T h e N at i ona l coa l i t i on A g a i n s t c e n s or s h i p N e w s l e tt e r

SPRING 2008 NUMBEr 107
Judy Blume Victor Bolden Susan Clare Chris Finan Eric Freedman Stephanie Elizondo Griest Phil Harvey Marjorie Heins Damien Joyner George Kannar Gail Markels Robert M. O’Neil Larry Siems Patricia Wright Joan E. Bertin, Executive Director


A Pig-Headed Reading of the Law
Since the Smithfield case was filed, at least three other RICO actions have been brought by corporations against unions attempting to organize workers. The Wackenhut Corporation filed a RICO case against the Service Employees International Union in November 2007; Bashas' supermarket chain filed against UCFW and others a month later; and the Cintas Corporation filed a similar suit against UNITE HERE, the Teamsters, and others this March. Each of these cases was preceded by NLRB investigations involving charges of intimidation, harassment and coercion and other unfair labor practices by the company. In most cases, the charges were upheld by the Board or a reviewing court before the RICO actions were filed. The fight to secure speech rights for workers – including the rights to protest working conditions, to organize and form unions, to bargain collectively, and to strike – was a crucial and defining test of the First Amendment in the early part of the 20th Century. Labor activists met stiff resistance: organizers were beaten by private police forces hired by employers, and were jailed by law enforcement officials more sympathetic to bosses than workers. Many of these rights were written into law with the passage of the National Labor Relations Act in 1935, but the struggle to secure speech rights for labor presaged battles to come. Civil rights activists relied on speech and petition rights a few decades later, using the same tactics of protests, leafleting, picketing, and public opinion campaigns to advance their cause. These struggles not only achieved many practical gains, but also defined freedom of speech as the constitutionally-guaranteed means to achieve social and legal change without violence. Controversies over social justice are ultimately resolved in the court of public opinion. This may explain why Smithfield and other employers are trying so hard to silence the opposition. Using the threat of a costly court battle over RICO claims to chill, if not shut down, vigorous and open debate over contentious social issues is an ominous development.

council of Advisors
Amy Adler Helene Atwan Julian Bond Rev. John Harris Burt James Cromwell Adrian W. DeWind Norman Dorsen Gail Edwin Frances FitzGerald Rev. Carl E. Flemister Danny Goldberg Victor Gotbaum Franklyn S. Haiman David Henry Hwang Rhoda H. Karpatkin Tony Kushner Sylvia A. Law S Jay Levy Pamela A. Mann Jay Mazur Joyce D. Miller Victor Navasky Aryeh Neier Irwin H. Polishook Betty Ruder Pat Scales Stanley K. Sheinbaum Nadine Strossen Cleo Wilson Susan N. Wilson

mithfield Foods, the world’s largest producer of pork products, has raised the stakes in its resistance to organizing efforts by the United Food and Commercial Workers (UFCW) by filing a lawsuit alleging that the union’s advocacy violates The Racketeer Influenced and Corrupt Organizations Act (RICO), a federal law designed to combat organized crime. Smithfield and UFCW have been locked in battle over unionization for years. The RICO lawsuit came after the union launched a public campaign, Justice at Smithfield (smithfieldjustice.com), seeking to build public support for its organizing efforts. Smithfield’s suit accuses the union of economic extortion “designed to destroy Smithfield’s public image and inflict maximum economic damage.” The company seeks millions in damages and an order barring UFCW and its allies from conducting “demonstrations and other activity,” “from publishing ... statements, reports, or press releases,” and “from ... drafting, encouraging, sponsorship and/or passage of public condemnations of Plaintiffs" by City Councils, religious grous, and other entities. These activities are time-honored organizing tactics that appear, at face value, to be constitutionally protected forms of speech. The Supreme Court has held that “peaceful picketing [is] entitled to constitutional protection” even if its purpose is “to induce … customers not to patronize the employer.” Indeed, early debates on RICO had reassured critics that the law would not operate to suppress protected speech, such as anti-war protests. One of the law’s principal authors claims that it was never intended as “a weapon of terror against First Amendment freedoms.” The claims asserted by Smithfield thus appear inconsistent with the original intent of RICO. As Justice Souter noted in a concurring opinion in a case in which RICO was invoked against anti-abortion protesters, “conduct alleged to amount to … extortion, for example … may turn out to be fully protected First Amendment activity, entitling the defendant to dismissal on that basis.”

NCAC Participating Organizations
Actors’ Equity Association 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 Teachers American Federation of Television & Radio Artists American Jewish Committee American Jewish Congress 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 League of America Catholics for a Free Choice Children’s Literature Association College Art Association The Creative Coalition Directors Guild of America The Dramatists Guild of America First Amendment Lawyers Association International Reading Association Lambda Legal Modern Language Association National Center for Science Education National Communication Association National Council for the Social Studies National Council of the Churches of Christ National Council of Jewish Women National Council of Teachers of English National Education Association The Newspaper Guild/CWA Office of Communication, United Church of Christ 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 Methodist Communications, United Methodist Church Women’s American ORT Writers Guild of America, East Writers Guild of America, West

News from the Coalition
In the run-up to this summer’s Olympics, several organizations are shining a spotlight on China’s abuses of press freedom and censorship of the Internet. PEN American Center's “We Are Ready” campaign (pen. org/china) urges the Chinese government to free over three dozen imprisoned writers. Meanwhile, the ACLU has worked to ensure that protesters along the Olympic torch relay route are free to exercise their First Amendment rights instead of being herded into “free speech zones.” The Sexuality Information and Education Council of the United States (SIECUS) has published an analysis of abstinence-only sex education programs in Alabama. The report – available at siecus.org – reveals that students are being denied information about contraception, sexual health, and homosexuality. Meanwhile, the state is experiencing a marked increase in the incidence of sexually transmitted disease and teen pregnancy. Members of the Campaign for Reader Privacy (www.readerprivacy.org) are urging lawmakers to restore safeguards protecting the privacy of bookstore and library records that were eliminated by the USA PATRIOT Act. The American Booksellers Association, American Library Association, Association of American Publishers, and PEN American Center released an open letter to members of Congress in support of the National Security Letters Reform Act (S. 2088 and H.R. 3189). Booksellers and librarians are currently barred by a gag provision from revealing the receipt of a National Security Letter (NSL), used to obtain Internet records, or a Section 215 order, used to demand all other records. (A federal district judge has held this provision to be unconstitutional, but that decision has been stayed on appeal.) The legislation would limit the duration of the gag and restrict FBI searches to records of people suspected of terrorism or espionage. The letter cites recent reports by the Inspector General of the Justice Department showing that the FBI repeatedly has abused its authority to issue NSLs. The House and Senate Senate Judiciary Committees held hearings on National Security Letters in late April. The Texas Council of Teachers of Language Arts, an affiliate of the National Council of Teachers of English (NCTE), won a dispute as the Texas State Board of Education moved to change statewide English, language arts, and reading curriculum standards. The proposed revisions originally included a rule calling for reading lists of "recommended" titles, which many teachers and publishers routinely interpret as creating barriers to assigning any books not on the list. Such a list would have severely restricted teachers' ability to select reading materials responsive to the needs and interests of their students, especially since books by and about Latinos were poorly represented on the list. In a letter to the State Board of Education, NCTE Executive Director Kent Williamson urged Texas “to adopt Standards that encourage teachers to use their pedagogical knowledge” in order to prepare students for the literacy demands of higher education and the workplace [and] help each student build the literacy skills needed for success in the 21st century." The Board adopted new standards in late May after agreeing to drop this clause. The Texas Board of Education is also keeping the National Center for Science Education on its toes: proponents of creationism or "intelligent design" are one vote short of a majority on the Board, and are seeking a state-wide mandate that science textbooks include discussion of the "strengths and weaknesses" of evolution. Legislators in a half dozen other states are pressing for similar measures. A growing coalition is calling for reforms of U.S. surveillance practices, particularly with respect to restoring legal oversight of the government's wiretapping program. The Union for Reform Judaism's Religious Action Center recently called on members and supporters to write to Congress, explaining, "When government power to spy on people goes unchecked, the ability to express unpopular opinions freely and openly is eroded—a person can become the target of an investigation simply because of the organizations she participates in or the books he reads. In the fight against terror and for freedom for others, we must never abandon our commitment to our own freedom and the rule of law."

National coalition Against censorship
Joan E. Bertin, Executive Director Celeste Doaks, Administration Justin Goldberg, Communications Lawrence Horne, Development Claire Karpen, Youth Programs Svetlana Mintcheva, Arts Advocacy Isabelle Katz Pinzler, Special Counsel Katherine Rabb, Science and Censorship Mary Reinke, Accountant Rebecca Zeidel, Research Assistant / Coalition Coordinator Censorship News Editor: Justin Goldberg Design: Jeanne Criscola/Criscola Design Illustration (front page): Daryl Cagle (with permission) 275 Seventh Avenue, #1504, New York, NY 10001 tel: (212) 807-6222, fax: (212) 807-6245 e-mail: ncac@ncac.org, web: www.ncac.org Copyright ©2008 National Coalition Against Censorship Permission is granted to reprint – please credit NCAC. NCAC is a 501(c)(3) nonprofit organization

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The Ultimate Taboo
Only 6 years ago, the Supreme Court held that “virtual” child pornography – sexual depictions that appear to, but do not, involve actual children – is protected by the First Amendment, for the same reasons that simulated sex in films like Lolita is protected. The Court reasoned that, no matter how distasteful the material may be, if no real child is exploited, there is no basis for suppressing expression. The present Court pays lip service to this precedent even as it undermines it. As a result of a decision issued on May 19, US v. Williams, it is now a crime to “advertise, promote, present [or] distribute” virtual child pornography – which is protected by the First Amendment – if the person doing it thinks it is real or intends another to think so. This result criminalizes intentions and statements about legal material. But why should we care about such “low

value” speech? One reason: the way the Court reached this result is not good news for the First Amendment. While conceding that the law chills some protected expression, the majority concluded it is not “substantially overbroad.” To dispense with the lower court finding that the statute is overly vague, the Court concluded the legal system could sort those cases out – small comfort to those who are forced to defend against false charges. This is not an insignificant concern. Overzealous prosecutors who equate child nudity with pornography have charged parents and grandparents with crimes for taking pictures of their children in the bath, and charged academics for doing online research on erotic art. While these cases did not involve pandering, the statute approved by the Court will provide another way to target people who may have done nothing more than send an unwise e-mail with an attached photo that catches the eye of a crusading – or campaigning – prosecutor.

As the dissent observes, there is no evidence of a “prosecutorial crisis” in enforcing the laws against real child pornography, and no evidence of harm to actual children from virtual pornography. But the existence of “moral panic” around pedophilia tends to extinguish rational analysis. Those who have dared to explore the issue thoughtfully in the past have already been vilified , had their work censored, lost their funding, and in one case become the object of a Congressional resolution condemning their research. The recent decision may rid the internet of some disturbing, if protected, material, but it will also further exacerbate the panic around children and sexuality and chill speech that has real value, including scholarly and academic discourse on the topic. This would be a truly perverse result of the decision. It is impossible to address the problem of real child pornography without being able to study or discuss it freely. — Joan Bertin

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 Arkansas Tech University postponed a student production of John Weidman and Steven Sondheim’s “Assassins” – a historical play about presidential assassins – because administrators thought the sight and sound of gun violence in the play could be disturbing in light of recent campus shootings. Under pressure from the playwright and NCAC, the university reversed its position and let the play go on.  A federal appeals court in New York recently ruled that online (but off-campus) student speech could be penalized if it might “portend disruption” of school activities. In this case, a student’s blog complained about the threatened cancellation of a music festival, called the school administrators “douchebags,” and urged others to complain and “piss off” the administration. The Court found the language “potentially disruptive” and said it “diverted” staff from their “core educational responsibilities.” Message to students: sit down and shut up.  The 2008 edition of the Long Island Coalition Against Censorship’s “Censorship in Schools and Libraries” exhibit is available for display in libraries and classrooms for Banned Books Week in September. Contact coalcen1@ verizon.net or visit the-licac.org for details.

 Indiana Governor Mitch Daniels signed  In late April, New York Times reporter David into law a bill that will require mainstream Barstow exposed an extensive propaganda bookstores to register with the governor and program in which retired military officers, pay a $250 fee if they sell “sexually explicit many of whom also serve as consultants materials” – a term that could include Lady to military contractors, were briefed by Chatterly’s Lover, Fear of Flying, and The Joy the Pentagon and dispatched to appear of Sex, among many other titles. Expect a on network and cable news programs as challenge in court. "independent analysts." Donald Rumsfeld, meanwhile, referred to them as his "message  A California college instructor in American force multipliers." Over 40 members Studies was denied a job because she of Congress have issued a call for an refused to sign a "loyalty oath," which is investigation. required of all US citizens employed by the state – but not by employees who are not  Rensselaer Polytechnic Institute in Troy, NY citizens! Wendy Gonaver, a Quaker, claimed closed "Virtual Jihadi," a video art exhibit that the oath violated her religious beliefs. by Iraqi-American artist Wafaa Bilal, and NCAC Board member Marjorie Heins has announced the creation of a committee to published a history and critical study of “vet and monitor” artwork on campus after these oaths, which she calls "coerced rituals the College Republicans vocally opposed of political orthodoxy, and ... threats to free the exhibition. The work was then displayed thought." Read it at www.fepproject.org. by The Sanctuary for Independent Media, a private exhibition space. But the controversy  Fresh from the book censorship wars: Of did not end there: The City Commissioner for Mice and Men, Native Son, and Brave New Public Works led a protest demonstration at World have been pulled from high school the opening, and in a strange and suspicious literature classes in Appling County Georgia, coincidence, the next day The Sanctuary was at the request of a local religious leader and in closed for a building code violation. Wafaa spite of educators’ recommendation that the Bilal is no stranger to censorship, having had books be retained as they are often included his work suppressed in Saddam’s Iraq long in SAT and Advanced Placement exams. before it was suppressed in Troy, NY.
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n a highly publicized incident this March, the San Francisco Art Institute cancelled Don't Trust Me, an exhibition by Algerianborn French artist Abdel Abdessemed consisting of video footage of animals being killed by a single blow from a sledgehammer. The cancellation of both the exhibition and a planned panel discussion about the work, came in response to threats of violence directed at staff members and their families by animal-rights activists. Can moral outrage Comments on the blog nonstarvingartists.com bear out the deep disagreement over Don’t Trust Me ever justify such threats? The images in Don't Trust Me are deeply of silencing those who outrage us. That does disturbing, though probably less so than practices of killing animals, the installation not mean that we should be mute in the face videos of animal abuse distributed for advomakes it impossible to disregard our personof art that offends our moral sense. There are cacy purposes by some of the animal rights al relationship to the slaughter of other living many channels to voice one’s anger that do organizations that protested the exhibition. creatures, including our daily disavowal of not include threats of violence. In the case The difference is that Abdessemed’s videos the mass killing necessary for the “food proof Don't Trust Me, after initially suspendlack context, and thus offer no clear moral duction” process. ing the show in response to an outpouring message. Had Abdessemed stated that his Notwithstanding the powerful effect of anger, SFAI planned to hold a discussion work condemned practices of slaughtering Don't Trust Me has on the viewer, the posforum around the exhibition. Such a forum animals in Mexico (where the footage was sibility that the animals were killed just for would have been an opportunity for all sides ostensibly shot), for instance, it seems unthe camera – even if they were killed instanto express their perspectives and to explore likely that SFAI would have been subjected taneously with no pain and would have been the issues and ethical questions Abdesseto the threats that caused it to cancel the slaughtered anyway – undeniably raises semed’s work raises. Threats to “gather up the exhibit. rious ethical questions. But the function of children [of staff members] and bludgeon Yet it is precisely the art is not necessarily, or their heads,” however, precluded the forum, lack of moral message, always, to provide moral as well as any reasoned discussion in which or didactic or utilitarguidance, or to reflect artist, curator, activists, and audience could the prevailing moral ian purpose in Abdesseshare their concerns. standards of the day. By med’s work which forces No matter whether we find Abdesseexploring taboos and us to confront the guilty med’s moral provocations defensible or incoherence of our moral testing the boundaries of morally unacceptable, we need to draw a firm the permissible, art can relationship to animals: line where threats of violence are concerned. reveal the contradictions We identify with them To the extent that our society harbors such within our moral systems when we see them care violent intolerance, it invites untold others and force us to re-examfor their young or expewho are convinced of the moral rectitude ine our assumptions. By rience hunger and pain, of their cause to adopt similar tactics. This daring to face the horror we make some of them A still image from Don’t Trust Me time it was animal rights activists, and next of existence and reprepets and best friends, time it might be religious or political extremsent it in all its stark brutality, art may indeed but we also routinely kill them, whether for ists. Every time threats of violence succeed provide insights available nowhere else. food, clothing, scientific research, sport, or in silencing expression, fear’s stranglehold Predictably, faced with material that conbecause we view them as “pests.” By not on the imagination tightens, stifling our fronts our beliefs and unsettles our emotions, explicitly telling the viewer what to think, Abvery ability to fully explore the world and our the first impulse is to want it suppressed by dessemed’s work elicits a much more complace in it. any means available. The need to coexist in plex emotional response than, say, a PETA a diverse society, however, demands that we (People for the Ethical Treatment of Animals) — Svetlana Mintcheva resist the impulse to use violence as a way video. By not overtly condemning distant


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