THE NATIONAL COALITION AGAINST CENSORSHIP NEWSLETTER SPRING 2012 NUMBER 116 NCAC BOARD Michael Bamberger Joan Bertin Judy Blume Susan Clare Chris Csikszentmihalyi Chris Finan Eric M. Freedman Robie Harris Phil Harvey Michael Jacobs Chris Peterson Larry Siems Emily Whitfield
COUNCIL OF ADVISORS Amy Adler Helene Atwan Julian Bond Rev. John Harris Burt James Cromwell Norman Dorsen Gail Edwin Frances FitzGerald Rev. Carl E. Flemister Danny Goldberg Victor Gotbaum Franklyn S. Haiman Marjorie Heins David Henry Hwang Rhoda H. Karpatkin Tony Kushner Sylvia A. Law S Jay Levy Pamela A. Mann Gail Markels Jay Mazur Joyce D. Miller Victor Navasky Aryeh Neier Robert M. O’Neil Pat Scales Stanley K. Sheinbaum Nadine Strossen Cleo Wilson Susan N. Wilson
Arizona: The Censorship State In January 2012, when Tucson Unified School District (TUSD) students returned from a long weekend, they found teachers boxing up books, and already emptied classroom bookshelves. Literally hundreds – perhaps thousands – of books were packed up and sent to a warehouse. Some of the boxes were marked “Banned.” Students were witnessing the shutdown of the district’s acclaimed Mexican-American Studies (MAS) program. The Arizona Superintendent of Public Instruction had killed a successful academic program because “although it can benefit all students, [MAS] exists primarily to serve Latino students" (note: 60% of students in TUSD are Mexican-American) and contains references to “white people as being ‘oppressors.’” Is education in Arizona falling victim to the strident political conflict over immigration that is plaguing the state?
in its entirety and to remove all books that were used in MAS classes. Teachers were instructed that they could not “use the MAS curriculum,” and that “the focus of student learning must not exclusively trail back to MAS curriculum and issues.” To make sure teachers were sufficiently scared away from MAS issues, officials advised them that student work would be collected by an “evaluator” to ensure compliance with the policy. The final deathblow came when the board voted not to renew the contract of Sean Arce, the former director of the MAS program. Responding to the ensuing outrage in the community, the district denied that books were censored, because a couple of copies remained available in the library. library. While in some cases cases censorship censorship may be hard to define, this is not one of them. Not only is this censorship, but it is the worst kind of political censorship intended to suppress ideas some public officials do not like. The books were removed and courses cancelled for one reason only: the political ideas they contained.
In April 2010, less than three weeks before approving the notorious SB 1070, the strictest anti-illegal immigration measure in recent U.S. history (currently subject to litigation), the state enacted SB 2281, Illustration by Lalo Alcaraz a law prohibiting any “instruction” that The MAS program is not the only case is “designed primarily for pupils of a particular ethnic where Arizona state lawmakers have tried to legislate group,” advocates “ethnic solidarity,” or promotes silence: A proposed bill introduced in February would “the overthrow of the United States government” and penalize teachers who engage “in speech or conduct “resentment towards a race or class of people.” that would violate the standards adopted by the FCC concerning obscenity, indecency and profanity.” In 2011, the state’s Superintendent of Public Teachers who read aloud from certain classic novels, Instruction, John Huppenthal, who as a state legislator or even discuss infringing passages from them, might in 2010 had sponsored the bill, decided that the MAS risk termination if the bill becomes law. program violated the law. He found that content used in some classes promoted “resentment towards a race Broad-based student and community protests show or class” and ruled that, unless the MAS program was the people of Arizona will fight to preserve education dismantled, the district would lose millions in state and freedom of speech in their state. Legislators funding. The district voted to eliminate the program should heed their rising voices. N C A C
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NCAC PARTICIPATING ORGANIZATIONS Actors’ Equity Association
The First Amendment In The Courts
American Association of School Administrators American Association of University Professors American Association of University Women American Booksellers Foundation for Free Expression American Civil Liberties Union American Ethical Union American Federation of Teacher Teacherss American Federation of Television & Radio Artists American Jewish Committee American Library Association American Literary Translators Association American Orthopsychiatric Association American Society of Journalists & Authors Americans United for Separation of Church & State Association of American Publishers Authors Guild Catholics for Choice Children’s Literature Association College Art Association The Creative Coalition Directors Guild of America The Dramatists Guild of America Educational Book & Media Association First Amendment Lawyers Association International Reading Association
Decision Golan v. Holder Decision In a 6-2 vote, the Supreme Court upheld the constitutionality of a law that will restore copyright protection to foreign works that have previously been in the public domain in the U.S. The law was part of a global trade agreement requiring countries to protect works created in other member states unless the works’ copyright term has expired in either the country where protection is claimed or the country of origin. Previously, Previously, the only foreign authors eligible for Copyright Act protection were those whose countries granted reciprocal rights to American authors and whose works were printed in the United States. All other foreign works were in the public domain.
Lambda Legal Modern Language Association National Center for Science Education National Communication Association National Council for the Social Studies National Council of the Churches National Council of Jewish Women National Council of Teachers of English National Education Association National Youth Rights Association The Newspaper Guild/CWA PEN American Center People For the American Way Planned Parenthood Federation of America Screen Actors Guild Sexuality Information & Education Council of the U.S. Society of Children’s Book Writers & Illustrators Speech Communication Association Student Press Law Center Union for Reform Judaism Union of Democratic Intellectuals Unitarian Universalist Association United Church of Christ, Office of Communication United Methodist Church, United Methodist Communications Women’s American ORT Writers Guild of America, East Writers Guild of America, West
The plaintiffs in Golan v. Holder argued argued that the Copyright Clause in the Constitution does not grant Congress the authority to remove works from the public domain and an d resurrect copyright. They also argued that the act violates the First Amendment by imposing copyright restrictions on works that previously could be copied, performed, and re-mixed freely. The majority disagreed. Justice Ginsburg, writing for the majority, insisted that “Nothing in the historical record, subsequent congressional practice, or this Court’s jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain.” Justice Ginsburg claimed the First Amendment concerns in the case would be served by the fair-use doctrine.
NATIONAL COALITION AGAINST CENSORSHIP Joan E. Bertin, Executive Director Dalton Burns, Administrative Assistant Svetlana Mintcheva, Director of Programs Michael O'Neil, Communications Coordinator Barbara Pyles, Business Manager Mary Reinke, Accounting Cynthia Villani, Librarian Emily Whitfield, Guest Editor Censorship News Founding Editor: Roz Udow (1926-2006) Design: Jeanne Jeanne Criscola/Criscola Design
19 Fulton Street, Suite #407, New York, NY 10038 tel: (212) 807-6222, fax: (212) 807-6245 e-mail:
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In response to Justice Breyer ’s dissenting opinion that the law brings about higher prices and seriously restricts dissemination without providing any additional incentive for the production of new material, the majority claimed that each individual copyright law need not, in itself, stimulate new creations and that it is regulations in the aggregate that do so. The stakes were high for the musicians, educators, performers, publishers, archivists, and distributors who brought Golan to Golan to court. Some have gone to great effort and expense to curate, restore and distribute works that were in the public domain, including symphonies by
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Stravinsky, Prokofiev and Shostakovich; Stravinsky, books by C.S. Lewis, Virginia Woolf and H.G. Wells; films by Federico Fellini, Alfred Hitchcock and Jean Renoir; and artwork by M.C. Escher and Picasso. The ability to perform, share and build upon these works now requires a licensing fee, which in some cases is prohibitive. The Copyright Clause attempts to balance free speech interests with the need of intellectual property creators to profit from their labor. In affirming the law, the Court is not only creating the possibility that millions of works will be eliminated from the public domain, but also giving a green light to Congress to do so again in the future. Stolen Valor The Supreme Court will soon decide the Constitutionality of the 2006 Stolen Valor Act, which was designed to punish false claims of U.S. military honors. The test case is U.S. v. Alvarez, Alvarez, wherein California politician Xavier Alvarez has been charged with repeatedly claiming to have won the Congressional Medal of Honor.
During oral arguments, Alvarez’s attorney did not dispute that his client lied. Rather,, the defense (and a number of Rather free speech advocates) warned that the law cleared the way for governments to criminalize any number of falsehoods, with subjects ranging from marital fidelity to possession of a high school diploma. The government, however, has argued that false speech enjoys no protection under the First Amendment, except for a “breathing space” reserved for matters of political contention, in addition to familiar protections for parody and satire. That “breathing space” may satisfy the Court, which has scoffed at the notion of government playing the role of “Ministry of Truth.” The Court may choose to sidestep the issue of criminalizing false speech entirely, and uphold the Stolen Valor Act’s protection of military honors as a kind of government defense of trademark or intellectual property. property. The more narrow the ruling, the lower the chance to interpret the law as granting government ability to punish citizens for “little white lies,” and hence the better for free speech.
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Of Sticks, Stones and Cyberbullying In recent years, at least 20 states have either amended existing antibullying and school safety laws to include language prohibiting bullying via electronic means, or have created separate statutes focusing on cyberbullying.
includes “taunting; threatening; intimidating; insulting; tormenting; humiliating,” all of which can be subjectively interpreted. Violators would face an “unclassified misdemeanor by a fine of up to one thousand dollars and/or up to one year imprisonment.”
Definitions of cyberbullying vary in the scope of behavior they cover.. Some state statutes and school codes describe it as a type of cover criminal harassment or stalking. Others distinguish cyberbullying from criminal harassment, using the term to describe milder forms of online bullying. And, finally, there are codes that use cyberbullying as a term encompassing everything from mildly aggressive conduct online to actual criminal harassment (i.e. willful, malicious and repeated acts directed at a specific person committed over a period of time and causing this person to suffer substantial emotional distress and physical fear).
In our review of more than 50 cyberbullying policies from schools all over the country, we’ve found that the most free-speech friendly policies address cyberbullying through education. NCAC supports policies that seek educational means to deal with problems arising from students’ use of new technologies and which recognize students’ First Amendment rights.
Protecting kids from potentially devastating personal attacks is certainly a laudable goal, especially when it comes to those who are particularly vulnerable to harassment, such as lesbian, gay, bisexual or transgender teens. But some of these laws focus focus more on draconian, zero-tolerance policies that punish speech rather than promote education and guidance that can help prevent bad behavior to begin with. The problem is further compounded when officials attempt to punish students for behavior that occurs outside school grounds. And in many cases, the laws are so broad and vague that they could run afoul of the First Amendment. For For instance, a law introduced earlier this year in the New York York State Assembly criminalizes “abusive behavior,” which
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NCAC congratulates the winners of our 2011 Youth Free Expression Film Contest, whose films were screened at the New York Film Academy on March 31st. 1st Place: The Right To Bully? by Bully? by Jake Gogats and Caitlin Wolper; 2nd Place: Don't Use Your Rights to Make Wrongs by Summer Lee; 3rd Place: Expressing Freedom in 140 Words or Less by Less by Patrick Rooks. The 2012 contest theme will be "You're Reading WHAT?!?" and asks participants to reflect on when and how books are taken away from youth and classrooms. Free Speech defenders and book-lovers were happy to bid adieu to Vern Minor, the Superintendent of Schools for Republic, MO, who pushed for bans Five and Twenty Boy on Slaughterhouse Five and Summer . The Republic School Board defeated his contract renewal in a 4-3 vote, and Minor subsequently resigned. Minor had also wanted to ban all R-rated films from high school classes (including Saving Private Ryan and Ryan and Schindler's List). List). So it goes.
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Instead of creating criminal laws that restrict student speech and are unlikely to hold up in court, legislators need to ensure that schools are addressing all forms of bullying (both online and offline) and educators need to vigorously enforce laws already on the books that could address some of the more egregious situations, such as anti-stalking and cyber-harassment laws. Schools should also offer training and advice to parents and guardians so that the process of education continues at home. Put simply, cyberbullying is the 21st century version of a very long-standing and troubling problem and should be addressed accordingly: as part of educators’ mission to guide students in civil behavior. behavior. Schools have a long tradition of providing students with guidance on how to function in a civilized society; they should continue that tradition by teaching students how to make wise decisions online. — Joan Bertin
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Fast Life, Life, a mural by French street artist MTO, was whitewashed in Sarasota, Fl, because of complaints that it resembled a gang sign. The mural was part of the first graffiti section of Sarasota's annual Chalk Festival.
In February February,, continuin continuing g the pattern of censoring LGBTQ content in Catholic educational institutions, Villanova University cancelled an artist-in-reside artist-in-residency ncy workshop by queer performance artist Tim Miller. And in April, Notre Dame High School in Lawrence Township, NJ cancelled a production of The Laramie Project,, a play about the reaction to the Project 1998 murder of gay student Matthew Shepard. Go Green! Starting now, you can reduce your paper mail and get CN emailed CN emailed to you. Send an email to
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The Cyber Intelligence Sharing and Protection Act (CISPA) was approved in a surprise House vote on April 27, and will go to the Senate. The Electronic Frontier Foundation and other free speech groups have condemned CISPA as "a bill that would allow companies to bypass all existing privacy law to spy on communications and pass sensitive user data to the government." There has been netroots resistance to CISPA and demands for the Senate or a presidential veto to kill the bill.
Lawrence, KS officials banned Amber Hansen's The Story of Chickens: A Revolution,, an art project that would Revolution invite locals to feed, pet and interact with chickens housed in a coop in public space. After one month, the chickens would have been butchered by a local farmer and served at a potluck at the Percolator Art Gallery. Despite the fact that chickens are killed every day at factory farms, critics claimed the installation would amount to animal cruelty.
iCensor: Censorship in a Digital Age Part 2
tweets it may see its whole operation in Egypt closed down and its employees arrested.
by Svetlana Mintcheva, NCAC Director of Programs
The New Speech Regulators: PayPal
In an attempt at compromise, Twitter announced a new policy, according to which it will conform to local laws and block tweets within a specific country upon request from an “authorized entity.” However, users in other countries will still be able to view the tweet. In addition, Twitter introduces a high level of transparency into a process that is usually invisible: the company will post a censorship notice referring to the applicable law whenever a tweet is removed and will make public the removal requests it receives from governments, companies and individuals.
The Web in 2012 is far from the free speech utopia imagined at its dawn back in the early 90’s. Terms-of-service agreements, capricious moderators and automatic systems limit what we can post on Facebook or YouTube; Amazon purges its virtual shelves of offensive content (cf. CN 115). We may protest these new – and quite insidious – incarnations of censorship but we may also defend the right of privately owned Internet platforms and online bookstores to set the rules of engagement so as to suit the community of their users.
The policy, which is as yet untested, provoked mixed response: Twitter was lauded for making transparent what other social media do quietly and invisibly, it was also criticized for siding with the official censors and doing their work. And important questions remain: Who will be the “authorized entity” entitled to ask for the removal of a message? Who will determine whether a message is, indeed, illegal? How easy will it be to circumvent the geo-specific block? The real effects of the new policy will only emerge once it is implemented.
No such ambiguity exists when the censor is a payment processor like PayPal, which exists to provide users with quick, secure and error-free handling of money transfers. Thus, outrage greeted the recent revelation that PayPal had thrown its clout behind a policy that would determine what material the public can access. The company, whose guidelines for vendors ban not only “illegal” and “obscene” material, but also “certain sexually oriented materials,” recently specified what those materials would be and gave an ultimatum to online bookstores (who depend on its services) to immediately purge books containing “bestiality, rape-for-titillation, incest and underage erotica” from their shelves.
Protecting Property Rights vs. Fr Free ee Speech: ACT ACTA A The clash between free speech rights and broad regulations aimed at extending intellectual property protection in an age of digital reproduction came to a climax in the controversy (and eventual demise) of SOPA and PIPA, the twin House and Senate bills seeking to expand protection of intellectual property online, but criticized for threatening free speech.
How could PayPal possibly justify such a policy, which, de facto, subjects consumers’ fantasies to the payment company’s standard of morality? Clearly, it cannot, and the policy was changed in response to mass protest. From now on, objectionable material will be judged on a case-by-case basis with a focus on images, rather than text.
In the meantime, however, another effort at regulation is still, and much more secretively, making headway: ACTA (AntiCounterfeiting Trade Agreement), a multilateral agreement that would target counterfeit goods but also copyright infringement on the Internet, has generated widespread public protests in Europe, though it has remained relatively unknown in the United States. The agreement has been signed by the U.S., as well as EU member states and a number of other developed countries.
It is still not clear why PayPal – or any other payment processor – should be in the business of controlling content at all or determining its legality. Such companies are neither equipped nor required to do that. Let law enforcement tackle illegal material and deal with its distributors. As for everything else, let consumers make their own choices. Local Laws, Global Communications: Twitter Twitter
ACTA has since become notorious for its lack of transparency, evasion of public discussion and Congressional review, as well as its potential threat to civil liberties, including freedom of speech. There is a heated debate around the very constitutionality of an international treaty on copyright signed without Congressional approval: for a law that is both vague and potentially threatening to the free flow of information on the Internet, the need for such a review is glaring.
Social media have increasingly global reach, but laws forbidding certain types of speech remain resolutely local. As a result, one’s expression of political dissent may be legal in the U.S. and France, but not, say, in Egypt. What is an international company to do? If it conforms to local laws and deletes the tweets of dissidents in Egypt it is criticized as violating free speech principles. If it disregards local laws and allows the
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