ABFFE Urges Supreme Court to Support Free Speech

The American Booksellers Foundation for Free Expression (ABFFE), the bookseller’s voice in the fight against censorship, is urging the U.S. Supreme Court to uphold a lower court decision that struck down a provision of a federal child pornography law that bans “pandering” advertisements for books, magazines and other works that are protected by the First Amendment. Under the PROTECT Act of 2003, a producer, distributor or retailer can be sentenced to up to 20 years in jail for advertising a work “in a manner that reflects the belief, or that is intended to cause another to believe” that it contains sexually explicit pictures of minors.

ABFFE President Chris Finan said the PROTECT Act goes too far. “It is already against the law to advertise child pornography,” he said. “What this law does is to punish speech about books that are protected by the First Amendment.” In striking down the law, the 11th Circuit Court of Appeals, a conservative court, concluded that it could be used to send someone to jail for 20 years for advertising as “child pornography” works that neither depict children nor are sexually explicit, including Walt Disney’s Snow White, Finan said. A person can even get 20 years for offering to sell a work that doesn’t exist.

In an amicus brief filed in the Supreme Court, ABFFE has joined the Association of American Publishers, the Freedom to Read Foundation and other book industry groups in warning of the potential chilling effect of this provision of the PROTECT Act. It argues that producers, distributors and retailers must be free to advertise First Amendment-protected books and other works without the fear that a prosecutor will charge them with a crime. For example, a prosecutor who is unhappy about the sale of photography books that contain pictures of nude children might indict a bookseller for advertising child pornography based on the jacket blurbs promoting the books. (In 1997, two Barnes & Noble stores in Alabama were indicted for violating the child pornography laws by offering to sell books by photographer Jock Sturges. The charges were later dropped.) “First Amendment rights should not be limited by a prosecutor’s surmise as to the intent of a publisher or retailer, particularly when the underlying material is lawful,” the brief states. (To read the amicus brief, click here.)

The 11th Circuit concluded that the pandering provision of the PROTECT Act runs counter to the Supreme Court decision in 2002 in Free Speech Coalition v. Ashcroft. In that case, the Court ruled 6-3 that the Child Pornography Prevention Act violated the First Amendment by banning the sale of “virtual” or simulated depictions of minors when the purpose of the law should be to protect real children from being used in the creation of pornography. It also rejected a provision of the act that banned the pandering of non-obscene material as child pornography. The Supreme Court is scheduled to hear oral argument in this case on Oct. 30.

The current case, U.S. v. Michael Williams, originated in the prosecution of a Florida man for both advertising and possessing child pornography. Williams agreed to plead guilty to both crimes and is now serving two concurring five-year prison terms. His prison term will remain unchanged no matter what the Supreme Court decides in this case.


ABFFE Book of the Month is Norman Pearlstein's "Off the Record"

The American Booksellers Foundation for Free Expression (ABFFE), the bookseller’s voice in the fight against censorship, has chosen a book about the fight to protect the confidentiality of anonymous sources as its book of the month for September.  In Off the Record: The Press, the Government and the War Over Anonymous Sources (Farrar, Straus and Giroux, 978-0374224493), Norman Pearlstine, the former editor in chief of Time, Inc., tells the story of his losing battle to protect the anonymity of Karl Rove, who was the source of a story by Time reporter Matt Cooper that confirmed that Valerie Plame worked for the Central Intelligence Agency.  “This is a fascinating book about the critical role that anonymous sources play in providing us with information about our government,” ABFFE President Chris Finan said.  “It provides an exciting insider’s view of the fight waged by both Time and the New York Times against Special Prosecutor Patrick Fitzgerald.  At the same time, it reflects deeply on both the pros and cons of how the press uses confidential sources.”

Pearlstine is a controversial figure, particularly among journalists.  He was harshly criticized when he decided to turn over Cooper’s notes after the Supreme Court rejected appeals by Time and the New York Times.  His book urges journalists to be more discriminating in granting sources confidentiality.  (In retrospect, he believes it was a mistake to grant it to Rove.)  Nevertheless, Pearlstine believes that confidential sources are an essential source of information, and he is a strong advocate of a federal shield law to protect them.

To read an interview with Pearlstine, click here.

The ABFFE Book of the Month feature is an effort to help publicize important books about free speech.  The first ABFFE Book of the Month was Bruce Barry’s Speechless: The Erosion of Free Expression in the American Workplace (Berrett-Koehler Publishers, 978-1-57675-397-2).