Griswold v. Driscoll

Concerning Cyber-Library First Amendment Rights

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Background

In 1999, the Massachusetts Board of Education released for comment a draft of “The Massachusetts Guide to Choosing and Using Curricular Materials on Genocide and Human Rights” (“Draft Guide”) to members of the Board. The Draft Guide was issued pursuant to a Massachusetts statute that required the Board to recommend to teachers a curriculum on genocide and human rights issues, as well as guidelines on teaching methods.

The Draft Guide recommended that teachers who wished to explore the topics in depth refer to outside non-fiction materials, which "should provide" "coherent arguments and differing points of view on controversial issues." Accordingly, the resources section of the Draft Guide listed organizations and websites with additional information on those issues, including several that argue that the fate of Armenians in the Ottoman empire in the World War I era was the result of "genocide," as defined by a U.N. Convention. However, the resources section did not list any organizations or websites discussing the "contra-genocide theory," which holds that the events are not properly characterized as "genocide," as defined by the U.N. Convention.

The Turkish American Cultural Society of New England subsequently submitted comments and proposed bibliographic references supporting the contra-genocide theory to the Board of Education. The head of Instruction and Curriculum for the Board then reviewed and accepted some of the materials, and the Draft Guide was amended to add four of the submitted websites to the resources section. The amended version was submitted to the legislature as the "Final Guide" on March 1, 1999.

In June, 1999, the Commissioner removed the contra-genocide materials from the Final Guide, allegedly in response to political pressure, arguing that the enabling legislation required the Board to include only materials supporting the genocide theory. However, the Board did not argue that the contra-genocide materials were inappropriate or that the head of Instruction and Curriculum erred in assessing the materials. The Final Guide, without the contra-genocide materials, was posted on the Department of Education's public website.

On October 26, 2005, public school students and teachers in Massachusetts and the Assembly of Turkish American Associations filed a complaint in the District Court for the District of Massachusetts against the Massachusetts Commissioner of Education, Department of Education, and the Board of Education and its Chairman, pursuant to 42 U.S.C. ยง 1983. The complaint argues that the defendants excised the contra-genocide materials based solely on the viewpoint expressed in those materials, and thus violated the First Amendment rights of the plaintiffs. The plaintiffs' argument has several components.

First, the plaintiffs argued that the resources section of the Guide is akin to a school library, and, when posted online, is the online analog of a library. However, the District Court disagreed, holding that the entire Guide was part of the curriculum and thus "government speech" unrestricted by the First Amendment. Second, the plaintiffs argued that the statute did not require the Board to only list materials supporting the genocide theory. However, the court held that the statute did so restrict the Board. Finally, the plaintiffs argued that, under Board of Education, Island Tree Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982), the removal of a book from a school library, after it has been included by professional educators exercising professional judgment, if done with the intent to suppress the ideas expressed in the removed book, violates the First Amendment. However, the court held that Pico was not binding because there was no single majority opinion. The plaintiffs appealed to the United States Court of Appeals for the First Circuit.

EPIC's Interest

This case implicates serious electronic liberty issues concerning the extension of First Amendment protection to cyber-libraries. Physical libraries have long enjoyed First Amendment protection, and in Pico, the Supreme Court held that the First Amendment prohibited a state board of education from restricting the availability of books in its libraries based solely on the content of the books.

Similarly, in this case, it is essential that cyber-libraries be afforded the same First Amendment rights as physical libraries. The government should therefore not be permitted to censor materials in cyber-libraries by removing materials based on their content.

EPIC has a long history of advocating for freedom of speech on the Internet. More than ten years ago, EPIC participated as co-plaintiff and co-counsel in the lawsuit invalidating the Communications Decency Act, and then served as co-plaintiff in the lawsuit invalidating its successor, the Child Online Protection Act.

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