the district court was appealed to the U.S. Supreme Court, which remanded the case for further proceedings. The lower court eventually ruled that the statute was unconstitutional, and on May 22, 2000, the U.S. Supreme Court agreed in a 5–4 decision.
United States Department of Justice v. American Library Ass’n
The government’s direct appeal to the U.S. Supreme Court of the decision by the three-judge panel of the U.S. District Court for the Eastern District of Pennsylvania striking down the Communications Decency Act of 1996 was successfully opposed. In a 9–0 decision, the high court rendered a landmark decision hailed as "the birth certificate of the Internet.” The Court held that speech on the Internet is entitled to the highest level of First Amendment protection, similar to the protection the Court gives to books and newspapers.
Rice v. Paladin Enterprises, Inc.
An amicus brief was filed in the U.S. Court of Appeals for the Fourth Circuit (in cooperation with the Association of American Publishers, the American Booksellers Foundation for Free Expression, the National Association of Broadcasters, the Society of Professional Journalists, the Newspaper Association of America, and other First Amendment groups) asking the appellate court to affirm a lower court decision dismissing the lawsuit by family members of murder victims seeking to hold the publisher of Hit Man liable for the felon’s alleged use of the work to commit the crimes. The appellate court reversed the lower court decision, holding that a jury could find that the book’s content amounted to aiding and abetting of criminal conduct and that it did not, therefore, enjoy blanket First Amendment protection. The U.S. Supreme Court refused to review the decision. After additional proceedings in the lower court, the publisher unexpectedly agreed to a multi-million dollar settlement of the case on May 21, 1999, presumably at the insistence of its liability insurer.
Ashcroft v. Free Speech Coalition
Amicus briefs were filed (with various First Amendment groups) both in the lower court and in the appellate court in support of a lawsuit (initially titled Free Speech Coalition v. Reno) challenging the constitutionality of the Child Pornography Protection Act of 1996. The act expanded the definition of child pornography to include morphed images that appear to be sexual conduct involving a minor but in fact involved no real child in their creation. The trial court found the act constitutional, but the U.S. Court of Appeals for the Ninth Circuit reversed that finding. The Ninth Circuit’s finding of unconstitutionality conflicted with the First Circuit’s ruling on the Act in United States v. Hilton. In 2002, the U.S. Supreme Court overturned CPPA on the grounds that the law was overbroad (prohibiting otherwise legal, non-obscene images) and unrelated to the legitimate reasoning behind prohibiting child pornography—that it inherently involves child sexual abuse.
Video Software Dealers Ass’n v. City of Oklahoma City
An amicus brief was filed in a lawsuit seeking a judicial declaration as to the unconstitutionality of police seizures of video copies of The Tin Drum in Oklahoma City. The police acted after privately obtaining the oral opinion of a state judge that the Oscar-winning film violated Oklahoma law prohibiting depictions of underage sexual conduct. Issued at separate stages in the proceedings, the U.S. District Court for the Western District of Oklahoma ruled that the police actions were unconstitutional and that the film, as a bona fide work of art, did not constitute obscenity or child pornography.
Pitt v. Playgirl, Inc.
An amicus brief was filed (with various members of The Media Coalition) in a lawsuit by Brad Pitt against Playgirl seeking a permanent injunction of, and damages for, the magazine’s August 1997 issue featuring nude photos of the actor. The brief, which was limited to issues concerning the scope of the injunction, argued that preventing the distribution of the entire magazine was a "prior restraint” violating the First Amendment. Eventually the parties settled the case. The settlement agreement, like the case itself, was filed under seal.
Anchorage and Fairbanks, Alaska, book removals
The public school districts in Anchorage and Fairbanks, Alaska, removed the book American Indian Myths and Legends from school libraries. In Anchorage, the administration and board went through their adopted procedures and kept the book in libraries, but on a restricted status. In Fairbanks, a new superintendent reinstated the book in 2004 after receiving a final demand letter informing the district of impending litigation. The Freedom to Read Foundation gave a grant to the Alaska Civil Liberties Union in support of their efforts, and FTRF counsel provided legal assistance.
Finley v. National Endowment for the Arts
An amicus brief was filed in the U.S. Supreme Court (in cooperation with a wide variety of free speech and arts-related organizations) challenging a statutory requirement that, when deciding whether to award an arts grant, the National Endowment for the Arts must consider whether the artist's work meets "general standards of decency and respect for diverse beliefs of the American people." The brief argued that arts grants are designed to encourage private speech and the First Amendment forbids the government to exercise viewpoint discrimination, preferring one speaker over another, on the basis of a "decency and respect" requirement. Ultimately, the Court found there was no realistic danger that taking "decency and respect" into consideration would preclude or punish the expression of particular views, and that the statutory requirement, therefore, did not inherently interfere with free speech rights.
American Civil Liberties Union v. Johnson
A lawsuit was filed (with the American Civil Liberties Union and numerous individuals and organizations) challenging a New Mexico statute nearly identical to the attempted regulation of the Internet by New York struck down in American Library Ass'n v. Pataki (see 1996). The U.S. District Court for the District of New Mexico preliminarily enjoined enforcement of the statute. That decision was appealed to the U.S. Court of Appeals for the Tenth Circuit, which upheld the injunction and declared the statute unconstitutional on November 2, 1999. There was no further appeal.
In Re Grand Jury Subpoena to Kramerbooks & afterwords, Inc.
An amicus brief was filed in the U.S. District Court for the District of Columbia (in cooperation with the American Library Association, the American Booksellers Foundation for Free Expression, the Association of American Publishers, and various media associations) supporting separate motions by Kramerbooks and Barnes & Noble to quash subpoenas seeking bookstore purchase records in the Monica Lewinsky case. The brief argued that revealing what bookstore patrons read had a chilling effect on their exercise of First Amendment rights. The federal district court eventually issued a 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. As the court made subsequent rulings based on that standard, Lewinsky herself voluntarily turned over materials sought by the prosecutor, and thus concluded the matter.
United States v. Hilton
An amicus brief was filed in federal appellate court supporting an individual's challenge to the Child Pornography Prevention Act of 1996. The court below struck down the act holding that the language defining a "minor" and its use in the definition of "child pornography" was unconstitutionally overbroad because it impacted a "significant amount of adult pornography featuring adults who appear youthful." The U.S. Court of Appeals for the First Circuit reversed, stating that "it is a logical and permissible extension" of leading cases defining child pornography "to allow the regulation of sexual materials that appear to be of children but did not, in fact, involve the use of live children in their production." Subsequently, in 2001, the Supreme Court accepted for review the case of Ashcroft v. Free Speech Coalition, in which the Ninth Circuit found CPPA to be unconstitutional (see 1997).
Byers v. Edmondson
An amicus brief was filed in the Supreme Court of Louisiana opposing a lawsuit seeking to hold director Oliver Stone and various film producers responsible for the acts of criminals allegedly inspired by the movie Natural Born Killers. The brief argued that the exception to the First Amendment for "fighting words" inciting violence did not apply to film, only to live person-to-person speech. The original trial court had dismissed the case, but an appeal court ruled that the plaintiffs had stated a valid cause of action for an intentional tort against the defendants. The Supreme Court of Louisiana upheld the appeals court, and the U.S. Supreme Court declined to review the case. The Freedom to Read Foundation filed a second amicus brief in favor of U.S. Supreme Court review. In 2001, the case was dismissed for a second time on the grounds that there was no evidence proving that Time Warner Entertainment or Stone had intended to incite violence with the film. In 2002, the Louisiana Court of Appeals upheld the dismissal.
Ashcroft v. ACLU
Anamicus brief was filed (in cooperation with nineteen other members of the Citizens Internet Empowerment Coalition and Media Coalition) in support of the motion by the American Civil Liberties Union and other plaintiffs to enjoin enforcement of the Child Online Protection Act (COPA). The act would have required individuals seeking access to certain Internet sites—ones that possibly contain material deemed "harmful to minors"—to type in a credit card or other adult verification number. The brief argued that this blocking of content was not the "least restrictive means" to effect the government's interest in protecting children from certain material. In 1999, the U.S. District Court for the Eastern District of Pennsylvania granted the preliminary injunction, finding that the plaintiffs are likely to show successfully at trial that COPA imposes an unconstitutional burden on adult speech. The government appealed the decision to the U.S. Court of Appeals for the Third Circuit, which in 2000 upheld the district court's decision, stating that "harmful to minors" laws are based on community standards that cannot be applied in the Internet context. FTRF joined an amicus brief arguing against COPA. In 2002, the U.S. Supreme Court remanded the case to the Third Circuit for reconsideration of the other issues before it, finding that the "community standards" issue on its face did not justify striking the statute. On March 6, 2003, the Third Circuit again found COPA unconstitutional. In an opinion by Judge Garth, the Court found the statute vague and overbroad for a number of reasons. The Justice Department filed a petition for rehearing and for rehearing en banc, but the Third Circuit denied the petition. The Justice Department appealed to the Supreme Court, which granted certiorari for a second time to consider the constitutionality of COPA. On January 14, 2004, FTRF filed an amicus brief with the Supreme Court. Oral Arguments were heard on March 2, 2004. The case was originally ACLU v. Reno.
Kathleen R. v. City of Livermore
A parent sued the Livermore (CA) Public Library after her twelve-year-old son evidently downloaded pornographic images to a disk at the library, printed them at a relative's house, and eventually distributed them to friends. The lawsuit was dismissed, likely because of California's statutory immunization of libraries from such lawsuits. The parent refiled the lawsuit, arguing the library's policy of providing unfiltered access to the Internet violated the constitutional rights of parents and children using the library, but the second lawsuit also was dismissed. This decision was appealed and FTRF joined an amicus brief in support of the city and the library. In 2001, the First Appellate District Court of California upheld the dismissal.
PSINet Inc. v. Chapman
FTRF was a plaintiff in this "mini-CDA" case challenging Virginia's Internet content statute. The Foundation filed suit in the U.S. District Court of the Western District of Virginia, arguing that the statute violated the Commerce Clause, was overly vague, and restricted constitutional speech without protecting minors effectively or by the least restrictive means. The district court granted a preliminary injunction in August 2000, which was not appealed, and in October 2001, the court granted plaintiffs' motion for summary judgment. Virginia appealed to the U.S. Fourth Circuit Court of Appeals, and in February 2003, the court certified two questions of state law to the Virginia Supreme Court, rather than deciding the appeal. In March 2003, the Virginia Supreme Court issued an order accepting the certified questions, but also directing counsel to brief and argue whether the questions are outcome dispositive. In September 2003, the Virginia Supreme Court refused to accept the certification. The Fourth Circuit upheld the permanent injunction on March 25, 2004. The Commonwealth of Virginia filed a motion for rehearing or rehearing en banc, and on June 24, 2004, the Fourth Circuit denied the petition. Virginia declined to appeal to the Supreme Court, thus ending the case. Formerly PSINet v. Gilmore.
Cyberspace Communications v. Engler
FTRF joined anamicus brief in the appeal of the preliminary injunction against Michigan's Internet content law. The ACLU sued to overturn the law, enacted in June 1999, using arguments similar to those used in other "mini-CDA" cases, including American Library Association v. Pataki and ACLU v. Johnson. The district court judge granted a preliminary injunction, which was appealed to the Sixth Circuit Court of Appeals. The Sixth Circuit affirmed the district court's decision in an "unpublished" opinion on November 15, 2000. Because the state did not appeal the district court's entry of a permanent injunction preventing enforcement of the Michigan law, this case concluded.
Brooklyn Institute of Arts and Sciences v. City of New York
New York's mayor Rudolph Giuliani cut city funding to the Brooklyn Museum of Art because he was offended by an exhibit, "Sensation: Young British Artists from the Saatchi Collection," believing it denigrated religion. The museum sued in federal court on First Amendment grounds. The City then sued in state court to evict the museum from its land and building. FTRF joined an amicus brief in support of the museum's request for a preliminary injunction, which was granted on November 3, 1999. The City appealed to the U.S. Second Circuit Court of Appeals; FTRF joined an amicus brief. The two sides reached a settlement on March 27, 2000, in which the mayor dropped all efforts to penalize the museum and each side paid its own legal fees. Subsequently, Mayor Giuliani in April 2001, appointed a "decency panel" to review artwork at publicly funded museums.
Sund v. City of Wichita Falls, TX
The Foundation assisted in the preparation of a lawsuit against a City Council resolution allowing removal of books from the children's section to the adult area of the library if requested by 300 petitioners. The resolution was passed in response to controversy over two award-winning children's picture books in the library's children's section, Heather Has Two Mommies, by Leslea Newman, and Daddy's Roommate, by Michael Willhoite. Sixteen adults and three children living in Wichita Falls sued in federal court, arguing that the resolution violated the First Amendment prohibition of content-based speech restriction. U.S. District Court Judge Jerry Buchmeyer ruled the resolution unconstitutional in 2000.
ACLU v. Goddard
A "mini-CDA case," formerly ACLU v. Hull and ACLU v. Napolitano. In conjunction with other plaintiffs, FTRF filed suit in the U.S. District Court for the District of Arizona challenging the Arizona "harmful to minors" Internet statute. In February 2001, the judge issued an order, consented to by the plaintiffs and the Attorney General of Arizona, staying enforcement of the law pending the judge's ruling on plaintiffs' application for a permanent injunction. The order also stayed further proceedings in the case pending either the end of the Arizona legislative session or a final vote on a bill that would amend this law. Governor Hull then signed an amended law. In response, the complaint and motion for injunctive relief were amended. In September 2001, the court granted a temporary restraining order and, following a hearing, held the statute unconstitutional. The state appealed to the Ninth Circuit Court of Appeals. The Arizona legislature again amended the statute, and the parties filed a joint motion to remand to district court, which the Ninth Circuit granted in July 2003. In April 2004, the district court judge found the amended statute unconstitutional.
Tattered Cover Bookstore, Inc. v. City and County of Denver
Executive Director Judith Krug testified, and FTRF joined an amicus brief arguing in favor of the Tattered Cover, which sued to stop enforcement of a search warrant for customer records in an illegal drug making case. The Foundation also made a grant to the Tattered Cover to aid its litigative efforts. In October 2000, the court issued an opinion agreeing with Tattered Cover and amici that the burden was on the government to establish a compelling need and holding, moreover, that the request for all purchasing records of an individual-even for a one month period-constituted a fishing expedition for which the government had failed to establish a compelling need. However, the court also held that Tattered Cover was required to produce information related to the specific invoice in question in the case. On appeal, however, the Colorado Supreme Court ruled in favor of the Tattered Cover, quashing the search warrant. [See also Tattered Cover Bookstore v. Tooley, 1982.]
American Amusement Machine Association v. Kendrick
The Freedom to Read Foundation joined an amicus brief supporting an appeal of the decision to uphold an Indianapolis city ordinance restricting minors' access to arcade games, particularly video games, that include "graphic violence" or "strong sexual content." A complaint was filed in an Indiana district court challenging the ordinance as a violation of the First Amendment. The court denied the request for a preliminary injunction, holding that while it could conclude that "at least some video games are expression entitled to First Amendment protection," the ordinance did not violate the First Amendment. The case was appealed to the Seventh Circuit, which reversed and remanded the trial court's decision, with instructions to grant a preliminary injunction barring enforcement of the ordinance.
Borders Books v. United States Department of Justice
FTRF joined an amicus brief urging the court to quash on First Amendment grounds a subpoena to a bookstore for information related to the book purchases of a particular customer. After reviewing in camera the evidence submitted by the government, the district court issued a one-paragraph ruling, holding that the government had not met its burden and quashed the subpoena.
City News and Novelty v. City of Waukesha
FTRF joined an amicus brief in support of City News, which was challenging a city ordinance pertaining to the licensing of adult-oriented establishments. Such establishments must annually renew their license to operate. Principally, the complaint alleged that the ordinance is unconstitutional because it fails to guarantee prompt judicial review of a license denial and does not permit maintenance of the status quo during the judicial review process. The Court of Appeals of Wisconsin held that one portion of the ordinance was unconstitutional, but disagreed that the ordinance failed to provide for prompt judicial review or that it was facially unconstitutional for failing to mention that the status quo must be maintained during the judicial process. City News petitioned the U.S. Supreme Court for a writ of certiorari, which was granted, then dismissed. The decision of the lower court was thus upheld.
American Booksellers Foundation for Free Expression v. Dean
FTRF was a plaintiff in this "mini-CDA" case, challenging Vermont's "harmful to minors" Internet statute. The state Attorney General requested that the legislature amend the bill in light of the suit, and an amended bill was passed on June 2, 2001. On June 5, the judge denied plaintiffs' motion for a preliminary injunction, stating that the substance of the statute was changed enough that "a ruling on the law as previously promulgated would serve no purpose." Plaintiffs filed an amended complaint and the state filed a motion to dismiss the case as moot; plaintiffs' motion was granted. After a hearing, the judge granted a permanent injunction in April 2002. The state filed an appeal to the Second Circuit Court of Appeals, which in August 2003 affirmed the district court's decision. The State of Vermont appealed, but their motion was denied (along with plaintiffs' motion for rehearing based on the scope of Judge Murtha's remedy).
United States v. American Library Association.
The Freedom to Read Foundation, in conjunction with the American Library Association and other plaintiffs, filed a lawsuit in the Eastern District of Pennsylvania against the Children’s Internet Protection Act (CIPA). The law required a public library to install blocking technology on all of its computers for all adult and child patrons if the library received federal funding for Internet service and/or computer equipment. On May 31, 2002, in a unanimous decision by a special three-judge panel, CIPA was found facially unconstitutional, and enforcement was blocked. The Court ruled that filters both overblock (by blocking access to protected speech) and underblock (by allowing access to illegal materials). It also found that less restrictive alternatives exist to allow public libraries to protect children from material that was illegal for them to access. The government appealed to the U.S. Supreme Court on June 20, 2002. On March 5, 2003, the Supreme Court heard oral arguments. On June 23, 2003, the Court reversed the District Court ruling and held CIPA constitutional. The Court, in a plurality decision, said that, to the extent filters could be disabled for adults, they did not pose a burden on the First Amendment rights of library users. The Court left open the possibility that an "as applied" challenge could be brought against CIPA if an adult library user was denied a request that a Web site be unblocked.
City of Los Angeles v. Alameda Books, Inc.
The Foundation joined an amicus brief in this case, which examined whether the LA City Council required evidence to demonstrate that a combination adult bookstore/arcade standing alone produced harmful secondary effects, or whether the council could rely on a prior ruling by the Fourth Circuit upholding a state law almost identical to the city ordinance. In 2002, the U.S. Supreme Court upheld the ordinance.
Suntrust Bank v. Houghton Mifflin Company
The Freedom to Read Foundation joined an amicus brief in support of Alice Randall and Houghton Mifflin, who were being sued by the Margaret Mitchell estate over publication of The Wind Done Gone, a parody of Gone with the Wind that retells some of the events of that novel from a slave's perspective. The Mitchell estate alleged copyright infringement and asked the court for a temporary restraining order and a preliminary injunction preventing sale or distribution of the book. Amici argued that without regard to the copyright issues, an injunction would be an unlawful prior restraint of speech under the First Amendment. The District Court ruled in favor of the Mitchell estate, and defendants appealed. Once again, FTRF joined in an amicus brief in support of the defendants' right to publish. A three-judge panel of the Eleventh Circuit, in a rare oral decision from the bench, unanimously ruled that the preliminary injunction was an abuse of discretion and an unlawful prior restraint. It ordered that the injunction be vacated and that publication of The Wind Done Gone be allowed to proceed. On May 10, 2001, the parties settled the suit. Under the terms of the settlement, Houghton Mifflin, publisher of The Wind Done Gone, agreed to make an unspecified contribution to Morehouse College, a historically black school in Atlanta to which members of the Mitchell family have long been benefactors.
Yahoo! v. La Ligue Contre Le Racisme et L'Antisemitisme
After a French court fined Yahoo! for hosting customer pages advertising Nazi and racist memorabilia, the company filed suit in U.S. District Court in San Jose, seeking a declaratory judgment that the French court's orders were neither cognizable nor enforceable under United States law. The court ruled that no other nation's law could serve as a basis for suppressing free speech in the United States. The defendants appealed the ruling to the Ninth Circuit Court of Appeals. FTRF joined amicus briefs in support of Yahoo! in both the original case and in the appeal. Oral argument was held in December 2002, and on August 23, 2004, the Ninth Circuit reversed the lower court’s ruling, holding that the United States courts did not have personal jurisdiction over the French defendants. Yahoo! appealed for a rehearing or a rehearing en banc, and FTRF filed an amicus brief. The Ninth Circuit agreed to a rehearing en banc and held a hearing in March 2005. On January 12, 2006, the Ninth Circuit upheld the earlier ruling that the lower court’s decision should be reversed. Although eight of the eleven judges held that there was personal jurisdiction, three of the five judges concluded that the matter should be reversed because it was not ripe for review. Yahoo! sought certiorari to the U.S. Supreme Court, which was denied. The Supreme Court’s decision concludes this case without any final determination of whether a foreign government’s court order can be enforced in the United States against a U.S. person for publishing materials on the Internet that are legal in the United States.
ACLU v. Department of Justice
In October 2002, the Freedom to Read Foundation joined the ACLU, the Electronic Privacy Information Center, and the American Booksellers Foundation for Free Expression in filing a Freedom of Information Act request with the Department of Justice (DOJ), seeking more information about the implementation of Section 215 of the USA PATRIOT Act. Upon being denied the requested the information, the organizations filed suit in federal court. The DOJ released some heavily redacted documents in response. In May 2003, a federal judge held that the aggregate information being sought by the plaintiffs could be withheld on national security grounds. In October 2003, the organizations filed another FOIA request seeking information on Section 215 orders. The organizations filed a legal action in December seeking the release of the requested records, but the FBI claimed they could not be produced before June 2005. The U.S. District Court for the District of Columbia ultimately overturned the FBI’s decision and ordered the agency to release the documents over a period of six weeks. In June 2004, the FBI released some documents, including a memorandum from October 2003 indicating the agency had submitted an application for an order under Section 215 less than a month after Attorney General Ashcroft stated that the section had not been invoked.
American Historical Association v. National Archives and Records Administration
President George W. Bush signed Executive Order 13233, which permits both former and sitting presidents, and their relatives, to restrict access to presidential records eligible for release under the Presidential Records Act of 1978. The Freedom to Read Foundation joined an amicus brief in support of the American Historical Association, which filed suit in federal court to overturn the order. On March 28, 2004, the judge dismissed the case as moot because the National Archives and Records Administration had released the sought-after records. She did not rule on whether the executive order was within the president's authority. Plaintiffs then asked for a reconsideration of her ruling. Judge Kollar-Kotelly ordered another round of briefing, and FTRF joined an amicus on November 30, 2005. The plaintiffs renewed their motion for summary judgment in January 2006. On October 1, 2007, the judge denied the motion to overturn the order (due to lack of ripeness) but enjoined the Archivist of the United States from relying section 3(b) of the order, which gave presidents a potentially unlimited time frame for blocking the release of documents, saying doing so was "arbitrary, capricious, and contrary to law.” On January 21, 2009, President Barack Obama revoked the order.
American Booksellers Foundation for Free Expression v.Strickland
Formerly Bookfriends, Inc. v. Taft, ABFFE v. Petro, and ABFFE v. Dann. The Freedom to Read Foundation and other plaintiffs filed a lawsuit in the federal court in Dayton, Ohio, challenging an Ohio statute. Part of the statute defines "harmful to juveniles” to include violence, cruelty, foul words, and glorification of crimes, while another part is an Internet provision similar to those successfully fought by FTRF previously. On August 2, 2002, the court issued a temporary restraining order, ruling that the new "harmful to juveniles” definition was overbroad. The state then appealed the decision to the Sixth Circuit Court of Appeals. While the appeal was pending, the Ohio legislature adopted an amendment to the law eliminating most of the overbreadth problems, in an attempt to moot the litigation. Subsequently, in June 2003, the Sixth Circuit remanded the case back to the trial court for further action. On September 27, 2004, the district court granted plaintiffs’ summary judgment motion in part and overruled it in part, and indicated that an expanded opinion would be forthcoming. The court issued the expanded opinion in September 2007, finding that the statute violated the First Amendment because it was overbroad and not narrowly tailored to achieve the compelling interest of protecting minors from pedophiles online. The state appealed the ruling to the Sixth Circuit which, following oral argument, certified two questions to the Ohio Supreme Court to determine the breadth of the statute. On January 27, 2010, the state Supreme Court ruled that the statute was limited in scope to online communications knowingly directed at a minor. On April 15, 2010, the Sixth Circuit upheld the statute as constitutional, based on the narrowed scope of the statute as determined by the state Supreme Court.
IDSA v. St. Louis County
The Freedom to Read Foundation joined an amicus brief in the appeal of this case challenging a St. Louis County ordinance making it unlawful to knowingly sell, rent, make available, or permit the "free play of" video games with violent content to or by minors without the consent of a parent or guardian. A federal judge had upheld the ordinance, holding that video games were not First Amendment-protected and, in any event, that violent material could be regulated. The judge then dismissed the case. The Eighth Circuit Court of Appeals reversed the lower court judge in 2003, and ordered him to issue and injunction against enforcement of the statute. The county's appeal was denied.
Center for Democracy and Technology v.Pappert
In September 2003, the Center for Democracy and Technology (CDT) challenged a Pennsylvania law that allows the state Attorney General or any county district attorney to unilaterally apply to a local judge for an order declaring that certain Internet content may be child pornography and requiring the Internet Service Provider (ISP) to block the site. Neither the targeted ISP nor the owner of the web site is permitted to participate in the proceedings. The CDT lawsuit argues that the statute violates the First and Fourteenth Amendments to the Constitution, as well as the Commerce Clause. The parties agreed to a temporary restraining order pending final disposition of the matter. A hearing was held in January 2004. On September 10, 2004, the trial court struck down the law as unconstitutional. FTRF gave a grant to CDT in support of the case, which was formerly Center for Democracy and Technology v. Fisher.
Counts v. Cedarville
A student and her parents initiated a lawsuit after the Cedarville, Arkansas, school board voted to remove the Harry Potter books from the school library's open stacks and to require students to obtain a parent's written permission before borrowing the books. The school board acted following a parent's complaint that the series encourages children to disrespect adults and to believe in witchcraft. FTRF and other organizations filed an amicus brief in March 2003 in support of the plaintiffs' motion for summary judgment. On April 23, 2003, Judge Jimm L. Hendren granted the motion, ordering the school board to return the books to the school library's open shelves. The school board voted not to appeal the decision.
Muslim Community Association of Ann Arbor v. Ashcroft
The Freedom to Read Foundation joined the American Booksellers Foundation for Free Expression and many other free expression and civil liberties organizations in submitting an amicus brief in this case, a facial legal challenge to Section 215 of the USA PATRIOT Act filed by the American Civil Liberties Union. Section 215 amends the business records provision of the Foreign Intelligence Surveillance Act to permit FBI agents to obtain all types of records, including library records, without a showing of probable cause. Additionally, the statute provides for a gag order in every request by the government for an indefinite time and without any particular showing by the FBI that a gag order is necessary. FTRF’s brief argued that both the gag order and the lack of any requirement that the government show relevance to a terror-related investigation pose severe threats to the rights to transmit and receive information as guaranteed by the First Amendment. The government moved to dismiss the complaint, arguing that plaintiffs have no standing to challenge the statute, because they have not suffered any "actual harm” in that Section 215 has never been used. The government also claimed that the Fourth Amendment and due process rights claimed by the plaintiffs don’t apply in this case. Oral arguments were heard in early December 2003. On October 2, 2006, the trial court denied the government’s motion to dismiss and held that the plaintiffs had standing to challenge the statute. On October 27, 2006, the ACLU withdrew its facial challenge to Section 215 citing the recent amendments to the USA PATRIOT Act.
New Times, Inc. v. Isaacks
In November 2003, FTRF partnered with the Association of American Publishers and thirteen other groups in submitting an amicus brief to the Texas Supreme Court in support of a newspaper’s right to engage in political satire as a means of commenting on government officials’ actions. In the case, a judge and district attorney claimed they were libeled by the Dallas Observer, after the paper (an alternative weekly) published a fictitious article criticizing the officials’ role in jailing a 13-year-old boy for writing a school-assigned essay for Halloween, which discussed the shooting of a teacher and two students. The article recounted the jailing of a six-year-old girl for "suspicion of making a terrorist threat” in a book report on Maurice Sendak’s Where the Wild Things Are. The trial court denied the Observer’s motion for summary judgment, and an appeals court affirmed. On September 3, 2005, the Texas Supreme Court unanimously ruled in favor of the Observer, saying the article was satire and protected by the First Amendment, and thus the officials could not sue for libel. On June 6, 2005, the U.S. Supreme Court denied to hear an appeal.
Shipley v. Long
In June 2003, the Freedom to Read Foundation challenged an Arkansas statutory amendment that would require retailers and libraries to prevent all minors from accessing constitutionally protected materials that may be considered harmful to minors through the use of blinders and physical segregation of such materials. In February 2004, the federal district court judge certified four questions to the Arkansas Supreme Court. He also issued an interim temporary injunction against the challenged portion of the law. Following a hearing, the Arkansas Supreme Court responded on October 21, 2004, clarifying what various portions of the statute meant under state law. On November 16, 2004, the trial court judge struck down the provisions of the Arkansas Code criminalizing the display of books which are inappropriate to younger minors but constitutionally protected as to older minors and adults. In January 2005, the state appealed the ruling to the 8th Circuit Court of Appeals, but withdrew the appeal in February 2005, ending the litigation. The case was formerly Shipley v. Huckabee.
United States v. Irwin Schiff, et al.
On March 19, 2003, a U.S. District Court judge in Nevada temporarily enjoined sales of Irwin Schiff’s book The Federal Mafia: How Government Illegally Imposes and Unlawfully Collects Income Taxes. FTRF filed an amicus brief opposing the court’s prior restraint of the book. In June 2003, the court issued a preliminary injunction, ruling that the book was "commercial speech” and therefore entitled to reduced First Amendment protection. Mr. Schiff and the ACLU of Nevada appealed the ruling to the Ninth Circuit Court of Appeals, which upheld the injunction on August 9, 2004. Schiff and his associates responded by providing free access to the book as a download. Other sellers of the book are not affected by this ruling.
Athenaco v. Cox
The Michigan legislature amended its "harmful to minors” statute in 2003, making it illegal to allow a minor to see or examine a work deemed "harmful to minors.” The Freedom to Read Foundation joined other plaintiffs in challenging the amendment in January 2004. On September 2, 2004, U.S. District Court Judge Anna Diggs Taylor upheld the statute, but limited its effect by clarifying the terms of the law such that it only affects work with "harmful to minors” content on the cover, and disallowing prosecution if the displayer takes steps to correct the situation, once he or she becomes aware that a minor is found reading the material.
City of Littleton, Colorado, v. Z.J. Gifts
Z.J. Gifts brought a facial challenge to Littleton’s adult business licensing ordinance when it opened a retail store deemed by the city to be an adult-oriented business. The company claimed the law was unconstitutional because the licensing provision, which operates as a prior restraint on protected speech, fails to assure a prompt and final judicial decision following a refusal to issue a license. The Tenth Circuit Court of Appeals ruled in favor of the plaintiff, and the city appealed to the U.S. Supreme Court. In January 2004, the Freedom to Read Foundation joined with the American Booksellers Foundation for Free Expression and four other organizations to file an amicus brief in support of Z.J. Gifts. On June 7, 2004, the Supreme Court overturned the initial decision and found the ordinance constitutional.
Chiras v. Miller
The Texas State Board of Education (SBOE) rejected Daniel Chiras’ textbook Environmental Science: Creating a Sustainable Future on the ground that it was "anti-Christian” and "anti-free enterprise.” The author and a group of parents and students filed a lawsuit in federal district court in Texas challenging this refusal to utilize the textbook arguing that it constitutes censorship in violation of the Constitution. The judge dismissed the suit on July 23, 2004, and plaintiffs appealed. FTRF, the Association of American Publishers, and the National Coalition Against Censorship filed an amicus brief in support of the plaintiffs. On December 12, 2005, the Fifth Circuit upheld the district court's decision to dismiss the lawsuit, agreeing that school boards may reject textbooks if they disagree with the author’s viewpoint when such "viewpoint discrimination” is "reasonably related to legitimate pedagogical concerns.” The plaintiffs chose not to seek certiorari with the U.S. Supreme Court.
FCC Petition for Reconsideration
The Freedom to Read Foundation joined a group of individuals, other free speech organizations, and broadcast corporations in filing a petition urging the FCC to reverse a decision it made in punishing NBC, the broadcaster of the 2003 Golden Globes award ceremony, for a comment made by Bono upon receiving an award. The petition argued that the new rules the FCC used to impose punishment violated the First Amendment. Soon after, Fox Television Stations filed suit against the FCC in federal court against their policy of fining "fleeting expletives.” On June 4, 2007, the Second Circuit ruled that the policy was arbitrary and capricious under the Administrative Procedures Act, but did not rule on the constitutionality of the policy. The Justice Department then appealed, and on April 28, 2009, the Supreme Court reversed the appellate court’s decision, saying the policy was reasonable, and remanded the case to the Second Circuit. On July 13, 2010, the Second Circuit struck down the policy, saying it was "unconstitutionally vague” and creates a "chilling effect that goes far beyond the fleeting expletives at issue here.” Although FTRF did not have involvement in the court case, the final outcome will affect FTRF’s petition for reconsideration.
John Doe and ACLU v.Holder
In May 2004, the Freedom to Read Foundation, American Library Association, and American Booksellers Foundation for Free Expression filed an amicus brief in support of the ACLU’s challenge to Section 505 of the USA PATRIOT Act, which concerns "National Security Letters.” The brief argued that the lack of judicial overview and gag order provision of Section 2709 of the Act threaten the First Amendment rights of libraries, bookstores, and their patrons, as well as Internet communication in general. The case was filed under seal, which means information about it, including the identity of the ACLU’s client, an Internet Service Provider, was not public. In September 2004, Judge Victor Marrero struck down the NSL provision and the associated gag order. The government appealed to the Second Circuit Court of Appeals, and FTRF filed a second amicus brief. Congress then amended the NSL statute in March 2006 and based on that, the Second Circuit remanded the case to the trial court. In November 2006, the government withdrew its request for records, but kept the gag order in place. In September 2007, Judge Marrero struck down the amended statute as unconstitutional. In December 2008, the Second Circuit upheld, in part, the district court’s ruling, narrowing the NSL statute. It also required the government to justify its 4-year gag order on John Doe. The government was also required to release a redacted version of the NSL it issued to Doe. On August 10, 2010, following a settlement, the FBI partially lifted the gag order, and John Doe was revealed to be Nicholas Merrill, president of Calyx Internet Access. Formerly John Doe and ACLU v. Ashcroft and John Doe and ACLU v. Holder.
Kaczynski v. United States
In 2003, Ted Kaczynski (the "Unabomber”) filed suit for return of the property, including original journals and photographs he wanted to donate to the University of Michigan. The government claimed it had a lien on all Kaczynski’s possessions, to be sold for the benefit of his victims and their families. The magistrate judge ruled for Kaczynski, and the government appealed to the U.S. District Court, which ruled for the government. In rejecting Kaczynski’s motion, Judge Garland Burrell stated that donation of Kaczynski's papers would provide him with a "psychic benefit” that he did not deserve because of the atrocious nature of his offenses. Kaczynski appealed that decision to the Ninth Circuit Court of Appeals, and FTRF joined the Society of American Archivists and the ACLU of Northern California in filing an amicus brief arguing for the original documents to be made available in an archive. On July 21, 2005, the Ninth Circuit Court of Appeals ordered the federal government to sell Kaczynski’s papers and to compensate the victims with the proceeds. Judge Burrell approved an auction plan, which Kaczynski appealed. On January 9, 2009, the Ninth Circuit rejected the appeal. The University of Michigan is to get copies of each item for its collection of anarchist writings.
Video Software Dealers Association v. Maleng
In January 2004, the Freedom to Read Foundation joined an amicus brief in support of this challenge to a Washington State law barring the sale or rental to minors of any video game containing depictions of violence directed against law enforcement officers. On July 15, 2004, U.S. District Court Judge Robert S. Lasnik granted plaintiffs’ request for summary judgment, striking down the law.
In Defense of America's Freedoms is an article that first appeared in American Libraries magazine (December 2004, pp. 54-56). Written by journalist (and past FTRF Trustee) Tom Teepen, it describes the history and then-current activities of the Foundation.
Library Connection v. Gonzales
After being served with a National Security Letter seeking confidential records, directors of the Library Connection (a nonprofit consortium of libraries) in Connecticut joined with the ACLU to file suit on August 9, 2005, claiming the NSL statute and associated gag order were unconstitutional. The following month, Judge Janet Hall ordered the gag order lifted, so that the librarians could take part in the ongoing debate about the USA Patriot Act. Requests to lift the stay were denied by the Second Circuit Court of Appeals and by U.S. Supreme Court Justice Ginsburg. Following the amending of the USA Patriot Act in 2006, the FBI dropped their attempt to maintain the gag order, and the plaintiffs were revealed as George Christian, Peter Chase, Barbara Bailey, and Janet Nocek. In June 2006, the FBI rescinded the NSL. During the litigation, the case was known as Doe v. Gonzales. FTRF filed two amicus briefs in this case in support of the librarians, one with the Supreme Court and the other with the Second Circuit.
The Gordon M. Conable Fund created
Following the untimely death of Freedom to Read Foundation president Gordon Conable, a fund was created in his memory. Starting in 2008, money from the Conable Fund was used to form the Conable Conference Scholarship, which pays annually full expenses for a library school student or recent graduate to travel to ALA’s Annual Conference, attend FTRF meetings and other intellectual freedom programs, and meet leaders of the intellectual freedom community.
ABFFE v. Shurtleff
After Utah enacted a law greatly expanding its "harmful to minors” prohibition, FTRF and others filed suit in federal court on June 9, 2005, alleging that the statute was in violation of the First Amendment and the Commerce Clause of the U.S. Constitution. Among the provisions of the law was a section requiring the state’s Attorney General to unilaterally create a public registry of websites deemed harmful to minors without any judicial review or due process. In August 2006, the court entered a preliminary injunction preventing enforcement of the law, but delayed the trial after the state said the legislature would amend the law. Concluding that the amendments did not cure the unconstitutionality of the statute, FTRF and other plaintiffs filed an amended complaint on April 30, 2007. In November 2007, the court dismissed two plaintiffs and rejected the challenge to three provisions of the statute. The case remains pending. Formerly King’s English v. Shurtleff and Florence v. Shurtleff.
Forensic Advisors, Inc. v. Matrixx Initiatives, Inc.
Matrixx Initiatives sued numerous anonymous posters over comments they made on message boards. In a purported attempt to learn their identities, Matrixx subpoenaed a stock newsletter called the Eyeshade Report that had published an unfavorable article on the company. Matrixx sought the names of every person who read the report, every source of information for the report, and all notes and drafts. The company did not identify any connection between the Internet posters and the Eyeshade Report. It only speculated that some readers of the publication, or sources, may have been the Internet posters in question. Forensic Advisors, publisher of the Eyeshade Report, attempted to quash to subpoena, and FTRF joined Public Citizen and other groups in filing an amicus brief arguing that the Maryland news media privilege prevented disclosure of sources and information collected in the course of reporting, and that the First Amendment right to read anonymously barred disclosure of a list of readers and subscribers. In 2006, the Maryland Court of Special Appeals found that Matrixx could go ahead with its deposition of Forensic Advisors, but also found that Forensic Advisors could assert a news media privilege with respect to certain information. In 2007, the Maryland court declared Forensic Advisors’ lawsuit moot after Matrixx dropped its Arizona suit.
ACLU of Florida v. Miami Dade School Board
After the Miami-Dade School Board voted to remove all copies of the book Vamos a Cuba, its English-language companion book A Visit to Cuba, and the entire "A Visit To” series from its schools, the American Civil Liberties Union of Florida joined with families of Miami-Dade students and the Miami-Dade County Student Government Association to challenge the decision on First Amendment grounds. When the district court entered a preliminary injunction ordering the school district to immediately replace the entire series on library shelves, the Miami-Dade School Board appealed the decision to the Eleventh Circuit Court of Appeals. Following a hearing, the Eleventh Circuit overturned the lower court’s ruling in a 2-1 decision, declaring that the district court erred in finding that the book was removed for political reasons. Plaintiffs then filed a request for a rehearing en banc with the Eleventh Circuit, which was denied. Plaintiffs petitioned the U.S. Supreme Court for certiorari; on November 16, 2009, the Supreme Court denied the petition, ending the litigation. FTRF filed amicus briefs with the Eleventh Circuit in support of the effort to return the books and provided a grant to the ACLU of Florida in support of its petition for certiorari with the Supreme Court.
Beard v. Banks
The Freedom to Read Foundation submitted an amicus brief to the U.S. Supreme Court in support of Pennsylvania prisoners who were seeking to overturn a state Department of Corrections policy banning certain disruptive or violent prisoners from receiving newspapers or magazines unless they were "religious or legal” in nature. An inmate sued, claiming his First Amendment rights were being violated, but a district court held that the regulations were constitutional. On appeal the Third Circuit Court of Appeals reversed that decision, saying the Department of Corrections had not met its burden of proving that the regulations were rationally related to rehabilitation or security. On June 28, 2006, the Supreme Court reversed the Third Circuit’s decision and upheld the policy.
ESA v. Blagojevich
On July 25, 2005, the Entertainment Software Association and Video Software Dealers Association filed suit to block Illinois House Bill 4023, restricting the sale or rental of video games with certain violent or sexual content to those 18 or over. On December 2, 2005, a district court found that the law was unconstitutional. The state chose not to appeal the district court ruling finding the Violent Video Games Law unconstitutional, but did appeal the law banning the sale of video games with certain sexual content. FTRF and other members of the Media Coalition filed an amicus brief in support of the lower court’s decision. On November 27, 2006, the Seventh Circuit Court of Appeals affirmed that the sexual content law violated the First Amendment.
ESA v. Swanson
A 2006 Minnesota law outlawed the sale of video games rated "M” or "AO” by the Entertainment Software Ratings Board to anyone under 17 and imposed a $25 fine on any minor purchasing or renting a restricted game. The Entertainment Software Association and Entertainment Merchants Association filed suit in federal court to overturn the law. On July 31, 2006, the district court judge permanently enjoined the law, finding that video games were protected speech under the First Amendment, that the state could not delegate legislative power to a private ratings system. The state then appealed to the Eighth Circuit Court of Appeals; FTRF joined an amicus brief in support of the plaintiffs. On March 17, 2008, the Eighth Circuit upheld the lower court decision. On May 7, 2008, the Eighth Circuit denied Minnesota’s motion for a rehearing en banc. The case was originally ESA v. Hatch.
Lyle v. Warner Brothers
A writer’s assistant for the television show Friends filed a sexual harassment suit, claiming that sexually explicit jokes in the writers’ room created a hostile work environment. The California intermediate appellate court held that, even if not directed at the complainant, the speech could used to support the plaintiff’s case unless defendants were able to prove that the banter in the writers’ room was "necessary” to the creative process. FTRF filed an amicus brief with the California Supreme Court, which on April 20, 2006 reversed the lower court ruling, saying that the "creative necessity” test for the writers’ speech would harm the First Amendment.
Gorran v. Atkins Nutritionals
This case was brought by a man who filed suit against the publishers of the Atkins Diet after he attempted the diet and suffered heath problems, claiming that the company’s books and website were misleading commercial speech. Judge Denny Chin of the Southern District of New York dismissed his negligent misrepresentation, product liability, and state unfair competition claims. Mr. Gorran appealed to the Second Circuit Court of Appeals. The Freedom to Read Foundation joined the Association of American Publishers and ABFFE in an amicus brief in this case in support of the publisher, arguing that the First Amendment protects the ideas on nutrition and diet promulgated by Atkins Nutritionals. On May 28, 2008, the Second Circuit Court of Appeals affirmed the dismissal, holding that the ideas in the Atkins book and on its website are noncommercial speech entitled to First Amendment protection.
Morse v. Frederick
During the 2002 Olympic Torch Relay, a Juneau, Alaska high school student displayed a banner reading "Bong Hits 4 Jesus” across the street from his school. The student was suspended, and subsequently brought suit against the school district for violating his First Amendment rights. His suit was dismissed by the federal district court, but on appeal, the Ninth Circuit Court of Appeals reversed the ruling. The Freedom to Read Foundation filed an amicus brief with the Supreme Court in support of student Joseph Frederick. On June 25, 2007, the U.S. Supreme Court overturned the Ninth Circuit’s decision and found that the school district acted properly, claiming the banner could be "reasonably viewed as promoting illegal drug use.”
Big Hat Books v. Prosecutors
FTRF and other members of the Media Coalition filed suit in federal court on May 7, 2008, challenging an Indiana law (House Act 1042) that required book retailers to register with the Secretary of State if they sold or intended to sell material that was "harmful to minors,” and charged a $250 registration fee. On July 1, 2008, Judge Sarah Evans Barker found for the plaintiffs and granted summary judgment permanently barring enforcement of the law.
Rachel Ehrenfeld "libel tourism” grant
A grant was given to Rachel Ehrenfeld to assist with costs associated with her "libel tourism” litigation. Ehrenfeld had been sued for libel by a Saudi businessman in a British court for material she published in the United States. She in turn filed suit in the U.S. to block enforcement of that judgment here. As a result in part of her campaign against this type of activity, President Obama in 2010 signed the SPEECH Act, which makes foreign libel judgments unenforceable in the U.S. if they are not complaint with the First Amendment.
Powell’s Books, Inc. v. Kroger
On April 25, 2008, FTRF and other plaintiffs filed suit in U.S. District Court in Portland against an Oregon statute that criminalized the dissemination of "sexually explicit material” to anyone under the age of 13. The law also contained a "luring” provision that criminalized the dissemination of sexual material to anyone under 18 with the intent of arousing the provider or recipient of the material. The complaint alleged the law was unconstitutionally vague and overbroad, as it did not adhere to the Supreme Court’s three-pronged Miller/Ginsberg test. The district court denied the motion for preliminary injunction and dismissed the complaint, but on appeal, the Ninth Circuit on September 20, 2010 found the statute unconstitutionally overbroad. On December 15, 2010, the Ninth Circuit denied the state’s petition for rehearing or rehearing en banc.
Schwarzenegger v. ESA
In 2005, Gov. Arnold Schwarzenegger signed a California law restricting the sale of "violent video games” to anyone under the age of 18, and required retailers to put a sticker on those games displaying the numeral "18.” The Video Software Dealers Association and Entertainment Software Association filed suit and U.S. District Court Judge found the law unconstitutional. The state appealed the ruling to the Ninth Circuit Court of Appeals. On February 13, 2008, FTRF joined other members of the Media Coalition in filing an amicus brief arguing that the law could lead to a wide range of speech losing constitutional protection, that it was unconstitutionally vague, and that the labeling provision was unconstitutionally compelled speech and a content-based requirement. On February 20, 2009, the Ninth Circuit upheld the lower court’s decision. California has appealed that decision to the U.S. Supreme Court and oral argument was held November 2, 2010. FTRF submitted an amicus brief with the Supreme Court.
Wilson v. McConnell
Valerie Plame Wilson, who was outed in 2002 as a CIA employee, sued the CIA to allow her to include information about the pre-2002 dates of her CIA service in her memoirs, Fair Game. A federal judge ruled that the CIA had the right to redact the information, even though it was published in the Congressional Record and is available online, because it had not been "officially acknowledged” by the CIA. Wilson appealed and on February 5, 2008, FTRF filed an amicus brief with the Second Circuit Court of Appeals arguing that the CIA should have been required to demonstrate that its interest in censoring public domain information outweighed Wilson’s—and her publisher, Simon & Schuster’s—First Amendment rights. On November 12, 2009, the Second Circuit affirmed the lower court’s decision, ruling that the material maintained its classified status despite the public disclosure.
Krug Fund established
Following founding Executive Director Judith Krug’s April 2009 death, a fund was established in her memory. The Board of Trustees, in consultation with Judith’s family, voted to use the Krug Fund for two purposes: (1) to disburse grants to organizations to assist them in staging "Read-Outs” or other events during Banned Books Week; (2) to fund online learning initiatives on intellectual freedom topics for library and information science students.
40th Anniversary Gala
The Freedom to Read Foundation's 40th Anniversary Gala Celebration, held at the Modern Wing of the Art Institute of Chicago on July 12, 2009, was truly a night to remember. Here's the 40th Anniversary Gala program book.
View the video of the event, which includes a keynote address by Scott Turow, as well as the presentation of the Founder's Award by Judy Blume, the Civic Achievement Award, and the William J. Brennan, Jr. Award. Also see a slideshow of photos from the event.
U.S. v. Stevens
The Freedom to Read Foundation submitted an amicus brief with the U.S. Supreme Court on July 29, 2009, in this case involving a 1999 federal law criminalizing depictions of animal cruelty. On April 20, 2010, the Supreme Court in an 8–1 decision upheld the Third Circuit Court of Appeal’s ruling that the law was unconstitutional.
West Bend grant
FTRF made a grant in support of a citizens group in West Bend, Wisc., working to support the local public library against challenges to dozens of young adult books.
For details on recent activities of the Freedom to Read Foundation, visit these pages: