PMA's Commitment to Free Speech:
First Amendment Highlights from the Past Year
by Lloyd J. Jassin, Esq.
"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
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
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.
NOTICE: This article represents copyrighted material and may
only be reproduced in whole for personal or classroom use. It may
not be edited, altered, or otherwise modified, except with the express
permission of the author. This article discusses general legal issues
of interest and is not designed to give any specific legal advice
pertaining to any specific circumstances. It is important that professional
legal advice be obtained before acting upon any of the information
contained in this article.
LLOYD J. JASSIN is a New York-based publishing and entertainment
attorney in private practice. He is coauthor of the bestselling Copyright
Permission and Libel Handbook: A Step- by-Step Guide for Writers,
Editors and Publishers (John Wiley & Sons, Inc.), available
at bookstores or at www.copylaw.com. Mr. Jassin has written extensively
on negotiating contracts in the publishing and entertainment industries,
and lectures frequently on contract and copyright issues affecting
creators. He is counsel to the Publishers Marketing Association and
Vice Chair of the Small Press Center. He may reached at Jassin@copylaw.com
or at (212) 354-4442. His offices are located at 1560 Broadway, Suite
400, New York, NY 10036.
(c) 1999. Lloyd J. Jassin. All Rights Reserved.
This article is from the PMA Newsletter for February,
1999, and is reprinted with permission of Publishers Marketing Association.