Amicus Curiae Brief — Wayfield v. Town of Tisbury

MOTION FILE

JUN

‘

,

In The

Supreme Court of the Hnited States

October Cerm 1993

DAVID WAYFIELD,

Petitioner,

Vv.

TOWN OF TISBURY, MARJORIE CONVERY,

Respondents.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The First Circuit

Motion For Permission to File Brief

Amicus Curiae in Support of Petitioner

and

Amicus Curiae Brief

Of The Polish Historical Society

Mark LANE

Counsel of Record

105 Second Street, N.E.

Washington, DC 20002

(202) 547-6700

Attorney for Amicus Curiae

June 1994

No. 93-1713

In The

Supreme Court of the United States

October Term 1593

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DAVID WAYFIELD,

Petitioner,

v.

TOWN OF TISBURY, MARJORIE CONVERY,

Respondents.

On Petition for Writ Of Certiorari To The

United States Court Of Appeals

For The First Circuit

Motion For Permission To File Brief

Amicus Curiae in Support of Petitieaer

The Polish Historical Society (PHS) respectfully moves this

Court for permission to file the accompanying Amicus

Curiae brief in support of Petitioner. Consent was granted

by the Petitioner for filing of a brief by the PHS and was

filed with this Court’s Clerk. Leave from this Court is

requested under Rule 37 of this Court.

PHS is an educational organization committed to the

promotion of free access to restricted archival

materials pertaining to the history of the First and

Second World Wars. The membership of the PHS

includes scholars, individuals, U.S. citizens and

lawful residents joined by a common interest in

history.

The interest of Amicus is set forth below. The

accompanying brief addresses issues of fact

concerning the public at large, the Petitioner and

Respondents. It describes both overt and

surreptitious censorship, each of which constitute an

abridgment of civil rights, not only by Respondents,

the Vineyard Haven Public Library, but also by other

public libraries as representatives of state and

municipal authorities nationwide.

Amicus believes that its brief will supplement

rather than reiterate the arguments made by the

parties. Due to the national implications of the

issues submitted by the Petitioner, PHS respectfully

moves this Court for permission to file the Amicus

Curiae Brief submitted herewith. Respondents

oppose the filing of this brief.

Respectfully submitted,

Mark Lane

105 Second Street, N.E.

Washington, D.C. 20002

(202) 547-6700

Attorney for Amicus Curiae

No. 93-1713

SSeeseseeeteezeecee=

In The

Supreme Court of the United States

June, 1994

@ctober Term 1992

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DAVID WAYFIELD.

Petitioner,

v.

TOWN OF TISBURY, MARJORIE CONVERY,

Respondents.

On Petition for A Writ Of Certiorari To The

United States Court Of Appeals

For The First Circuit

Amicus Curiae Brief

Of The Polish Historical Society

in Support of the Petitioner

Mark Lane

(Counsel of Record)

105 Second Street, N.E.

Washington, D.C. 20002

(202) 5547-6700

Attorney for Amicus Curiae

TABLE OF CONTENTS

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IV. Argument: |

1. Public Libraries Ostensibly Observe

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2. How Public Libraries Fight Outside Censorship.................. 5

3. Public Libraries Vulnerable to Outside Censorship

Despite American Library Association Codes.................. 6

4. Forms of Intralibrary Censorship Practiced

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- Exclusionary acquisition policy................ccccseeseseeeeees 8

- Covert intralibrary cemsorship.................cccccseceeeeeeeees 9

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5. Lack of African-American Revisionist Materials

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6. Lack of Holocaust Revisionist Materials

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7. A Minnesota Library System Is an Exception to the Rule

Regarding Nationwide Intralibrary Censorship................... 18

8. "Books Won’t Stay Banned.

Ideas Won’t Go to Jail. :

In the Long Run of History, the Censor ;

and the Inquisitor Have Always Lost.” ............-....0eecceeeeeeeees 18

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.

I, INTEREST OF AMICUS CURIAE:

The Polish Historical Society [PHS] was established in 1988 as an

educational organization committed to the promotion of free access to

restricted archival materials ining to the history of the First and

in archives with restricted access.

The membership of the PHS includes scholars, individuals, citizens

and lawfu! residents of the United States, joined by common interests

in the history of both World Wars, including the history of the Jews

who prior to 1939 constituted about one tenth of the population of

Poland.

Amicus holds itself to be an expert at evaluating the completeness

and balance of library collections on the subject of both World Wars.

Struck by a profound imbalance on this matter at many major

libraries, and then at the Respondent Vineyard Haven Public Library

[VHPL], the PHS decided to file the instant brief

Amicus is committed in principle and practice to the freedoms

afforded and protected by the First Amendment and recognizes that

scholarly progress cannot proceed, without free inquiry. Amicus

supports affirmative enforcement of the American Library

Association's Library Bill of Rights which states that:

“Libraries should provide materials and information presenting all

points of view on current and historical issues. Materials should not

be proscribed or removed because of partisan or doctrinal

disapproval."

In the Middle Ages, science and humanities were static and stifled

by restriction of speech and thought. This era is consequently now

remembered with disapprobation. The Renaissance occurred after

freedom of speech and inquiry was won following centuries of effort

and through the tenacity of a few.

Freedom of speech and inquiry includes historical revisionism.

Revisionism must be an integral part of the historical analysis of both

World Wars, because major participants also fought with words. The

historical record must be set straight on some fictitious wartime

propaganda, especially Soviet press reports, which were then accepted

as factual in the West.

Calls for suppression of debate and of historical revisionism appear

as a return to the principles of the Dark Ages which, among othcr

2

unscientific impositions, claimed that an observable straight horizon is

undebatable proof of the flatness of the earth. Justice Louis Brandcis

provided an answer for those who are concerned about propricty of

historical revisionism:

"[t]o expose ... fallacies... the remedy... is more speech, not

enforced silence.”

The revisionist process is already ongoing. For instance, in recent

years it was finally publicized world wide that 4,500 Polish officers

had been murdered at Katyn by the Soviet NKVD in 1940. Yet,

within the past decade, a Soviet documentary shown on American

television screens was still blaming the Nazis for this massacre, with

backup from supposed local “eyewitnesses” in a wartime propaganda

film clip. This example shows that historical revisionism is a never-

ending process that on occasion must augment the educational

process. Christopher Hitchens, a well-known editor, concluded his

December 1993 essay on historical revisionism in Vanity Fair as

follows:

"The revisionist endeavor is something that every generation

must embark upon, whether it's the Holocaust or any other

subject.”

By analyzing until recently unavailable physical documentation in

regard to the Nazi concentration camps (data from wartime aerial

photography, post -war archeological explorations, forensic toxicology

se senerd $e Zskien nd dheael eaieeiak, tol eaebl ehags of

the fabrication of soap), it was realized that many of the World War

II Holocaust claims, especially Soviet, were exaggerated, as has been

acknowledged by Jewish scholars. Furthermore, in the process of its

studies, Amicus uncovered a similarity between the patterns of

martyrology of the First and the Second World Wars, which provides

a new insight into this matter.

Amicus’ convictions about the World War II Holocaust have been

articulated in a document entitled "Holocaust Is Undeniable But It

Should Be Debated,” reprinted almost in its entirety on January |,

1994 by the editors of The New York Times under the headline:

"Don't Cut Off All Debate About the Holocaust."

Amicus opposes most of the arguments offered by those who have

been described as “Holocaust deniers." However, Amicus agrees with

some scholarly tenets of some Holocaust revisionists, which are also

accepted by widely recognized Jewish historians.

Il. PURPOSE OF AMICUS BRIEF:

The gravamen of the Petitioner's complaint is the discriminatory

treatment he received from Respondents, the Tisbury Senior Center

and the local Vineyard Haven Public Library [VHPL], both public

community forums.

Because the rules of this Court require brevity, Wayfield's Petition

asserts, but docs not document in depth, an intense censorship,

practiced by the Respondent VHPL in contravention of its own

regulations. Neither did the Petitioner discuss a similar censorship

practiced by library authorities whose guidance the VHPL follows,

such as CLAMS [Cape Library Automative Material Sharing], a

regional consortium of public libraries; Library of Congress, the

national leader in the area of labeling and acquisitions; and OCLC

[Online Computer Library Center], the world leader in cataloging.

Amicus’ brief fills this gap and documents such unconstitutional

censorship.

Ill. SUMMARY OF ARGUMENT:

1. It appears that the near total absence in public libraries of World

War II and African-American historical revisionist books and

materials represents, under color of law, discrimination and

abridgment of freedom to speak and read. Examination by Amicus of

holdings and practices of various libraries revealed that such an

abridgment of First Amendment rights is encountered not only at the

Respondent Martha's Vineyard library but is practiced nationwide.

Amicus believes that the intense, intralibrary censorship practiced

by these libraries is self-imposed. It evolved over decades as a result

of insufficient governmental funding and/or overdependence of public

libraries upon private contributors. Thus, public libraries were

induced to follow politically fashionable trends, and consequently they

discriminate against and suppress unpopular views.

2. Amicus argues that the singular, 1990 victory of the press

(Chicago Sun-Times) and public opinion, in overcoming initially

successful censorship by private organizations impressed upon a

public imstitution (the Chicago Public Library regarding a

comprehensive bibliography of the Palestinian-Israeli conflict

prepared by an employee of this library), should not be considered as

a sufficient safeguard of First Amendment rights elsewhere.

Therefore, affirmative involvement of this Court is needed in the

instant case and other such cases.

IV. ARGUMENT:

1. PUBLIC LIBRARIES OSTENSIBLY

OBSERVE THE FIRST AMENDMENT:

In order to avoid abridgment of the First Amendment, virtually all

public libraries in the United States subscribe to the American Library

Association's [ALA] Library Bill of Rights which stipulates that:

"2. Libraries should provide materials and information presenting

all points of view on current and historical issues. Materials should

not be proscribed or removed because of partisan or doctrinal

disapproval.”

Acquisitions are usually at the forefront of controversies in

libraries. Most small libraries do not have a formal, written selection

policy for acquisitions, although this is recommended by the ALA.

More than likely, their overburdened staff does not have time to

prepare such in a written format, and this suffices as long as none of

the small number of library users object to this deficiency.

Nevertheless, virtually all public libraries accept and practice the

precepts set forth in the Materials Selection Policy Summary of the

Santa Monica Public Library, which calls for diversity and for

satisfying the needs of various groups within the community:

"1. The basic test for selection of any item is whether it is of

permanent, current, or potential value to the community. Other

criteria include the quality, cost, format, published reviews, public

demand, and availability of the material.

2. Materials are selected to satisfy the prevalent needs and

interests of the majority of the community as well as diverse groups

within the community.

3. The Library attempts to present differing viewpoints on

contemporary issues, some of which are controversial. Selected

materials, therefore, may be meaningful and significant to some

individuals, while offensive, shocking, or boring to others.

Materials are selected for their overall contribution to collection."

Predicated on limits of budget, shelf space, and degree of

community interest, every library is compelled to select and reject

printed and audio-visual materials. Libraries also must avoid

redundancy on popular topics and establish .s balanced presentation of

opposing views. Such selection and rejection is necessary and

constitutional and does not abridge the spirit of the First Amendment

as long as the selection is not discriminatory.

Most libraries do indeed apply the above freedom to read and speak

guidelines as long as the censorial pressure comes in the area of topics

Pe ee

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5

debated by the mainstream news media. However, intense and

nationwide departures are found in the form of internal censorship in

the area of politically unfashionable or unpopular topics, especially if

such controversy might affect library funding. Such internal

censorship in this area is found nationwide: in small libraries such as

the Respondent VHPL, in medium and major libraries in towns and

cities, in regional and statewide library systems, and even in the two

largest American libraries, the Library of Congress and the New York

Public Library.

2. HOW PUBLIC LIBRARIES FIGHT

OUTSIDE CENSORSHIP:

The egalitarian policy of libraries is buttressed against any of the

outside-of-the-library pressures for favoritism and accusations of

censorship. The safeguarding organizations were established by and

are located at the Chicago headquarters of the American Library

Association [ALA], the oldest and largest in the world organization of

56,000 librarians:

1. The Intellectual Freedom Committee [IFC] was established in

1940 as an advisory unit constantly reviewing and updating the

policies which protect, enforce, and address the rights of the First

Amendment.

2. The Office of Intellectual Freedom [OIF] was established in 1967

as a watchdog against censorship directed at libraries. Through its

monthly “Newsletter on Intellectual Freedom," it informs libraries

about outside censorial pressures and ongoing legislative battles at

various local courts. One of its permanent columns is devoted to

reporting on the decisions of this Court. The last page of this

newsletter, entitled "Intellectual Freedom Bibliography," provides the

libraries with a digest of American daily press and periodicals on the

subject. In addition, the OIF prepared and periodically updates the

Intellectual Freedom Manual, available at nearly every public library.

3. The Freedom to Read Foundation [FRF] was established in 1969,

essentially to provide legal aid for librarians and libraries accused by

the public and/or government of liberalism in acquisition policies.

FRF has previously filed with this Court various amici briefs

opposing outside restrictions on acquisition policies of libraries.

ALA, FRF, OIF and IFC are the authors and sponsors of

remarkable documents. The ALA's Library Bill of Rights, the Magna

Carta for librarians and readers everywhere, protects freedom of

speech and diversity of library collections. The FRF's Freedom to

SS a

6

Read Statement stipulates the responsibilities of librarians and ‘ays

the ground rules for would-be censors:

"It is the responsibility of publishers and librarians, as guardians

of the people's freedom to read, to contest encroachments upon that

freedom by individuals or groups seeking to impose their own

standards or tastes upon the community at large.”

Thus, during the past decades, armed with the abovc tools, librarics

skillfully and forcefully resisted outside censorial pressures in order to

protect themselves from potential litigation based on First Amendment

contravention, especially when it involved communism, abortion

rights, homosexuality, lesbianism and/or pornography. As

demonstrated on the following pages, however, libraries fail to do so

when subjects are politically unpopular and might, on balance, impact

adversely upon their funding. During the October 1988 Term (No

88-605), the ALA and FRF informed this Court about this

shortcoming:

"function fof] libraries is crucial to the flourishing jof]

‘marketplace of ideas’ celebrated in this Court's fundamental First

Amendment jurisprudence. But despite the tradition of

‘freewheeling inquiry’ in America's libraries, ... libraries occupy a

perilous niche in our society: most of our libraries are publicly

founded institutions subject to state control not only through the

police power but also through the power of the purse.” (ALA's

Amicus brief, p. 4)

In summary, libraries have developed effective rules, skills and the

Library Bill of Rights to defend the freedom to know, read and speak,

provided this does not affect their fiscal base. However, libraries lack

any built-in safeguards, other than actions of this Court, against their

self-imposed internal censorship based on funding pressures.

3. PUBLIC LIBRARIES VULNERABLE

TO OUTSIDE CENSORSHIP DSPITE

AMERICAN LIBRARY ASSOCIATION CODES:

Libraries’ quest for balance of collections and freedom to read and

speak usually hinges on the "power of the purse” which often exacts

adherence to “political correctness." However, one library, when

supported by the mainstream press, won a victory over influential

outside censors even though imitially it had to cave in to their

eee oe Paiva Reber, reien aieireae Ay Ce a!

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bibliography on the Palestinian-Israeli conflict. It included 147

books, containing a balanced mix of pro-Isracli and pro-Palestinian

views. According to an expose entitled "The Jewish Thought Police”

by Robert Friedman in the July 27, 1993 issue of the New York City

based weekly The Village Voice:

"[this] bibliography was widely praised by academics, and was

used as a teaching aid by the prestigious Center for Middle East

Studies at the University of Chicago. [But then] [ijn August

1989 Chicago's Chief Librarian Samuel F. Morrison received a

call from a prominent Jewish patron, complaining about the

‘biased’ bibliography .”

After six months of censorial pressure, according to The Village

Voice:

“the library capitulated, agreeing in writing to include more than

30 titles selected by the league in a revised bibliography which

would be compiled by someone [else]}".

Two weeks later, Chicago Sun Times columnist Dennis Byrne

revealed attempts of outside censors to influence the Chicago Public

Library and thus its readers. After a flurry of letters to the editor and

negative press coverage, the censors backed away from their high

pressure lobbying campaign, and the bibliography was updated and

reprinted for the public in 1990, without outside and/or intralibrary

interference.

First Amendment rights remain vulnerable not only for libraries, but

also for other institutions. For instance, according to the June 2, 1992

issue of The Washington Post, curators of the Smithsonian Institution

exhibit entitled "The West as America: Reinterpreting Images of thc

Frontier, 1820-1920" replaced ten of the fifty-five revisionist exibition

texts, when pressured that Congress might reduce funding. Thus,

resistance in Chicago to outside censorship is not a sufficient

safeguard of the First Amendment rights elsewhere in the United

States.

4. FORMS OF INTRALIBRARY CENSORSHIP

PRACTICED BY PUBLIC LIBRARIES:

Libraries and librarians rarely practice overt censorship as in the

case of the Palestinian/Israeli bibliography prepared for the Chicago

Public Library in 1990. More often they utilize methods of

surreptitious internal censorship and selection policies. All variants of

censorship described below were encountered in connection with the

subject of this brief.

x _—<=----

8

Exclusionary acquisition policy:

The most common form of censorship practiced by public libraries

is an exclusionary acquisition policy. Printed and audiovisual

materials which are disapproved are simply not purchased. To avoid

ielaen neil ‘als. libraries foll adie

1. When a reader requests the acquisition of a book on an unfavored

topic, a librarian invariably accepts the request form, but the library

usually does not act upon it. Procrastination commonly vitiates the

reader's interest

2. if a reader pursues his request, the library’s response is usually

among the following:

- The item has not been reviewed by any leading review journal

such as the independent Library Journal, or the Booklist

sponsored by the American Library Association [ALA].

(Librarians a priori consider reviews in revisionist journals as not

authoritative for this purpose.)

- The item is published by a small and unrecognized publisher,

rather than by a well-known publishing house.

- The library's acquisition board will make purchasing decisions.

- The library lacks sufficient funds for the purchase.

- There is a lack of community interest in the subject. When

replying thus about Holocaust revisionism, however, many

librarians do not consider or are unaware that:

— the editor of Martyrdom and Survival, the flagship

publication of Holocaust survivors in America and of the Yad

Vashem Memorial in Jerusalem, wrote in the December 1993

issue that we live in “the era of Revisionism";

— at least four anti-revisionist books, highly publicized and

acquired by most libraries, have been published in the last

two years;

- about 60% of about 408 articles about the Jewish

Holocaust, published in the past three years in five leading

newspapers in the United States, refer to Holocaust

— 9-22% of adult Americans have doubts about the extent of

the Jewish Holocaust according to recent public opinion polls.

3. Libraries exclude controversial material by not accepting it as a

gift (as happened in the case of the Respondent library). When

rarely accepted, controversial donations:

- have been prematurely weeded out to make room for new

acquisitions;

RTS ES

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9

- have been prematurely weeded out because of worn condition and

not replaced;

- soon after the donation have disappeared from bookshelves and

have not been replaced;

- have been sequestered in a "research roum" or labeled as for

"reference only,” and thus have been accessible only on the library

premises.

Covert intralibrary censorship:

For the purpose of this brief, the intralibrary covert censorship

practiced by librarians is subdivided into four types: 1. exclusionary

labeling, 2. prejudicial labeling, 3. "silent" censorship, and 4

"referral" densorship.

1. Exclusionary labeling of unfavored books in cataloging is

prevalent. This effectively stymies the reader and prevents access to

potential sources.

Censorship by exclusionary labeling is evidenced by the lack of

subject headings such as: “African-American revisionism”,

"Holocaust revisionism" or the holocausts of Amerindians,

Armenians, Ukrainians, Gypsies, Cambodians and others, each

referring to mass deaths and atrocities against these peoples.

As initiator of subject headings, the Library of Congress is primarily

responsible for subject heading deficiencies. The majority of other

libraries, public and private, follow its practices. Cataloging centers

and local libraries have the option of adjusting and augmenting their

subject headings as needed, but rarely exercise it.

2. Prejudicial labeling in library catalogs deters prospective readers.

It is thoroughly condemned by the ALA in its July 1, 198],

"Statement on Labeling", "[a}n interpretation of the Library Bill of

Rights":

"Labeling is the practice of describing or designing certain library

materials by affixing a prejudicial label to them or segregating them

by a prejudicial system. The American Library Association opposes

this as a means of predisposing people's attitudes towards library

materials for the following reasons:

1. Labeling is an attempt to prejudice attitudes and as such, is a

censor's tool.

2. Some find it easy and even proper, according to their ethics,

to establish criteria for judging publications as objectionable.

Library Association opposes the establishment of such criteria.

10

3. Libraries do not advocate the ideas found in their

collections. The presence of books and other resources in a

library does not indicate encouragement of their contents by

the library.

The American Library Association opposes efforts which aim at

closing any path to knowledge.”

Pejorative labeling is illustrated by the subject heading “Holocaust,

Jewish (1939-1945), errors, inventions, etc.” The fact that revisionist

books are placed into this category undoubtedly contributes to the

reluctance of American libraries to acquire them. Conversely, dozens

of titles of non-revisionist books that contain factual errors, widely

recognized by scholars, about the Jewish Holocaust were not placed

The Library of Congress is ultimately responsible for faulty labeling

of a book. Its Cataloging Directorate, employing about 200

librarians, assigns subject headings for books acquired or submitted

prior to printing by publishers. This government-performed labeling is

rarely if ever changed by public libraries, and if it is maccurate, may

agi forever.

"Silent" censorship of cataloging is of exclusionary nature.

neadeis ie aanek te tae om. it misleads readers,

including students and professors, who after completion of a

substantial catalog search are left with the impression that books on

"Prism" is the world's largest cataloging service, compiled during the

last two decades by the Online Computer Library Center [OCLC]. It

provides rapid access to about 2,000,000,000 volumes in about

15,000 libraries in the United States and 3,000 in foreign countries.

In May 1994, "Prism" was readily available to the students and

faculty at the St. John's University Library in Jamaica, New York.

Under the subject heading “Holocaust revisionism", "Prism" listed

only two titles. One is a non-revisionist book (probably through a

computer error) and the other is a Holocaust revisionist booklet by an

unidentified author, published in 1986 in Canada and reposited in a

library in Kansas. Hidden under the subheading "Holocaust, Jewish,

errors, inventions, etc.”, "Prism" listed 52 titles (about 100 copies) of

Holocaust revisionist books, constituting labeling too cryptic to be

appropriate primary subject heading of “Holocaust revisionism"

and/or assigns them to the pejorative subject subheading “Holocaust,

1]

Jewish (1939-1945), errors, inventions, etc.” The result is

exclusionary censorship. Such censorship has a significantly

misleading impact on the knowledge of society in general, because the

"Prism" catalog is most frequently used by academic libraries and

research services of the news media.

4. "Referral" censorship is also found to be practiced nationwide.

Libraries refuse to acquire controversial books but suggest that they

can be borrowed through an interlibrary loan. Generally, this process

takes two to six weeks of waiting for a book if it is not in circulation.

However, it is difficult to see how such requests might be satisfied

for some topics. Books cannot be effectively borrowed if there are too

few or none to be borrowed. For example, "First Search” lists the

album of wartime aerial photos of Nazi concentration camps entitled

Air Photo Evidence... by John Ball, published in Canada in 1992

(infra: page 15), in only one library in the United States, and nowhere

else in the world, according to OCLC's catalog database. Not a singlc

library in California has the revisionist book about the Kristalnacht

entitled Flashpoint... by Ingrid Weckert, published in California in

1991 (infra: page 14).

In summary, Amicus believes that over the decades, libraries

reluctantly developed a panoply of covert censorial techniques, which

they successfully use to avoid controversies and to preserve the flow

of private and governmental funds to their libraries. To amend a

resultant abridgment of First Amendment principles in the instant case

and in other such cases, an affirmative ruling is needed from this

Court.

5. LACK OF AFRICAN-AMERICAN REVISIONIST

MATERIALS IN PUBLIC LIBRARIES:

An authority on the subject of African-American studies, albeit

surrounded by controversy, is City College of New York Professor

Leonard Jeffries. Within the past year, he was reinstated as the

Chairman of the department from which he had been dismissed after

20 years of service. The dismissal followed his public speech four

years ago in Albany, New York in which he expressed unpopular

views stemming from his research on the ethnic background of slave

traders in England and America. Jeffries won a highly publicized

March 1994 trial in New York City. In addition to reinstatement, he

was awarded $400,000 in damages due to improper dismissal.

Amicus obtained from Professor Jeffries a list of the seven foremost

books on the subject of African-American historical revisionism.

12

These books, rightly or wrongly, claim overrepresentation of persons

of the Jewish faith in the slave trade and describe flourishing

civilizations in pre-colonial Africa. Their titles are as follows:

1. Stolen Legacy by George G. James, pub. in 1954.

2. Africa: Mother... by Yosef Ben-Jochannan, pub. in 1988.

3. Message to the Blackman... by Elijah Muhammed.

4. Iceman Inheritance... by Michael Bradley, pub. in 1991.

5. African Origin... by Cheikh A. Diop, pub. in 1974.

6. Stolen Legacy... by George G. J. Richardson, pub. in 1988.

7. Civilization or Barbarism... by Cheikh A. Diop, pub. in 1991.

Oak Bluffs and Vineyard Haven are little towns on Martha's

Vineyard in Massachusetts. Oak Bluffs has a small, year-round

community of African-American intellectuals dating back almost 150

years. In summer, it swells with vacationing African-Americans who

account for 30% of the summertime Oak Bluffs population.

According to projections of the U.S. Population Census, Oak Bluffs

in 1990 consisted of 2,517 white and 193 (or 7.7%) black year-round

residents. In 1990, Vineyard Haven consisted of 3,120 year-round

inhabitants of which 85 (or 2.9%) were African-American. Because

of the three-mile proximity of Vineyard Haven and Oak Bluffs, both

are served by the Respondent VHPL.

A search through CLAMS, a computerized catalog of 23 libraries in

Martha's Vineyard and the Cape Cod region, which include the

Respondent VHPL, revealed that none of the above mentioned

African-American revisionist books dealing primarily with the history

of American slavery were available at these libraries and none at the

Respondent VHPL.

Next, a search through CLAMS for the book entitled Uncle Tom's

Cabin revealed two copies in the entire Cape Cod/Martha's Vineyard

system. Seven libraries in the CLAMS system contain at least thirty-

four copies of Anne Frank, the Diary of a Young Girl, with the

Respondent VHPL containing two copies of this book.

Darien is an old Connecticut coastal town, one of the wealthiest in

the United States. According to the projections of the 1990 US.

Census, the population of Darien in 1993 consisted of about 18,000

inhabitants, 96.5% Caucasians and 0.5% Blacks. Until about two

decades ago, Darien was a homogenous community of White Anglo-

Saxon Protestants, who were legally and successfully resisting the

influx of first Catholics, and then Blacks, Jews, and immigrants.

Today, there is a small number of Jewish Americans in Darien and

- 7 - Ag r ‘ s

13

According to Connecticut State Library records, the Darien Library

“is the busiest public library in Connecticut on a per capita basis.” A

catalog search through the Connecticut-wide "reQuest", a

computerized database encompassing 157 libraries, revealed that the

Library of Congress never created a subject heading on African- 1

The Darien Library contains two copies of Uncle Tom's Cabin.

There are twenty-four copies of the Anne Frank diary in the library,

due to the needs of schoolchildren according to the library's

laslalatentidn

The reference librarians at the New York Public Library, the second

largest in the nation, were able to instantly provide Amicus the

transcript of Professor Jeffries’ “offending” speech delivered in 1990.

However, in his home city, they were unable to find, in any of the

library catalogs available to them (their own or the worldwide

OCLC), any of the above-listed African-American revisionist books

submitted by Professor Jeffries. This example provides illustration of

mstitutionsliced ox ion and "silent" hip.

In summary, Amicus believes that:

- The absence of African-American revisionist books at the

Respondent library is discriminatory and contradicts the library's

written policy claiming adherence to and encouragement of diversity

of subjects and viewpoints.

- The paucity of African-American revisionist books in 157

Connecticut libraries contradicts the libraries’ own written policy

regarding diversity of subjects and viewpoints, prescribed in the

Intellectual Freedom Handbook published by the Connecticut Library

Association. Thus it may represent, under color of law,

discrimination, censorship and/or abridgment of freedom to speak and

read.

- The failure of the Library of Congress, the national leader in

labeling, to create a subject heading on African-American revisionism

effectively blacked out this subject nationwide and deprived citizens

of their right to read and know divergent views, in contravention of

the First Amendment.

14

6. LACK OF HOLOCAUST REVISIONIST

MATERIALS IN PUBLIC LIBRARIES:

Examination by Amicus of Vineyard Haven Public Library:

In April, 1994, the Respondent Library (VHPL), with a total of

about 50,000 volumes in its stacks, was visited by an Amicus

representative. The purpose of the visit was to examine its holdings

primarily for the presence or absence of any Holocaust revisionist

materials. This visit confirmed that the Petitioner's multiple requests

over a number of years, that the VPHL purchase such matcrials or

accept them as donations, had proved unsuccessful.

At first, a reference librarian was requested to help. She appeared

eager and very familiar with the term "Holocaust." The library

catalog's subject heading "Holocaust, Jewish” revealed the presence of

23 books. She seemed vaguely familiar with the term "revisionism",

but her enthusiasm faltered into disappointment and exasperation

when she realized that "revisionism" was absent from among 133

subheadings on the Holocaust. She exhausted all possibilities of her

library's own computerized catalog and those of the CLAMS, a

computerized database system which encompasses 23 regional

libraries. She suggested that on some other day, the Boston Public

Library might be of help in finding such books. Neither she nor two

other librarians on duty knew that for Holocaust revisionist materials

they should search the holdings of other CLAMS libraries under the

subject subheading “Holocaust, Jewish (1939-1945), errors,

inventions, etc."

Then, the Amicus representative personally checked the VHPL

catalog and shelves as well as the CLAMS database without any

librarian's assistance. It was found that VHPL uses the Library of

Congress subject headings and the Dewey Decimal cataloging system.

In these systems of classification, "Holocaust, Jewish (1939-1945)" is

subdivided into 314 subheadings. Neither a subheading “Holocaust,

Jewish (1939-1945), revisionism” nor the subject heading

“Revisionism” exist.

Next, the VHPL catalogs were checked for the presence or absence

of three foremost Holocaust revisionist titles and books:

- The Hoax of the Twentieth Century by Arthur R. Butz.

Noontide Press, 1976, a re-evaluation of the “Final Solution” by

a tenured Northwestern University professor,

- Flashpoint: Kristalinacht 1938, Instigators, Victims and

Beneficiaries by Ingrid Weckert, Noontide Press, 1991, authored

by a German librarian fluent in English and Hebrew,

Te SG ee ee ee ee ae a alti x

15

- Air Photo Evidence, Auschwitz, Treblinka... by John C. Ball,

Ball Resource Services, 1992; an album of high resolution

wartime aerial photographs of Nazi concentration camps and the

site of the Katyn massacre.

At this point, an average Martha's Vineyard reader would have

dropped his or her search for revisionism or Holocaust revisionism,

considering this to be a marginal fad, not worthy of attention because

of lack of documentation.

Examination by Amicus of Holocaust Revisionist Holdings in

Libraries of Medium-Sized Cities:

The next phase of examining the availability of revisionist materials

was accomplished in Stamford, Connecticut, a medium-sized city in

the New York metropolitan area. Its Ferguson Library contains about

500,000 volumes on its shelves, uses the Library of Congress subject

heading classification along with "reQuest", a statewide computerized

catalog encompassing 157 libraries, and "InfoTrack," an index to

1,100 American periodicals and five major newspapers.

At different times, two reference librarians at the Ferguson Library

were asked in early 1994 for help in locating any Holocaust

revisionist materials. These librarians checked the library's

computerized catalog through subject heading and word searches.

which yielded no results. They then said that they could proceed no

further unless the requester knew the name of some revisionist book.

At this point, an average reader would likely have abandoned the

search. However, Amicus discovered that under the subject heading

"Holocaust, Jewish (1939-1945), errors, inventions, etc.", the

"reQuest" computerized catalog lists 12 books, of which 6 are

revisionist and 6 are anti-revisionist.

Examination by Amicus of Holocaust Revisionist Holdings in

Large City Libraries:

Cincinnati, Ohio is a large industrial city with large universities.

The Cincinnati Public Library contains about 5,000,000 volumes. It

is conjoined with other libraries in the state within OhioLINK, a

computerized catalog network. University libraries in Ohio are

conjoined within UCLID, an academic computerized catalog network

listing scholarly books and materials. Both of these computerized

catalog systems use the Library of Congress subject headings.

16

In early 1994, a word search through UCLID of "Holocaust" yielded

747 book titles. At the University of Cincinnati, two reference

librarians, familiar with the term “Holocaust revisionism,” werc

unable to locate the subheading “Holocaust, Jewish (1939-1945),

revisionism" and were perplexed by its absence among the 314

detailed subheadings on the Holocaust. After careful scrutiny of the

available subheadings, one of the librarians selected “Holocaust,

Jewish (1939-1945), errors, inventions, etc.” It yielded the titles of

two anti-revisionist books published in 1992 and one in 1993, but no

According to the UCLID catalog, not a single author or book title

pertaining to Holocaust revisionism is available at academic libraries

in the State of Ohio. At this point, an average Ohio graduate student

would likely have discontinued his or her search for revisionism.

The modern and well-equipped Cincinnati Public Library provides

uniquely unrestricted and self-help access for its users to the

gargantuan database of the costly, OCLC-based, computerized

reference service called "First Search", encompassing about 15,000

American and 3,000 foreign libraries.

In 1994, at the Cincinnati Public Library the OCLC database search

yielded 8,881 titles on the subject "Holocaust, Jewish (1939-1945).

The subject search "Revisionism" yielded 139 titles, mostly related to

Leon Trotsky's revisionism of Bolshevism and revisionism in a field

of engineering, frequently in foreign languages.

Spurred by her earlier imterest in anti-revisionism, a reference

librarian at the Cincinnati Public Library conducted an indirect search

and came upon the subject heading "Holocaust, Jewish (1939-1945),

errors, inventions, etc." This heading yielded 149 titles in the OCLC

catalog. The Amicus representative was able to identify 52 of these as

representing Holocaust revisionist books, many of which weg in

French, German, Spanish, Swedish and Italian. Among them were

two of the three (supra: pages 14 and 15) foremost Holocaust

revisionist books in the English language:

1. The OCLC’s "First Search” catalog lists the Arthur R. Butz book,

The Hoax of the Twentieth Century (of which about 30,000 copies in

six printings have been sold), in five libraries, all in the United States:

Library of Congress, Columbus Metropolitan Library in Ohio, St.

John's University in Minnesota, Concocheague District Library in

Pennsylvania, Manitowoc Public Library in Minnesota.

2. The OCLC's "First Search” catalog lists John C. Ball's album, Air

4

17

Photo Evidence, Auschwitz, Treblinka... ina single library:

Allen County Public Library, Fort Wayne, Indiana.

The abovementioned revisionist book was purchased by this library

in March 1994. By June 1994 it had circulated five times, which is

on a par with bestsellers, even though this book has never been

reviewed or even mentioned in any mainstream publication. On the

other hand, non-revisionist Holocaust books, likewise not reviewed in

the mainstream press but acquired by libraries, frequently do not

circulate, or are read once or twice over the years.

3. The availability of Ingrid Weckert's Flashpoint was examined

through the OCLC's catalog service "Prism" (supra: page 10),

available at the St. John's University Library in Jamaica, New York.

"Prism" lists Flashpoint... in nine libraries, all in the United States:

Fairfield University Library in Connecticut, Fordham University

Library in New York, Purdue University Library in Indiana.

Flashpoint... is a scholarly book with an alternative view on the

background of the Kristalnacht. According to the "Prism" catalog,

three years after its publication, Flashpoint... has not been acquired

by the Library of Congress, the largest in the world library holding

over 101 millions of volumes, nor the New York Public Library, the

largest in the world “non-statutory" library holding 18 million

volumes.

From the above analysis, one has to conclude that the unofficial, but

de facto, restriction on the acquiring and labeling of Holocaust

revisionist materials is nearly complete and results from:

“the shadow of fear cast by these [censorial] pressures [which]

lead, we suspect, to even larger voluntary curtailment of expression

by those who seek to avoid controversy”

as predicted in the 1981 Freedom to Read Statement of the American

Library Association and the Freedom to Read Foundation.

In summary, Amicus believes that:

- Despite repetitious requests by the Petitioner over the last ten years

for any Holocaust revisionist book to be purchased or accepted as a

donation, not a single such volume had been acquired by the

Respondent library as of April 1994, through its practice of

18

- The nationwide and intense censorial acquisition practices against

Holocaust revisionism exercised for decades by small, medium, and

large American libraries are conducted against the libraries’ own

rules, and are augmented by censorial cataloging practices introduced

by the Library of Congress.

7. A MINNESOTA LIBRARY SYSTEM IS AN EXCEPTION TO THE

RULE REGARDING NATIONWIDE INTRALIBRARY CENSORSHIP:

The prevailing, nationwide intralibrary censorship and blackout of

African-American and Holocaust revisionism at public libraries is not

total. For instance, the Hennepin County Library System, consisting

of twenty-five library branches in Minnesota, expanded the list of

Holocaust subject headings as follows:

Armenian genocide; Gay Holocaust; Holocaust, Jewish (1933-1945).

Holocaust Revisionism, Holocaust, Soviet; Native Americans’

Holocaust; Polish Holocaust; and Romany Holocaust.

The first Holocaust revisionist book, entitled Le Mensonge d'Ulyse,

was written in ]950 by Paul Rassiner, a French geographer and

survivor of Nazi concentration camps including Buchenwald. Since

then, about 100 additional Holocaust revisionist books have been

printed, with the 1992 Air Photo Evidence ... album of the Allied

wartime aerial photography of the Nazi concentration camps (supra:

\page 15) being the most recent and most evidentiary.

In contrast to the Hennepin County Library System containing only

219,000 book titles, the vast Library of Congress has yet to establish

a Holocaust revisionism category, even though there has long existed

a group of books to which this label is directly applicable, so as to

lead a prospective reader thereto directly and via the most commonly

used terminology.

On the other hand, the Library of Congress established 215

subdivisions for most of the 314 Holocaust sub-headings, e.g.

"Personal narratives" (of Holocaust survivors) which permit access to

480 book titles. Some of these subdivisions encompass only onc

book, e.g. referring to a small Polish village, Wlodawka.

Amicus believes that only an affirmative order of this Court in the

instant case will ameliorate such intralibrary censorship practiced at

the Respondent library and other public libraries in the United States.

8. "BOOKS WON'T STAY BANNED. IDEAS WON'T GO TO JAIL.

IN THE LONG RUN OF HISTORY, THE CENSOR

AND THE INQUISITOR HAVE ALWAYS LOST.”

The renowned Polish astronomer Nicholas Copernicus is a good

example of how correct scientific ideas based on observations of

19

physical facts (instead of eyewitness testimony that the earth is flat)

were initially ostracized and labeled as “lunatic” (actually solarian).

Copemicus, not protected by the First Amendment, could have his

(then outlandish) discovery published only posthumously (in 1543).

For almost two centuries, the heliocentric theory was magisterially

proscribed per curiam and his books were banned. Vanguard and

prescient scholars perished at the stake (Giordano Bruno in 1600), or

were forced to recant (Galileo Galilei in 1633).

Despite persecutions and erroneous adjudication of science by the

highest contemporary courts, the “lunatic fringe” theory of earth

revolving around sun, with passage of time, become accepted as fact.

Copernicus’ theory of “earth revolutions around the sun" soon gave

origin to the naming of historical events, first of the English (1688),

and later American and French Revolutions.

Today, the intellectual importance of historical revisionism is

politically decried and underrated. Its leaders have been assassinated

(revisionist publisher Francois Duprai in France in 1976), bludgeoned

(Professor Robert Faurisson in France in 1989), and banned, arrested

and jailed (British historian David Irving, from Australia in 1993, in

Canada in 1992, and in England in 1994). Faced with the well

publicized, recent devaluation of exaggerated World War II Holocaust

claims, one must consider that in the future, some aspects of historical

revisionism might follow the fate not of lunacy but of heliocentricity.

The history of jurisprudence (and especially of the great Galilean

trial) teaches that it is best for the courts not to adjudicate the leading

edge of science.

Conversely, the recent history of science reveals that legislation

favoring one side in a political or historic debate does not withstand

the test of free scholarly inquiry. Such happened in the case of the

racist theories of Nazism (Friedrich Nietzsche), the enviro-genetic

theories of Communism (Trofim Lysenko), and the Soviet-provided

4,000,000 victim count of the Auschwitz concentration camp,

officially reduced to about 1,500,000 in 1990, and to less than

800,000 in 1993. Nevertheless, in May of 1994, the German

Bundesrat (Senate) passed a bill cutting off all debate on the World

War Il Holocaust.

"Books won't stay banned. Ideas won't go to jail. In the long run of

history, the censor and the inquisitor have always lost," wrote Yale

University President A. Whitney Griswold in 1952. But forty years

later, at this renowned institution, ideas of historical revisionism are

——————~—_—Eeeee»w—es

\

_

20

still quashed and at its famous Sterling Library, revisionists’ books

are still banned. It seems that over the centuries some academicians

have insufficiently learned from the history of science and

In December of 1993, editors of the Brandeis University campus

newspaper supported the concept of free speech by printing a

preposterous advertisement of a populist Holocaust denier

proclaiming that:

"[t}he U.S. Holocaust Memorial Museum displays no proof

anywhere of homicidal ‘gassing’ chambers and no proof that

even one individual was *gassed’...”

The newspaper was likely inspired by the words of Justice Louis

Brandeis who in 1927 wrote:

"If there be time to expose through discussion the falsehood and

fallacies, to avert the evil by process of education, the remedy to

be applied is more speech, not enforced silence."

Accurate knowledge of history is essential for the future well-being

of all. George Santayana wrote that those who disregard the past are

bound to repeat it.

Vv. CONCLUSION:

Public libraries have their own rules and codes but are also subject

to outside pressures through their dependence on state and local

funding as well as private organizational and individual

contributions. Amicus found that library contents in at least two

forms of unpopular historical revisionism are absent at the

Respondent library which was accused of such censorship in the

instant case, and absent and/or markedly underrepresented at most

public libraries. Because libraries have not developed significant

safeguards against intralibrary censorship, and for all of the

foregoing reasons and for the reasons set forth in Petitioner's brief,

Amicus respectfully requests this Court to grant the writ of certiorari

submitted by the Petitioner.

Respectfully submitted,

Mark Lane,

Counsel of Record

105 Second Street, N.E.

Washington, D.C. 20002

June, 1994

VI. CERTIFICATE OF SERVICE

I hereby certify that on this___ day of June, 1994, I |

caused to be served by first class mail, postage prepaid, a |

copy of Motion for Permission to File Amicus Curiae Brief |

and Amicus Brief of the Polish Historical Society upon: |

Jacqueline H. Haley |

Counsel of Record for the Respondent |

Roche, Carens & DeGiacomo

One Post Office Square

Boston, MA 02109

(617) 451-9300

David Wayfield

Petitioner, pro se

176 A Main Street

P.O. Box 699

Vineyard Haven, MA 02568

(508) 693-4609

All parties required to be served have been served.

Mark Lane

Counsel for Amicus Curiae

105 Second Street, N.E.

Washington, DC 20002

(202) 547-6700