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AMERICAN COUNCIL OF THE BLIND v. BOORSTIN

September 23, 1986

AMERICAN COUNCIL OF THE BLIND, et al., Plaintiffs
v.
DANIEL J. BOORSTIN, Librarian of Congress, Defendant



The opinion of the court was delivered by: HOGAN

 THOMAS F. HOGAN, Judge

 This written opinion supplements the Court's opinion issued from the bench on August 28, 1986 at the conclusion of oral argument on the parties' cross-motions for summary judgment. Upon review of the parties' memoranda, supporting exhibits and oral argument, the Court ruled for the plaintiffs, holding that the defendant violated the First Amendment when he made a view-point-based decision to discontinue the production and distribution of braille editions of Playboy magazine.

 I. Findings of Fact

 The Library of Congress through the National Library Service's Program for the Blind and Physically Handicapped reproduces books and magazines in braille and recorded editions for blind and visually impaired individuals. 2 U.S.C. § 135, et seq. The National Library Service (NLS) staff, using specific criteria and procedures, selects materials for inclusion in the braille program. To aid in the selection process, the NLS established advisory committees representing the interests of readers, network libraries and groups such as the American Council for the Blind and the Blinded Veterans Association. Pltf. Stmt. of Material Facts Exh. C. The Librarian of Congress maintains ultimate authority over all programs administered by the NLS and Library of Congress. Def. Response to Interrogatories 7, 8.

 From 1973 until 1985 the program published the textual portions of Playboy magazine in braille. Pltf. Stmt. of Material Facts Exh. H. Pictures and cartoons were not included in the program's editions due to the difficulty of reproducing them in braille. Playboy was one of the most popular magazines in the program. Pltf. Stmt. of Material Facts Exh. E.

 The controversy over Playboy's inclusion in the braille program began in March 1981 when Representative Chalmers Wiley requested defendant Boorstin, the Librarian of Congress, to discontinue producing and distributing free copies of braille editions of Playboy. Pltf. Stmt. of Material Facts Exh. E. The NLS, in response to the Congressman's request, reviewed the program's selection criteria and concluded that the Library's Program for the Blind and Physically Handicapped should continue to publish Playboy in braille. Pltf. Stmt. of Material Facts Exh. G. Prompted by Representative Wiley, a second internal review by NLS occurred in November and December, 1981 to reevaluate whether Playboy should remain available to subscribers. Noting that in 1980 Playboy "surpassed Good Housekeeping and Ladies Home Journal in circulation," and that it fell "within the criteria for selection of periodicals," the NLS again concluded that the Library could not justify removing Playboy from the program. Pltf. Stmt. of Material Facts Exh. H.

 In July 1985 Representative Wiley, having failed to persuade the Library of Congress to stop producing Playboy in braille, introduced an amendment to the House Appropriations Bill to reduce the funding for the Library of Congress' Books for the Blind and Physically Handicapped Program from $ 33,864,000 to $33,761,000. 131 Cong. Rec. H5932 (July 18, 1985). The reduction of $103,000 represents the Library's cost of reproducing Playboy in braille.

 In introducing the amendment, Representative Wiley clearly set forth his reasons for decreasing the amount of money available to the program. He stated:

 
I do not think the public should be left with the impression that the Federal Government sanctions the promotion of sex-oriented magazines such as Playboy.
 
I have asked the Library of Congress to stop using money to reproduce Playboy in braille. They have not stopped using the money for this purpose, and so I am offering this amendment today.

 The only possible disputed material fact in this action is defendant's reason for deleting Playboy from the braille program. Defendant, in a public statement, explained that while he regretted his decision, he interpreted the Wiley amendment as precluding him from continuing to produce and distribute braille editions of Playboy. Complaint Exh. A. Boorstin viewed the House floor debate (his "sense of Congress") as a signal from Congress that Playboy could no longer be included in the program because of the nature of its contents. Defendant, referring to the reduced funding as a form of censorship, stated that "the next step might be to deny funds to the Library of Congress for purchasing of books which the House deemed inappropriate, subversive, or unacceptable to the majority of the House." Complaint Exh. A.

 Although at oral argument and in later filings defendant attempted to rejustify his decision by suggesting that he removed Playboy from the program to protect the continued viability of the braille magazine program, Def. Opp. at 23, such ad hoc post rationalization does not furnish a contested issue of material fact, but rather the Court finds the plaintiffs' characterization of defendant's action as viewpoint-discrimination more accurate. Based on the oral arguments, the numerous memoranda and exhibits, including Boorstin's deposition, it is evident that the sole reason defendant eliminated Playboy from the braille program was because he ...


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