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First Amendment Activities Update

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Along with the Association of
American Publishers, the American Booksellers Foundation for Free Expression,
and many other industry groups, PMA is a member of the Media Coalition, an
association that defends the First Amendment right to produce and sell books,
magazines, recordings, videotapes, and videogames; and also defends the
American public’s First Amendment right to have access to the broadest possible
range of opinion and entertainment. Founded in 1973, the Media Coalition
represents most of the booksellers, publishers, librarians, periodical
distributors, recording and videogame manufacturers, and recording and video
retailers in the United States.

 

Here’s a summary of PMA’s
involvement in Media Coalition matters during 2005:

 

Court Cases

 

The
King’s English v. Shurtleff.
PMA
is a plaintiff in this challenge to a Utah law applying “harmful to minors” law
to the Internet and requiring the attorney general to create a blacklist of all
Web sites deemed to contain material “harmful to minors” that do not restrict
minors’ access to the material. The law would require ISPs to block sites on
the attorney general’s list and to filter or block sites if individual
customers object to them.

 

Lyle
v. Warner.
PMA signed onto an
amicus brief urging the California Supreme Court to reject a Court of Appeals
decision that imposes liability on authors and editors for sexual harassment
based on a judge’s and/or jury’s—after the fact—“creative
necessity” test. The brief was filed in response to the sexual harassment suit
brought by Amaani Lyle, writers’ assistant for the TV show <span
class=95StoneSerifIt>Friends
,
against Warner Brothers Television Productions, which argued that creative
discussions among Friends
writers were not structured or orderly and that the processes included sexually
explicit jokes and discussions. The California intermediate appellate court
held that speech during the creative process can support a “hostile work
environment” claim unless it is protected as “necessary” to the creative
process. This means that it would have be decided as a matter of fact whether
the sexual banter was necessary to the creative process for the writers of <span
class=95StoneSerifIt>Friends.

 

Ashcroft
v. ACLU.
This case was brought in
United States District Court in Philadelphia on October 22, 1998, by a
coalition led by the ACLU and including ABFFE, challenging the
constitutionality of the Child Online Protection Act (COPA). PMA remains a
plaintiff in this case, which has been sent back to U.S. District Court in
Philadelphia. A trial will take place there to find whether the law is the
least restrictive means of protecting children from Internet pornography, or
whether Internet filters or other technology can provide the same protections
for children while maintaining the First Amendment rights of adults.

 

Letters and Memos of
Opposition to State Laws

 

The Media Coalition tracks state
legislation of interest to coalition members. PMA’s name is included in the
Media Coalition’s letterhead in connection with opposition to the following
bills:

 

·      Alabama House Bill 441, which
would have barred the sale or rental of “violent” or “sexually explicit” video
games to minors

·      Arkansas House Bill 1852, which
would have prohibited public exhibition of video games with violent content

·      California Assembly Bill 450,
which would have prohibited the dissemination of video games that contain
certain depictions to minors and require labels; the language of this bill was
later put in California Assembly Bill 1179, which was signed by Governor Schwarzenegger
on October 7, 2005

·      District of Columbia Council Bill
16-125, which would prohibit the sale or rental of Mature-rated or Adult
Only–rated games to minors and require signage and labeling and also
require any business that sells or rents games to minors to obtain an
“entertainment endorsement” to a basic operating license from the DC government

·      Georgia House Bills 105 and 106,
which require retailers of videogames to post signs explaining rating systems

·      Illinois House Bill 602, which
would have defined “sexually-oriented business” as any business giving more
than 10 percent of its display area to “sexually explicit material”

·      Maryland House Bill 698, which
would prohibit the sale or rental of video games rated “M” or “AO” by the
Entertainment Software Ratings Board to minors

·      Michigan Senate Bill 416, which
would restrict the dissemination of video games containing certain violent
content

·      Minnesota Senate Bill 785 , which
would bar the knowing purchase or rental of any “M” or “AO”-rated video game by
anyone under 17 and also require posting a sign notifying customers of the law
and fine

·      Missouri Senate Bill 32, which
would define a sexually oriented business as any business devoting 10 percent
of its display space to sexually oriented material

·      North Carolina Senate Bill 2,
which would prohibit the sale or rental of violent and sexually explicit video
games to minors

·      North Dakota House Bill 1415,
which would amend existing display laws pertaining to images on and in books,
photographs, magazines, or pamphlets

·      Utah House Bill 260, which would
create an “adult content registry” to list all the content providers the
attorney general has determined to have material harmful to minors on the
Internet; the ISPs would be required to block access to the sites in the
register either by blocking ISP addresses or providing filtering software to
consumers

·      Washington House Bill 2178, which
would create a civil cause of action for personal injury or wrongful death
against the maker or retailer of a videogame with violent content if it was
sold to anyone under 17 and it was “a factor in creating conditions that
assisted or encouraged the person to cause injury or death to another person”

·      Wisconsin Senate Bill 258, which
would prohibit any public library from loaning or renting any movie rated R by
the MPAA to a minor without parental consent

 

Miscellaneous

 

Section
2257 Regulations letter.
PMA
signed on to this letter, which was written by the Media Coalition and
circulated on Capitol Hill. It pertains to a federal law, 18 U.S.C. § 2257,
which requires producers of a “visual depiction of an actual human being
engaged in actual sexually explicit conduct” to keep records showing the ages
of the models. New regulations that the Justice Department implemented
dramatically expand the scope of this statute. On behalf of PMA and other Media
Coalition members, the letter maintains that the new regulations—which
includes bloggers and Web site owners—are overly broad and vague in their
definition of “sexually explicit” materials.

 

Lloyd J. Jassin is a New
York intellectual property and publishing attorney specializing in copyright,
trademark, and contract law. A former publishing executive, he is pro bono
counsel to PMA. Jassin is also coauthor of <span
style=’font-size:11.0pt’>The Copyright Permission and Libel Handbook

(John Wiley). Contact him at Jassin@copylaw.com, or visit www.copylaw.com.
Emily Howorth at Media Coalition helped create this article. Visit
www.mediacoalition.org for more information.

 

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