“Congress shall make no law … abridging
the freedom of speech, or of the press…”
–US Constitution, Amendment I
By enabling smaller publishers to compete more effectively in the marketplace, PMA is protecting an interest closely akin to the First Amendment. While PMA has a long tradition of providing publishers with the tools they need to publish better books more effectively, it also has a decade-long tradition as a champion of free speech. Working with organizations such as the Media Coalition, a trade association made up of publishing, library, bookseller, motion picture, video, recording, and software groups, PMA has taken a leadership role in fighting laws — and practices — that “chill” members’ First Amendment rights.
During the past year, my office has represented PMA at meetings of the Media Coalition in New York City, making recommendations regarding legal challenges to unconstitutional laws involving the First Amendment rights of members. During the year, PMA has had a chance to present its views on free speech, and join in discussions with groups such as the American Booksellers Association, American Library Association, Motion Picture Association of America, and Recording Industry Association of America, and other influential trade associations. Significantly, PMA’s involvement in this broad coalition has allowed it to champion the First Amendment rights of its members.
This article covers some First Amendment highlights from the past year.
Internet Content Restrictions
A major blow to the First Amendment and the Internet in 1998 was passage of the Child Online Protection Act (HR 3783), known as the CDA 2. The Act, which was part of the 1999 budget bill that President Clinton signed into law, makes it a federal crime for commercial Web sites to distribute materials that are harmful to minors. It is important to note that the Act targets speech that is perfectly lawful to adults, and that harmful to minors — a vague standard — encompasses non-pornographic materials. Under the law, commercial Web sites can protect themselves by restricting access to potentially objectionable material by requiring a credit card or adult access code to screen out minors. Penalties include fines up to $50,000 per day, and jail sentences of up to six months.
While thwarting minors access to objectionable material on the Internet is a valid objective, the effect of the bill is to criminalize constitutionally protected speech among adults. For example, the Act, arguably, would apply to the Starr report, which Congress, itself, distributed over the Internet. Also, because the Act is not limited to the “sale” of information, free online excerpts from explicit novels, sex education books, even artbooks featuring nudity, could be affected, requiring site operators to build costly and cumbersome adult-access gates.
As a member of the Internet Free Expression Alliance, PMA supported that group’s resistance to the Act, which PMA believes will threaten its members ability to do business over the Internet. PMA believes less restrictive means exist to prevent minors from accessing harmful materials on the Web. PMA and its fellow Alliance members believe the new bill suffers from the same constitutional infirmities that the 1996 Communications Decency Act (CDA 1) suffered from. CDA 1 was struck down by a near unanimous US Supreme Court. In Reno v. ACLU (Reno 1), the Supreme Court held that legislation that criminalized speech over the Internet that was patently offensive or indecent for minors was unconstitutional because it unduly burdened adult speech.
In late November, a federal district judge in Philadelphia issued a temporary restraining order delaying implementation of the CDA 2. As this article was going to press, PMA and other members of the Media Coalition were preparing a friend-of-the-court brief to be filed in ACLU v. Reno (Reno 2), opposing the new CDA 2 legislation. The brief emphasizes the nature of the Internet as a medium of communication and the importance of providing it with the highest degree of First Amendment protection. The brief points out the insufficiency of the credit card requirements, and the burden it will place on free speech, creating adult only zones on the Internet. The brief also stresses the advancements that have been made in parental control technology, arguing that more effective and far less speech-restrictive means exist to prevent minors from accessing harmful material on the Internet. Copies of that brief will be made available at www.cdt.org.
On June 23, 1998, in a related matter, PMA, along with 19 other groups, including many Media Coalition members, obtained a preliminary injunction preventing enforcement of a New Mexico law that makes it illegal to allow a minor to view material harmful to minors over the Internet. The federal district court ruled that New Mexico’s Little CDA violated the constitutional guarantees of free speech. The court also held that the New Mexico law violated the Constitution’s Commerce Clause, because it excessively burdens speech occurring outside the State of New Mexico. New Mexico has appealed to the 10th Circuit Court of Appeals to reinstate the law that the district court ruled unconstitutional.
“Veggie Libel” Laws
In May, PMA joined the Foodspeak Coalition, a broad coalition opposed to so-called “veggie libel” laws. PMA joined the Foodspeak Coalition because these laws have a chilling effect on the First Amendment rights of publishers. Food disparagement laws punish constitutionally protected expression by carving out a special law of defamation for the food industry, preventing free and robust debate on issues of legitimate public concern — food safety — that could lead to reforms, when needed.
Currently, 13 states have food disparagement statutes on the books. These laws seek to penalize critics of perishable food products-and their producers-for opinions that cannot be proven true by “reasonable and reliable” scientific facts. They are the laws that led to the Oprah lawsuit in Texas, the $10.3 million-plus action filed against Ms. Winfrey and Howard Lyman for libeling beef on her TV talk show. Many of these laws allow for civil and/or criminal liability in ways contrary to existing federal and free speech laws. PMA members now risk civil and criminal liability if they publish books on legitimate matters of public concern regarding food and food safety. What is particularly disturbing about these laws is that they shift the Constitutional burden of proof imposed on plaintiffs in libel actions to defendants. Contrary to First Amendment jurisprudence, if sued, a publisher must be ready to prove the truthfulness of every published statement.
Absent current and documented scientific evidence, which is often in the sole possession of the industry being investigated, publishers put themselves at great risk. Typically, these laws allow for punitive damages, awarding attorneys fees for plaintiffs alone, encouraging abusive litigation tactics. PMA will continue to monitor these laws, which throttle public debate on public safety issues by intimidating environmental and food-safety advocates.
Assault on Bookstores
Jock Sturges, award-winning fine arts photographer, whose work depicts nude women and children, has been at the center of controversy over his books. Anti-porn activists, led by Randall Terry, former leader of Operation Rescue, have been demanding that Barnes & Noble and Borders bookstores remove copies of Sturges’s Radiant Images. Books by Sturges and others have also been destroyed by protestors in orchestrated incidents from coast to coast. These protests, which began in August 1997, have been condemned by PMA, and its fellow Media Coalition members. To date, two Barnes & Noble stores in Alabama have been indicted on child pornography charges. In one case, the indictment was dismissed. Barnes & Noble has refused to remove the book until there has been a legal ruling that it violates federal obscenity or child pornography statutes. Sturges’s work, which is included in the Museum of Modern Art’s permanent collection, has been reviewed by several district attorneys from around the United States, and deemed protected by the First Amendment.
In February 1998, when Independent Counsel Kenneth Starr subpoenaed Kramerbooks & afterwords and Barnes & Noble, to turn over records relating to book purchases made by Monica Lewinsky, PMA, along with other members of the Media Coalition, announced its support for Kramerbooks’ decision to challenge the Independent Counsel’s subpoena. On April 6, 1998, US District Court Judge Norma Holloway Johnson ruled that Starr must show a compelling need for the information and a sufficient connection between the information sought and the grand jury investigation. Holloway also ruled that Barnes & Noble was not required to turn over any evidence. The subpoena was eventually withdrawn, after Lewinsky’s lawyers volunteered to turn over some of her bookstore purchases. The case is a victory for the First Amendment rights of bookstore customers, who might otherwise restrict their bookstore purchases, for fear that those purchases would be revealed.
Texas is attempting to ban do-it-yourself law books and software using an “unauthorized practice of law” statute to investigate Nolo Press, a PMA-member, and leading publisher of legal self-help books. The facts are as follows. In June 1997, a subcommittee of the Unauthorized Practice of Law Committee (“UPL”) of the Supreme Court of Texas began an investigation of Nolo. In March 1998, Nolo sought information about the alleged complaint against it and about the committee, its procedures, and its hearings. On October 21, 1998, Nolo appeared before the Texas Supreme Court, to ask the court to order the committee and subcommittee to hand over information it had requested. As we go to press, the court has issued no decision. This matter is troubling on two levels. First, the UPL’s refusal to let the public know what it is doing, violates Nolo’s Due Process rights. Second, the state’s banning of legal self-help books has serious First Amendment and Commerce Clause consequences. Besides Nolo, the Texas Supreme Court is pursuing Parsons Technology, Inc., a division of Broderbund Software, publishers of “Quicken Family Lawyer Software,” in a Texas federal court. PMA has rallied the support of the Media Coalition, which is monitoring this situation carefully.
PMA remains dedicated to the proposition that the best test of truth is the power of an idea to get itself accepted in the marketplace. To that end, PMA will continue to monitor laws that threaten PMA members’ free speech rights and, when appropriate, file legal challenges, and friend of the court briefs, in cases involving the First Amendment rights of authors and publishers of constitutionally-protected works.© 1999 by Lloyd J. Jassin
Lloyd J. Jassin is an attorney specializing in publishing and entertainment law and an advisor to the Publishers Marketing Association. He is the coauthor of “The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers” (John Wiley & Sons). Before becoming an attorney, he was Director of Publicity of the Simon & Schuster Reference Group/Prentice Hall Press. He can be reached at 1560 Broadway, Suite 400, New York, NY 10036; phone 212/354-4442; fax 212/840-1124; or e-mail Jassin@copylaw.com.
|This article is from thePMA Newsletterfor February, 1999, and is reprinted with permission of Publishers Marketing Association.