Intellectual Freedom Blog

By: Deborah Caldwell-Stone, Deputy Director of ALA’s Office for Intellectual Freedom

It is axiomatic that anyone can sue, over any issue. Filing a lawsuit is a relatively simple task: draft a complaint that purports to allege facts that support a claim for legal relief, pay a fee, and file the document with a court.

Of course, none of this means that the facts alleged in the complaint are true, or that the legal claims are valid. But given the costs of defending a lawsuit, and many organizations’ allergy to controversy, filing a legal complaint can function as an effective tool to intimidate and silence the target of the lawsuit, even if the lawsuit is baseless.

The lawsuit filed by the Thomas More Society on behalf of the group “Pornography is Not Education” appears to fall into this category of legal bullying. The lawsuit makes a raft of generalized allegations that assert that EBSCO and the Colorado Library Consortium “knowingly provide” or “knowingly broker” sexually explicit, obscene, and harmful materials to schoolchildren.

The complaint rarely identifies the materials it considers obscene, or obscene as to minors. But fairly evaluating the few materials materials against the legal standards established by the Supreme Court for obscene and obscene-as-to-minors materials fails to support any reasonable conclusion that the complained-of content meets the legal standard for obscenity for adults or minors.

More importantly, the complaint makes no charges or claims for relief under the identified obscenity statutes. That is because the plaintiffs cannot make any such claims. The law does not permit private citizens to enforce criminal laws; only a public prosecutor, armed with actual evidence of criminal activity, can charge a person or organization with a violation of obscenity law. The plaintiffs’ ability to claim a violation of obscenity law is further complicated by the fact that Colorado has no valid law on the books barring distribution of “harmful to minors” or “obscene as to minors” materials; the Colorado Supreme Court overturned the statute in 1985, finding that it violated the First Amendment.

Thus, the actual claims for relief rely on civil, or non-criminal, allegations. The plaintiffs allege, in a conclusory fashion, that EBSCO and the Colorado Library consortium engaged in “unfair and deceptive trade practices” in describing EBSCO’s K-12 databases as age-appropriate and that the defendants engaged in a “civil conspiracy” to violate obscenity laws when making the EBSCO research database available to Colorado schools.  But the complaint states these claims primarily as legal conclusions, and contains few specific facts in support of these claims, as required by Colorado law.

The plaintiffs then assert that these alleged activities have injured “parents’ rights not to have their children subjected to sexually explicit, obscene, or harmful to minors’ materials,” “children’s rights not to be subjected to materials that are sexually explicit or obscene-as-to-minors materials” and have caused the plaintiffs to expend “time, effort and funds” to “combat plaintiffs’ deceptive trade practices.” But none of these claimed “injuries” are recognized rights or legally protected interests that the law protects, or that the Colorado Consumer Protection Law was designed to remedy.

Rather than ask for specific damages or compensation to remedy their alleged injuries, the plaintiffs request broad relief unrelated to their claims – a demand for a series of injunctions ordering EBSCO and the Colorado Library Consortium to stop providing “school databases that are sexually explicit or obscene-as-to-minors” or to require each defendant to stop telling the public that the databases are age appropriate, even though the identified materials are neither legally obscene or even, in most cases, age-inappropriate.  Thus the goal of the lawsuit is revealed: The lawsuit is not intended to redress an actual legal “injury in fact,” but to persuade a court of law to issue an order requiring EBSCO to purge its databases of any content the plaintiffs deem objectionable.

These materials are not a legal opinion nor should they be regarded as legal advice. Readers should consult their own legal counsel for legal advice regarding their particular situation.

Deborah Caldwell-Stone is Deputy Director of the American Library Association’s Office for Intellectual Freedom and the Freedom to Read Foundation. She is a recovering attorney and former appellate litigator who now works closely with librarians, library trustees and educators on a wide range of intellectual freedom and privacy issues, including book challenges, Internet filtering, meeting room policies, government surveillance, and the impact of new technologies on library patrons’ privacy and confidentiality. She has served on the faculty of the ALA-sponsored Lawyers for Libraries and Law for Librarians workshops and speaks frequently to librarians and library organizations around the country about intellectual freedom and privacy in libraries.