Freedom to Reacl Foundation News
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Freedom to Reacl Foundation News 50 EAST HURON STREET, C H ICAGO, tLLtNOIS 60611 PHONE (312) 944-6780 Fl. Kathleen l,4olz, President Judith F. Krug, E xe c utive Directo r Volume 6 Spring-Summer 1977 Nos. 3-4 Highlights of Annual Meeting High Court: In a repon prepared lor tlrc Council ol the American Li- 'Community Standards' brary Association, gathercd in Detroit lor tlte ALA's Cannot Be Defined 1977 A nnual Conference, retiring FTRF President Rich- ard L. Durling presented an account oJ the business con- In a widely expected but nonethaless dismaying ruling, ducted br- the Foundation Boqrd ol Trustees at its rcgu- the U.S. Supreme Court on May 23 upheld tlre lederal larly scheduletl summer nteeting, cotxviction ol lowan Jerry Lea Smith and declared that state ohs.enity Law cannot define "local comntunity The Board of Trustces of thc Freedom to Read Foun- standards." Smith's appeaL wa; supported by tlte Free- dation met hcre in Detroit on Wednesday, June 15, to dom lo Read Foundation. rcvicw the present status of the various cases in which Smith, who was indicted in a U.S. District Cowt in we havc been involved, and to discuss further action. Iowa lor mailing obscene matefiels in violation ol 18 Today's rcport relates to severat suc}r cases and to one USC 1461 (a Comstock law), sought without success new one. to question the jury panel on voir dire on their knowl- New Slep in Calitornia edge ol "contemporary community standards" in their In my last severai reports I told the Council that we federal district with rcgard to the depiction ol sex and ' wcrc waiting, in the case of Moore v, Younger,lor an nuatry. opinion rcquested lrom the California Attorney Gen- The ca.se proceeded to trial and at the close ol the eral by the State Librarian, affirming that he construed letlaral prosecutor's case, Smilh's attorney unsuccess- the Superior Court dccision in a manner that exempted fully moved for a directed verdict ol ecquittal on the librarians from criminal liability under the California gounds thet the lowa obscenity statute in efrect qt the "harmful matter" statute. A favorable opinion would time ol Smith's conduct, which proscribed only the have meant that the case was finished. An unfavorable disseminqtion of so-called obscene materials to minors, one would force us to return to the federal court, where set lorth tlrc applicable community standard, and that we began in 1972. the prosecution had not proved lhat the materials hqd After months of delay, Attorney General Younger ofiended that standard. finally responded. He reaillrmed his original opinion Upon his conviction, Smith appealed to the U.S. givcn in 1972 the court decisions to the contrary not- Court ol Appeals lor the Eighth Circuit, which umrmed withstanding-that libraries, librarians, and library em- his conviction on the grounds that tlre questions pro- ployees are nol excmpt from prosecution under the posed during voir dire were impermissibLe since they "harmful matter" statute. concernetl ultimete questions ol guilt or innocence We have exhausted our alternatives in the California rather than the iurors' qualifications, and that com- State courts. Our only hope now of eventual success munity standards were properly defined, not by the state in Moore v. Younger is to return to the federal court Iaw, but rather by the jurors' "inborn and olten unde- which had directed us to pursue relief in the state courts. finable" sense of tltose standards. The road ahead may be as long as that we have already Ju.stice Blackmun delivered tha opinion ol the Court, travelled, though we hope not. The research is done, in which Chiel Juslice Burger and lustices lVhite, Pow- however, and the briefs with which we were successful ell, and Rehnqui.st joine.l. Substantive portions ol the in the state courts will only need to be updated. A favor- opinion are reprinted here (with footnotes and some able action in fcderal court will have more widespread citations omitted.). implications, in any case. On Wednesday, the Board of In his summary ol the proceedings below, Justice ,-"rrustees directed us to return to federal court and carry Blqckmun emphasized that "what lthel petitioner did .he case as far as we need to go. clearly was not a violation ol state law at the time he d.id (Continued on p. 2 ) (Continued on p.4) Commit- Highlighls (from p. 1 ) York Library Association Intellectual Freedom By now you may know from press reports that the tee, and the Foundation, and have agreed to nle an U.S. Supreme Court, by a five-to-four vote, upheld the .tmicus btiet on behalf of the studcnts at the appropriate has asked the president of conviction of lowan Jerry Lee Smith tn Smitlt v . U nited time. Executive Director Krug pres- Stares. We entered this case at the appeals court level the ALA Young Adults Services Division, who was group after Smith had been convicted in U.S. District Court in ent at the meeting, to request that the appropdate Iowa for mailing allcgedly obscene materials through in that division assist us by identifying the issues con- the U.S. postal service within Iowa. Since Iowa had cerning young people's rights that should be addressed. repealed its obscenity law as far as it related to adults, In the meantime, the case has not progressed. The the Smith case seemed to provide a vehicle for seeking NYCLU filed the case in the New York State courts. clarification of the community standard rules. Carrying The Island Trees Board of Education succeeded in hav- the appeal to the U.S. Supreme Court, we argued that ing it moved to lederal court, but to date the lawyers lor the District Court which convicted Smith should have Pico have taken no further action, either to accept the jurisdiction been directed to apply the community standard estab- federal court or to have the case returned lished by the Iowa legislature when it decriminalized to the state court. Until they do, nothing can happen on obscenity. the issues, and we can only wait. The Supreme Court, in upholding Smith's conviction, Violence in the Media ruled that the jurors' "own knowledge of the views of the average person in the community" are the source of The new case discussed by the Foundation was Niemi applicable community standards. Since a jury is not se- v. NBC. The case derived from the NBC television pro- lected until after an act has been committed, there is no gram entitled "Born Innocent," which some of you may way of knowing from what community they will be se- have seen. The program concerned a girl in trouble lected or of determining what community standards who at one point in the broadcast was confined in an apply. The Court also held that a state legislature may institution for delinquent girls. In one scene, the girl not define the "applicable standard of prurient interest was the victim of an artificial rape. The program sub- for all communities in the state." The Court further sequently dealt with her escape from the reformatory ruled that the work itself is the only proof that the prose- and her later problems. One of the messages of the pro- : cution must present, with no requirement that there be gram was clearly the lack of safety provided by such evidence on the issue of obscenity or on the community institutions. standards which should be applicable. A few days later Olivia Niemi, a minor, was the vic- Our general counsel, William D. North, prepared an tim of a similar artificial rape at a beach. One of the analysis of the majority decision and its implications for perpetrators of this act said she had seen or had heard librarians. After considerable discussion. the Board ol about the broadcast of "Born Innocent." and on that Trustees referred his analysis to the ALA Intellectual ground Niemi's mother sued NBC. Freedom Committee for study. In due course you will, NBC won in the lower court, but when Niemi ap- qmicus no doubt, receive recommendations from that commit- pealed, the network asked us to file an br\ef relating to the First Amendment issues involved. The Executive Committee of the Foundation, acting on be- Censorship on Long lsland half ol the Board of Trustees, decided we should do so. The third case discussed by the Foundation Board The implication of this case for librarians is clear. was Pico v. Board ol Education, better known as the If the plaintifl's arguments are accepted, then the victim Island Trees School District case, frlcd by the New York of any crime kidnaping, robbery, rape, murder-could Civil Liberties Union on behalf of students. claim damages if the wrong-doers can merely be per- At Midwinter the Board of Trustees authorized the suaded to blame their crime on something they read, Foundation to enter this case in whatever way would be heard or saw. Whcn you consider the acts of violence most effective. We sought to llle a suit on behalf of with which our literature is filled. it becomes obvious librarians as a class but were unable to find a librarian that accepting the view that "monkey sec, monkey do" with standing in whose name the case could be filed. applies to all humankind could only lcad to endless and Repeated attempts to find other ways to become in- direct eensorship. Even admitting that therc are sick and volved were similarly frustratcd. Despite criticism in the deranged people among us, to accept a theory that ma- library press that the Foundation was failing to act in terial which might lead them to act in anti-social ways this case of flagrant censorship affecting libraries.