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By Morris A. Singer
In an appearance today on NPR’s “On Point,” Harvard Professor Jonathan Zittrain and others took on the proposed banning of encryption-enabled Blackberry mobile devices in some middle eastern countries.
Zittrain
In recent weeks, Saudi Arabia, United Arab Emirates, India, and other nations have asked Blackberry manufacturer Research In Motion Ltd. for a way to gain access to encrypted communications sent using Blackberry mobile devices. Without access, these nations would ban the devices. The governments claim the need for access in the interest of national security.
It is unlikely that access to the encrypted communications sent using Blackberry devices will further national security interests because criminals will find alternative methods for secure communication.
Zittrain argued that by banning Blackberry because of its encryption capability, or by requiring RIM to open a government-accessible back door to encrypted communications, government opponents of the Blackberry are not making their nations more secure.
“It will turn out that the people most interested in secrecy, the real bad guys, may end up with unbreakable encryption anyway, because they’re using . . . obscure tools, and the rest of us remain exposed,” said Zittrain.
This is a familiar argument, particularly in response to other kinds of security measures (e.g., gun control). By making illegal a particular technology that can serve as an instrumentality of crime, government takes the technology out of the hands of law-abiders who use it for legitimate purposes. Proscription does not affect those whose attraction to crime militates against the deterring effect of illegality.
There are, of course, many considerations that separate gun control from Blackberry control; but those considerations likely make the argument easier to accept in the latter case. For example, one might argue that making guns illegal actually limits the total supply of guns, even those available on the black market. That is, gun control might have an effect even on those who are irreverent to the rule of law.
It cannot be said that preventing encrypted communication on the Blackberry will have that same effect. The Internet provides an open platform for communication, and on it people can communicate using whatever technology they like. This includes powerful, free, encryption tools such as PGP. PGP is widely regarded as one of the most secure encryption systems in the world. It is also legal.
Most importantly, PGP does not require the support of a large corporate entity, such as RIM; and no amount of corporate concession to authoritarian regimes will prevent an individual from using it to communicate.
Therefore, should RIM provide a government-accessible back-door to unencrypt communications sent using Blackberry mobile devices, the privacy of law-abiders who continue to use Blackberry would suffer. Criminals, intent on communicating in private, would move to other technologies, continuing to avoid the eyes of the law.
Morris is a Suffolk University Law School alumnus and publisher of the blog, LawAndContent.com.
Photo courtesy Jonathan Zittrain, licensed under CC BY 3.0.
By Morris A. Singer
Over the past month, it has become popular for just about everyone to criticize Facebook for recent changes to its privacy policy and a series of new tools it released that allow content providers to use its user data on their own websites.
In April, Facebook took its well-known “like” feature across the entire Internet, allowing content providers from the most obscure blogs to news giants like CNN to correlate Facebook activity with the activities of their own readers.
Sample Facebook Social Plugin, The Fan Box Courtesy Ars Technica
It is understandable why many have reacted with fear. The system, which enrolled all Facebook users as a default, is responsible for the now-ubiquitous displays of Facebook fandom on sites all over the Internet. You have probably seen something similar to the example on the right.
Boxes like these are a product Facebook provides third-party content providers to help them accumulate fans. They are dressed in the look-and-feel of Facebook, and in some instances, present a chart showing which of your Facebook friends like particular content. What the fan product and a host of other related new products do, is bring information about Facebook users into the public web.
The Electronic Frontier Foundation has described it by saying: “The new connections features benefit Facebook and its business partners, with little benefit to you.”
On the other hand, the value to content providers is that the connection between proprietary content and Facebook’s social network allow for a variety of avenues for a richer user experience.
Martin Nisenholtz, the senior vice president for digital operations at the New York Times, put it this way: “When [Facebook CEO Mark] Zuckerberg says that ‘web experiences want to be social,’ he’s not just referring to social sites. He’s talking about the need for engagement across the web, including on publishing sites . … [I]t raises the question of whether Facebook’s incredible engagement metrics can now be applied to sites that, today, have implemented only a thin layer of interactivity into their products.” For the full speech, see PaidContent.org.
These viewpoints expose an increasing divide over privacy and utility in the information age. That is, the more useful an information product the more it impedes on one’s sense of privacy. This is especially so in the realm of social networking, where the information produced, correlated, or modified, is most often personally identifying information.
It is easy for the privacy advocates to forget about the utility of Facebook’s new products for everyone. Also easy is for the businesses that stand to gain from their use to forget that they are dealing with — and publicizing — sensitive details of their users’ identities.
To go a step further, as Facebook seeks to exploit the personally identifying information they have spent years gathering, the benefits of its products come at a price. And, conversely, efforts to enforce privacy rights do limit the ability of Facebook to provide useful information products. This article seeks to use Facebook as a case study to demonstrate this thesis. It will outline how privacy and utility are antithetical in the context of social networking products. It will also look at critiques of Facebook’s privacy practices from private parties, public interest groups, and governmental actors in the United States, Canada, and the European Union. Finally, it will examine Facebook’s new information products — the Social Plugins and the Open Graph — as well as the privacy policy amendments that were necessary to facilitate them.
The Antithesis
It seems a great portion of the entire world is upset with Facebook right now. Nevertheless, it is impossible to discount the facts that both a great portion of the world uses Facebook, and the businesses that clearly stand to gain from the lowering of privacy protections do so because they can use diminished privacy to better engage Facebook users.
If the products Facebook provides were not useful to the consumers who use Facebook’s services, the number of Facebook users would drop in proportion to the violative nature of a Facebook privacy protection rollback. Still, one must wonder why Facebook feels the need to roll-back its privacy protections through opt-out changes, rather than opt-in changes, and why Facebook feels the need to deceptively describe its privacy changes to trick users into accepting them.
It is clear to this author that the Social Plugins and the Open Graph are useful products for both content providers and Facebook users. Furthermore, it is understandable why privacy policies may require modification to comport with products Facebook never imagined writing when it implemented those policies.
Should Facebook be lying to consumers and tricking them into accepting attenuation of their privacy protections, however, it would also be clear that the social network no longer feels the utility of its products to Facebook users is apparent. Worse still, it is possible that Facebook believes that the drop in privacy protection outweighs the utility of its products to consumers, but not to the content providers who comprise a potentially significant revenue stream for the company. If that is the case, Facebook has become a pay service, and the currency is a user’s privacy.
By Morris A. Singer
Starting next week, the United States District Court for the District of Massachusetts will consider whether to modify its local court rule prohibiting electronic recording and webcasting of civil proceedings. This would be a step toward a more democratic federal judiciary. Additionally, the modification would empower judges of the District Court to make decisions that should be left to their discretion.
It is sometimes said that evolution of the law keeps pace with the speed of geological transformation. That was certainly a sentiment felt by many a year ago this month, when the United States Court of Appeals for the First Circuit overturned (.pdf) Judge Nancy Gertner’s decision (.pdf) to allow webcasting of civil proceedings in the Joel Tenenbaum copyright infringement case.
That First Circuit decision was a frustration for just about everyone but the plaintiffs, who stood to gain from silencing publicity of their controversial and unpopular copyright infringement litigation practice. Even the First Circuit justices who heard the argument sympathized with the pro-webcasting arguments, but confined their reasoning and decision to an application of the District Court local rule, which prohibits the practice.
This Friday marks the closing of the period for public comment to the District Court regarding a proposed modification to Local Rule 83.3, which prohibits webcasting. Only time will tell what arguments will be put forth in public comment, but this author expects the most compelling arguments to center on democratic values and judicial discretion. After a brief background of the issue, the following will examine each of these arguments.
History of Prohibited Electronic Recording in District of Massachusetts
The courts are often averse to electronic recordings of court proceedings. The rule currently prohibiting electronic recording in the District of Massachusetts is Local Rule 83.3.
The Rule provides that electronic recording can only take place if the rule specifically allows a recording, or if the court orders the recording at its discretion.
That last part — the court’s discretion — would seem to allow a judge in the District of Massachusetts to order a recording at his discretion. The First Circuit disagreed a year ago, however, holding instead that the court has discretion only in specific situations set forth later in the rule, at 83.3(c). Those circumstances are:
- The use of electronic or photographic means for the preservation of evidence or the perpetuation of a record, and
- The broadcasting,televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings.
Other than for these reasons, the District of Massachusetts does not have discretion to order electronic recording of court proceedings. For a summary of the arguments for and against this interpretation, see my blog post at Joel Fights Back.
Policy Guidance
The Judicial Conference of the United States, the policy-making body of the federal courts, has stated that electronic recording of court proceedings are usually allowed only in five very limited circumstances:
- The presentation of evidence,
- The perpetuation of the record of the proceedings,
- Security purposes,
- Other purposes of judicial administration, and
- The photographing, recording or broadcasting of appellate arguments.
The policy of the Judicial Conference of the United States is not binding on the District of Massachusetts, meaning the courts in the District can set other policies. However, the District treats the policies as persuasive.
Additionally, the First Circuit Judicial Council had experimented with video recordings of civil proceedings within the First Circuit through a pilot program. The program was cancelled, and video recordings were again prohibited.
Here are 10 reasons why webcasting promotes a more democratic judiciary:
- Webcasting helps the public to know what is going on in the courts. The Internet is highly effective at distributing content to a wide audience. When the Internet distributes gavel-to-gavel coverage of court proceedings, more people know what is happening in the courts. See Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 920 (1950).
- Webcasting is an acknowledgment that what transpires in the court room is public property. Because court proceedings are public property, the public should be able to have access to them. Webcasting facilitates this access. See Craig v. Harney, 331 U.S. 367, 374 (1947).
- Webcasting is in accordance with the First Amendment, which provides the right of access to court proceedings. The First Amendment provides a right of access to court proceedings, in the absence of competing privacy concerns. Webcasting facilitates access. See Richmond Newspapers v. Virginia, 448 U.S. 555 (1980).
- Webcasting provides publicity, the most powerful check on misconduct. When people see what is happening in the courts, those in power are on their best behavior. See id. at 569.
- Webcasting court proceedings affords citizens a form of legal education. When more people have access to court proceedings, they can observe the goings on of the court, and can learn how the legal system works. See id. at 569-73.
- Webcasting promotes confidence in the administration of justice and fosters respect for the legal system. We can learn to trust our judiciary by seeing it in action. See id.
- Webcasting enhances the performance of all involved. When people know their conduct is exposed to the public, they may just do a better job and be on their best behavior. See id.
- Webcasting protects judges and litigants from false allegations of dishonesty. When people can see the proceedings of court, it is harder to make out a case of dishonesty in the court because the public record will not substantiate it. See id.
- Webcasting provides an outlet for community hostility and emotion. Public proceedings provide a form of communal vindication for having experienced a wrong. See id.
- Webcasting permits observance of court proceedings in the most convenient manner possible. While it may be difficult for a person to travel to the court to observe a proceeding, especially during work hours, the ability to watch a proceeding at home at any time over the Internet makes observation more convenient. See id.
By Denise Ouellet
Earlier this month, RealNetworks settled a two-year lawsuit with the Motion Picture Association of America (MPAA), the organization responsible for getting movies onto DVDs and encrypting them so consumers cannot make copies of them as they can with CDs. About a year and a half ago, RealNetworks released RealDVD, a software application that attempted to legitimize the copying of DVDs and make it legal. However, a California court found last summer that RealDVD violated the Digital Millennium Copyright Act (DMCA) by accessing the movie through the encryption (commonly known as CSS or Content Scrambling System). Real was in the process of appealing. The question of whether consumers have a legislatively-protected right to make fair use copies of movies for their own personal use was never addressed because the DMCA (which Hollywood lobbied heavily in favor of) makes it illegal to access copyrighted works that are protected by technological locks. You can’t make fair use of a work that you can’t get to, therefore, as the DMCA stands, we won’t be able to move DVDs that we fairly purchased off the hard disc any time soon. Considering the success of the iPod, a device centered on music mobility, the inability to move digital content in the future could be a gaping oversight in our digital future. For more on this, see two previous posts on Suffolk Media Law, one written during the litigation and the other written after the August 2009 decision against Real.
In other DMCA news, the Electronic Frontier Foundation (EFF), an organization dedicated to the preservation of consumers’ digital rights, continues to wait on the U.S. Copyright Office regarding its request that it make an exception to the DMCA that would allow third parties to create applications for the iPhone. As it stands now, all applications must go through and be approved by Apple. Within the provisions of the DMCA are provisions that allow for periodic exemptions (every three years) to be made for developments in technology. However, since technology moves so rapidly, the three-year allowance for requested exemptions is severely inadequate to maintain adequate legislation in this day in age. As this Wired article points out, the EFF is still waiting on a ruling and in less than three weeks, Apple’s iPad will hit the shelves, bringing the same problem to light with another technology.
Fred Von Lohmann, of the EFF and author of the request to the U.S. Copyright to make an exception to the DMCA for iPhone applications, has also recently released a report entitled “Unintended Consequences, 12 Years Under the DMCA.” This is the 6th report he has done since the DMCA was enacted in 1998. The report compiles a multitude of examples of the DMCA stifling innovation and competition and preventing fair use rather than working (as it was intended) to prevent piracy. The report is eye-opening and certainly worth the read. It baffles me that this Act stands as it does and has yet to reach a Constitutional challenge. Hopefully as Lohmann and others continue to bring attention to the issue, the DMCA will get its day in the Supreme Court and those, such as Rob Glaser (who resigned as CEO of RealNetworks in the wake of the RealDVD settlement), will be redeemed.
By Denise Ouellet
Forget surveillance video and eye witness accounts. More and more, Facebook, YouTube and other social media tools are providing evidence to nab the bad guys.
While it might seem like a separate world when you post your every photo and constantly update your status online, it can have some very real consequences. One attorney in Tennessee that handles divorce cases, immediately has his clients shut down all Facebook or other social media accounts. Apparently, Facebook is the leading social media tool from which divorce attorneys are extracting evidence. For criminals, posting your every move could be a fast track to jail time.
Certainly criminals are not the brightest folks out there. It’s no surprise that gang members and/or criminals like to brag about their lifestyles on MySpace and Facebook, often posting photos to show off their weapons and such. Some of these photos are extremely useful to the police and assistant district attorneys trying to piece together hierarchies of gangs or understand local street violence. While working at the Suffolk County District Attorney’s office after my first year of law school, I was particularly impressed with how astute the office was at tracking and monitoring these types of sources. Since social media essentially opens up a whole new world of electronic evidence, it’s a lot more work that gets dumped into the laps of prosecutors and law enforcement. With budget cuts and layoffs across the country, I think we should be proud to know that many officers and prosecutors do go above and beyond to use these tools to get the key pieces of evidence or track the suspects that lead to arrests.
There has been a lot of media coverage lately proving that these efforts, a sort of law enforcement 2.0, have been working. Below is a list of those articles and references to particular success stories from across the country.
USA Today
Cops Using YouTube to Find Criminals
This article identifies the following instances where social media has helped solve a crime.
- Police in Suffolk, Va., were able to identify suspects involved in a Dec. 14 street fight when cellphone videos were posted on YouTube.
- Police in Chattanooga, Tenn., discovered an online forum where residents were planning illegal drag races, staked out the area and ticketed participants.
- Police in Los Angeles used YouTube and Flickr to identify people suspected of being involved in riots following the June 2009 NBA Championship.
- In November, police in Minneapolis and St. Paul, arrested four people for assault after seeing videos they had posted of themselves.
- A Minneapolis man accused in a shooting was recently arrested after telling a friend about the crime in a Facebook message.
- In December, Massachusetts authorities caught a child-rape suspect after learning about his whereabouts on Facebook.
ABA Journal
DWI Defendant Goes to Jail After Posting ‘Drunk in Florida’ Facebook Photo
ABA Journal
Police Use Social Networking to Target Underage Drinkers
- Police in LaCrosse, WI have ticketed about 19 underage drinkers after seeing incriminating photos on Facebook.
Swampscott Reporter (MA)
Anonymous Text Messaging ‘Tip Line’ Now Available in Swampscott
- Police have established a tip line for citizens to report information they think might help solve a crime.
KGW.com (OR)
Social Networking Web Sites Help Solve Crimes
- In January, police in Albany, OR used Craigslist to find and arrest a local thief who was putting up stolen goods on the site.
- In Corvalis, OR, police used Facebook photos to help arrest a man who stands accused of raping a woman at a party last year.
The Kansas CW
Salina Police Use YouTube and Facebook to Help Solve Crimes
- Police in Salina have started a YouTube page to post surveillance videos to the vast online audience hoping someone will recognize a local burglar.
First Coast News (ME)
Maine Police Use Facebook, MySpace to Solve Crimes
- Police in Auburn, ME, had a Facebook page up for less than three weeks before it helped solve a vandalism case and led to three arrests in February 2009.
Gizmodo
Police Use Google Street View to Solve Kidnapping Crime
- Police in MA were looking for a nine-year kidnapping victim and after tracing cell phone coordinates, found that the girl might be in Virginia with her grandmother, the alleged kidnapper. Police used Google street view to identify potential hideouts and found the child with her grandmother in a nearby hotel.
By Denise Ouellet
Tired of watching “The North Face” logo transform from a brand of apparel into a status symbol in the halls of his school, Jimmy Winkelmann created his own brand of clothes mocking the outdoor clothing line called “The South Butt.” Winkelmann’s company uses a logo very similar to that of The North Face but mocks its “Never stop exploring” attitude with an alternative message, “Never stop relaxing.”
As funny as some are finding it, The North Face is anything but amused. They filed suit in mid-December alleging a variety of federal and state trademark violations including infringement, dilution by blurring, dilution by tarnishment, and false designation of origin.
Typically I don’t follow a lot of trademark cases but reading about this case frustrated me. The general consensus is that people know the difference between a “face” and a “butt” and that The North Face is ridiculous for bothering to sue this kid. However, no one has bothered to consider the alternative. Sometimes, yes, it’s nice to be able to point fingers at the “corporate man” for sticking it to the little man but I don’t think that’s fair in this case.
If you’re in The North Face’s position, you HAVE to sue this kid. In trademark law, you don’t get to pick and choose when you decide to protect your mark. You have to constantly police it and prevent others from using or diluting it to maintain strong protection. I think the misunderstandings looming in the articles I’ve been reading stem from the popular misconception that trademark law protects the look and design of a mark. While it is true that trademark law protects “marks” per se, it doesn’t protect what you see. This would fall into copyright law. Trademark law protects something you don’t see. It protects the association consumers have with what they see and the source of that good or service. Remember that power for trademark law is derived from the Commerce Clause of the Constitution and thus requires some basis in interstate commerce to regulate. Protecting the consumer’s association with a good or service is how trademarks are regulated by the Commerce Clause. Trademark protection allows consumers to know that when they see a certain mark, they know it’s a certain brand and therefore they can reasonably expect the same product or service as they have had before.
If you’re a company that owns trademarks and you don’t police your mark, or watch that others are not using it, you can effectively abandon your mark and lose all protection. Therefore, as prudent counsel for the corporation, effectively patrolling use of your trademarks is essential. So if you’re The North Face, you have to protect your mark against this type of alleged infringement or you risk losing all protection the next time an infringer comes along.
By Denise Ouellet
The Federal Trade Commission announced on Monday that it will now require bloggers to disclose when they are receiving any type of compensation in exchange for endorsing or reviewing a product, service or company. However, these regulations fail to consider the plethora of social blogs and forms of social media that may be subject to the guidelines and create a double-standard in the media industry in general.
The new guidelines are meant to cover not just traditional blogs but also other types of social media like Twitter “tweets” and Facebook pages. That means that if a celebrity receives money from a company for mentioning or including ads from a company on his or her page, it will be subject to the guidelines.
While these disclosure requirements are intended to help Internet users discern what is real and what is just another form of paid advertising, they may do a lot more than that.
As others have already pointed out, there isn’t a lot of room to make a full disclosure in a 140-character-limited tweet, but more importantly, where is the line between a blog and just good old-fashioned communication? If you try to think back to when and why blogs came about, it wasn’t just because the Internet allowed the everyday common man to reach hundreds of thousands of readers with his thoughts on life, there was also an audience for blogs. If there hadn’t been, we would not have seen the rapid proliferation of blogs online and watched them morph into micro-blogs and other forms of social networking. The fact that there was an audience means two things. First, it means that people were ripe to communicate, connect and share with one another in new ways. Second, it means that people were ready to receive their news and information in less traditional forms of media.
The fact that people were ready to share and communicate does not necessarily mean that all the “sharing” is consumer-related, as the FTC would apparently have you think. In fact, the bulk of it probably is not. A huge chunk of communication that will fall under these guidelines are simple conversations and interactions between friends, colleagues and families. Just because it falls under the umbrella term of blogging does not give the FTC the right to regulate. Remember that the FTC gets its power from the Commerce Clause of the Constitution and is therefore (somewhat) obligated to remain within the realms of regulating interstate commerce. Our personal free speech amongst one another does not fall into this category, no matter how broadly it is interpreted.
Additionally, the line between what is just simple communication and what is an “endorsement” is very fuzzy in these guidelines. In the words of the FTC:
“The revised Guides […] add new examples to illustrate the long standing principle that ‘material connections’ (sometimes payments or free products) between advertisers and endorsers — connections that consumers would not expect — must be disclosed.”
Let’s say a celebrity is paid by sponsor (“A”) and because of that relationship is contractually obligated to attend another company’s (“B”) event. At that event, the celebrity interacts with a new product or service, likes it, tweets about it then blogs about it on his site. Does the celebrity have a “material connection” with B? It’s not clear and arguments could easily be made to support either conclusion. While I appreciate that the FTC is trying to ensure the reliability of blogs and other social networking tools, it does not have the authority to guide our free speech and should work to ensure its guidelines minimally infringe on this right.
This brings me to my second point. Are our other source of information all that reliable? If people were ready to receive their information from less traditional forms of media, like blogs, isn’t that an indication of a fairly savvy consumer market? If so, then shouldn’t the FTC acknowledge that and either back off of the blog-related guidelines and realize that MANY other forms of communication and endorsement are not “guided” in this way. For instance, similar to my example above, if a celebrity is paid to attend a party for a magazine or brand, is that disclosed to consumers? No. Also, having worked in public relations for many years, I’m familiar with how a lot of magazine and newspaper publications work. Often times, products are chosen for review or included in articles because their companies cough up money to advertise in these or sister publications. Even in Boston alone, it’s no surprise that the bars/restaurants/hotels that top ranking lists are all the same that advertise regularly. If the FTC’s goal is to make authors disclose “connections that consumers would not expect,” shouldn’t all of these be disclosed as well? Maybe not. Maybe consumers are savvy enough to figure this all out, so if they are, can’t we let the blogs carry on and hope that they’ll call each other out on any endorsements that are actually deceiving customers?
To read the full text of the new guides go to: http://ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf.
[It should also be noted that these guides are NOT laws and in order to impose a fine for violating a guideline, the FTC still bears the burden of proving a violation of the FTC Act.]
By Kristin Billera
September 26 to October 3 is the American Library Association’s Banned Books Week. Book
banning is, unfortunately, still a very real problem in the US today, despite the decision in the pivotal Supreme Court case Board of Education, Island Trees Union School District v. Pico.
In Pico, the Board of Education of the Island Trees School District in Levittown, New York, rejected the recommendations of a committee of appointed parents and school staff and ordered that all books which were “anti-American, anti-Christian, anti-[Semitic], and just plain filthy,” be removed from the high school and junior high libraries. Steven Pico, a high school student, brought suit against the Board on behalf of several other students, and claimed that the Board was violating their 1st Amendment rights. The Supreme Court, in a 5 to 4 vote, ruled in favor of the students. The Court held, in an opinion written by Justice Brennan, that “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’”
According to the First Amendment Center, cases subsequent to Pico usually focused on whether or not material was “vulgar.” A 1989 case in the US Court of Appeals for the 11th Circuit, Virgil v. School Board of Columbia County, Florida, upheld a Florida school board’s decision to ban a high school literature text book because it contained selections from Aristophanes’ play Lysistrata and Geoffrey Chaucer’s The Miller’s Tale. The Court writes:
“We decide today only that the Board’s removal of these works from the curriculum did not violate the Constitution. Of course, we do not endorse the Board’s decision. Like the district court, we seriously question how young persons just below the age of majority can be harmed by these masterpieces of Western literature. However, having concluded that there is no constitutional violation, our role is not to second guess the wisdom of the Board’s action.”
It’s unfortunate that school boards and parents throughout the country find issue with some of the best written and most important books in our society. Bannedbooksweek.org has published a Google map marking over 120 challenges and bans of books throughout the country, which have taken place since 2007. The site reports that this number isn’t close to the actual number of books which actually are challenged or banned each year. The “ALA recorded 513 challenges in 2008 but estimates that this reflects only 20-25% of actual incidents, as most challenges are never reported.”
I attended a private, Catholic school and my high school English teacher, Mrs. Josephine Cummings, had told us once that we were lucky to attend a private school where books weren’t challenged or banned and we were actually allowed to read books such as Catch in the Rye or The Grapes of Wrath. I absolutely agree with her and I am grateful that I did have the opportunity to read these books. It is so disappointing to me that students may often not be allowed to read some of my favorite books of all time such as The Great Gatsby and Catch-22. It is true, that many of these books do have references to sexuality or more vulgar language, but that doesn’t inherently make the entire book obscene. For example, To Kill a Mockingbird is often banned or challenged because it contains the word “nigger.” Anyone who would ban or challenge a book that is ultimately about tolerance, justice and standing up for what is right, on the basis of a racial slur (used in way that is a realistic portrayal of the 1930’s South) alone clearly has missed the entire meaning of the book. These books are considered some of the best books in American literature because they portray certain universal truths about the human condition. They do not gloss over the ugly parts of life and for this reason, they should be revered. They portray abject poverty, war, class differences, adultery, racial intolerance, violence and even the unbearable awkwardness of adolescence in such starkly honest terms, and this is the reason why these books are considered still considered classics today.
The right to speak freely is not where 1st Amendment rights end. It includes a right to freely access information because without an audience, then free speech loses its teeth. It is trite, but we must remember that the 1st Amendment is meant to protect controversial and unpopular speech. Students should not be exempt from this right and they should not be shielded from some of the greatest literature ever written simply because school administrators and parents are unreasonably worried about damaging students’ delicate psyches.
See also Books Challenged and Banned in 2008-2009.
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