Braille Monitor July 1986
by Bonnie Miller and Nolan Crabb
(The following article appears in the Winter, 1985, edition of DIALOGUE. With its usual propensity for picking the wrong lawsuit at the wrong time, and doing great harm into the bargain, the American Council of the Blind has allowed its name to be associated with the filing of an action against the Librarian of Congress. The short-term advantages of the publicity which the ACB has received will be outweighed by the long-term disadvantages. The blind are hurt; the library program is endangered; and only PLAYBOY magazine benefits.)
A lawsuit has been filed against Librarian of Congress Dr. Daniel Boorstin by PLAYBOY Enterprises, Inc., the American Council of the Blind, the Blinded Veterans Association, the American Library Association, and three blind individuals.
According to Burton Joseph, Esq., Special Counsel to PLAYBOY Enterprises, Inc., the suit requires Boorstin to consider PLAYBOY on the same literary basis as any other magazine. It also declares any attempt to eliminate funding for the Brailling of any magazine based on its editorial content, a violation of the First Amendment. The plaintiffs, stated their right to receive information, PLAYBOY'S right to be free of censorship, and the plaintiff's librarian's right to choose and make available a wide range of information have all been violated.
Although Boorstin has expressed his displeasure at the elimination of the funding for the Braille PLAYBOY, and has termed the action as censorship, adding that "censorship has no place in a free society, " he is the recipient of the lawsuit, filed December 4, 1985. David Ogden, an attorney for the plaintiffs, said, "Boorstin is the official charged by statute--therefore, he is the one. Even if the statute is unconstitutional, he must obey. At his direction, the Brailling of the December PLAYBOY was cancelled, as was the Brailling contract."
"You cannot sue Congress or a Congressional representative, but you can sue an employee of Congress," said Oral O. Miller, National Representative of the American Council of the Blind. Boorstin decried the amendment but "felt obliged to follow the mandate of Congress," Joseph said.
"He got caught in the middle and made a very courageous statement," said Ogden.
Jean Tucker, Assistant Information Officer for the Library of Congress, said Boorstin would respond to the lawsuit only through the United States Attorney's Office. As the respondent, Boorstin has sixty days to prepare a reply to the lawsuit.
"I am sure Dr. Boorstin will refrain from making any statements until he is required to do so by the legal deadline," she said.
"When this issue was originally voted on in July, many Congressmen didn't even hear the debate before voting," said Miller. "As you remember, Congress was voting on a legislative appropriation budget. After the amendment was proposed, a voice vote was taken. At that time, the Chairman indicated that those opposed to the amendment that would cut funding for PLAYBOY had won. Congressman Chalmers P. Wylie (R-Ohio) demanded a quorum call.
"Bells rang all over Capitol Hill and many Congressmen came in for the vote. They saw this as merely a cut in their own budget and they thought it would look good to the folks back home. They really didn't know what the implications were, and Congressman Vic Fazio (DCalifornia) has told me that many of his colleagues were 'ashamed and embarrassed.'" Joseph said that Congrssmen Fazio and Jerry Lewis (R-California) were filing a friends of the court brief.
The plaintiffs are very optimistic about the success of the suit. "This is definitely a clear-cut violation of the First Amendment," said Miller. "The issue here is the content of PLAYBOY, not the cost of production. If cost had been the issue, I don't believe they would have cut funding of the sixth most popular magazine in the NLS's program.
"Congress itself chose in this case to cut funding for a magazine selected by a long established authorized process. That selection involves decisions by librarians and readers. Congress has long acquiesced to those decisions. In this case that selection procedure was totally overlooked."
A spokesman for Rep. Wylie stated that the Congressman is equally optimistic that the suit will be to no avail. "By policy, principle, and precedence," he stated, "the judiciary branch of the government does not interfere with the actions of the legislative branch. There have been exceptions, of course, but they are very rare." "After the amendment was passed, PLAYBOY Enterprises received many phone calls for help from various blind organizations, including the ACB," said Joseph. "I raised the issue with management, who said that they owed it to their readers, although at great expense and no profit, to challenge the unprecedented and unconstitutional budget amendment on behalf of the BVA, ALA, ACB, and ourselves.
"As everyone knows by now, PLAYBOY makes no money off the Braille edition of our magazine, which simply covers our editorial content. We have received contributions from the ACB and others, but we are footing most of the bill. "The lawsuit will run between $25,000 to $100,000 or more if we have to fight it all the way to the Supreme Court. We are prepared to do this. We are committed." Kenneth
Jernigan, President of the National Federation of the Blind, disagrees with PLAYBOY Enterprises' stated motives regarding the lawsuit. "PLAYBOY is using the lawsuit as a way of getting free publicity. I have in my possession memos written by PLAYBOY Enterprises' attorneys, one lengthy memo in particular, regarding the good publicity that would result from that lawsuit." The NFB is not participating in the lawsuit. Jernigan explained why. "We were not invited to participate, nor would we have had we been invited. As far as I am concerned, this is nothing more than grandstanding on the part of the American Council of the Blind. Legal action is not appropriate. The best way to resolve this situation is to work closely with Congress. After all, the action Congress took is valid only for 1985.
"I believe we could have gotten PLAYBOY restored with relative ease in subsequent years, but the lawsuit has changed all that. There is a definite chill on Capitol Hill as a result of the action of PLAYBOY and the ACB." Jernigan said the Federation is working closely with "key members of Congress" to restore PLAYBOY in future years.
"The constructive way to restore PLAYBOY is not by crying about censorship. All publications in Braille are censorship because some magazines are Brailled while others are not. The question is, who does the censoring? Do you let the Library of Congress do it or do you let Congress do it? It is better to let the Library do it than Congress." Jernigan is pessimistic about the success of the lawsuit.
"I think the lawsuit will culminate in more negative than positive results. These people are on shaky legal ground when they say that Congress does not have the right to withhold funds. I believe they will set a bad precedent in this suit which could make it more difficult for other magazines to be put into Braille.
"We have never agreed with the action Congress took last July. But we believe that there is a better way to resolve the issue."