When the censor comes

A guide for teachers, librarians, booksellers and others who disseminate the printed word.

Researched and written by Sandra Bernstein
for the Freedom of Expression Committee
Book and Periodical Council

© 1996, Book and Periodical Council,
35 Spadina Road
Toronto, Ontario Canada M5R 2S9

Telephone: (416) 975-9366
Fax: (416) 975-1839

To receive a free printed copy of the print version of this document, send your request with a self-addressed 6x9" envelope, stamped with 90 cents postage, to the address above. Or save the postage and print it out.

Table of Contents

  1. Forward by June Callwood
  2. Introduction
  3. Heading them off at the pass
  4. When the censor comes
  5. Appendices

Forward

The Book and Periodical Council is proud to present this guide for librarians, teachers, booksellers and others who face righteous-minded censors, usually without warning or time to prepare. In addition to the helpful advice contained in this small volume, it is useful to remember that the freedom of speech which most needs protection is the speech with which you do not agree and may even abhor. In comparison with that challenge, defending the freedom of speech in a literary classic is a snap. --June Callwood

Introduction

These are not easy times for those who are in the business of disseminating ideas, such as booksellers, librarians, publishers, school boards, exhibitors, artists, teachers and writers. Far too many people, lacking the will or ability to dispute ideas they don't like, seek the easier route of banning ideas and vilifying those who articulate them.

The victims of these tactics are not just institutions, businesses and authors, but the reading public. Without freedom to read, democracy itself is at risk.

This document is designed as a self-defence tool, primarily for those working in print (although much of the advice will be applicable to other media). It outlines some ways to protect yourself from censorship and deal with it when it arises, and points the reader toward other resources and sources of support. It is not, of course, a substitute for competent legal counsel where needed.

The project was sponsored by the Book and Periodical Council's Freedom of Expression Committee. The BPC is an alliance of 26 national organizations representing writers, publishers, booksellers, librarians, editors, book manufacturers and marketers.

Definitions

The word "censorship" covers a broad range of events that fall into several categories:
State Censorship
Actions of the state or its agents. The government excludes, restricts or removes access to the material, or raises the age at which access is permitted. In Canada, instances of censorship have included prohibited importations by Canada Customs, obscenity charges laid against visual and performing artists, and the banning of films by provincial censor boards. Publication bans also fall into this category.
Challenges
Actions by individuals or groups. The American Library Association has identified four main types:
Public Attack
A publicly disseminated statement challenging the material's merit, presented to the media and/or others to build support for further action. (Commonly, for example, members of fundamentalist religious groups organize well-orchestrated campaigns of complaint against library books and textbooks, such as the Impressions series or the novels of Margaret Laurence.)
Written Complaint
A formal, written complaint filed with the institution (library, school board etc.), challenging the presence and/or appropriateness of specific material.
Oral Complaint
An oral challenge to the presence and/or appropriateness of the material. (Many libraries have policies that require complaints be submitted in writing.)
Expression of Concern
An inquiry with judgmental overtones.

To these may be added any theft that is motivated by a desire to make the material inaccessible to other readers.

The flip side of challenges can occur when groups or individuals apply pressure for the inclusion of materials that do not meet the established selection criteria, such as balance.

Self-censorship
Actions by individuals and institutions that, anticipating challenges or state censorship, choose not to create or make available controversial works. School boards often lean so far toward "political correctness" that children are denied an appropriate range of literature and information. Similarly, writers may avoid dealing with certain otherwise valid topics to avoid falling into the net of libel, obscenity or so-called child pornography laws.

How to spot a would-be censor

The type of person who challenges books

Heading them off at the pass

A challenge or instance of censorship often hits the victim out of left field. These days, better assume that it's only a matter of time before it happens. You don't have to be a pornographer to be censored: Maxine's Tree, a children's book with a conservationist slant, was challenged by forest workers.

Therefore, it's wise to build alliances within your organization, the community you serve and the civil-liberties community.

Selection policies.

When a challenge comes, a selection policy offers educators a way to explain the curriculum or selection to parents.

Library acquisition policies commonly include qualifications such as favourable literary reviews, best-book lists, awards and popular demand. Here are some criteria suggested in Library Collections, by Richard K. Gardner (McGraw-Hill, 1981). (An item does not have to meet all the criteria to be selected.)

For schools, the selection policy should take into account the instructional objectives and criteria.

Objection policies.

Library objections should be accepted in writing only, on a standard reconsideration form you supply. (Schools often allow a less formal initial discussion if the complainant is the parent of a pupil at the school.) Schools should offer parents who object to material an acceptable alternative for their children, without allowing them to make this decision for the children of others.

Donations policies should be consistent. The University of Manitoba policy, for example, states that "The Libraries apply the same selection criteria when they accept gifts as they do when they purchase new materials."

Policies for booksellers

Where municipal by-laws govern display of "adult" materials, booksellers are well advised to conform to them. Also, recent case law suggests that ignorance of the content can be a successful defence, though the retailer cannot be wilfully blind. Boards of directors can protect themselves by instituting a policy that the store manager should inspect materials and use his or her judgement.

The importance of training

Make sure to inform staff about these policies when they are hired, and train them accordingly. You don't want a situation where the police arrive at your counter and find a person who agrees wholeheartedly that books should be removed. Also, teachers should be completely familiar with teaching materials before introducing them to the students.


When the censor comes

As a general practice, it's a good idea to

Canada Customs Detentions and Seizures

When goods are detained or prohibited under Canada Customs Tariff 9956, Revenue Canada follow procedures outlined in a document called Memorandum D9-1-1, as revised Sept. 29, 1994. You can obtain a copy of Memorandum D9-1-1 from the Prohibited Importations Directorate, tel. (613) 954-6940, fax (613) 990-8853. Write down these numbers; you will need them.

It is possible to obtain an advance ruling on particular goods from the Prohibited Importations Directorate at (613) 954-7048.

Detentions refer to occasions when goods are detained pending a determination of whether they are admissible. When a shipment is detained, you usually get a Notice of Detention, which is the top half of Form K 27. Often the title, publisher and author are listed incorrectly. The form contains no contact person, border point or return address, so contact Prohibited Importations in Ottawa and ask them where your books are and who is in charge of the case. Note that the regional office of Customs assigns its own running control number for each K 27 issued. Anything questionable or imported for educational, scientific, medical or artistic purpose is supposed to be sent to headquarters in Ottawa for review. Often books are damaged by the inspection process.

Prohibitions. When a shipment is prohibited entry, you are supposed to receive the rest of Form K 27: Part B, the Notice of Determination, which lists the prohibited goods and the reason for prohibition. You have 90 days from the date on the K27B to appeal, but sometimes you don't receive the K 27 until that period has expired or is almost up, so be prepared to act quickly when you receive it.

Form K 27 gives you three options:

  1. You can have the goods sent back at your expense. This is quite inconvenient, because Canada Post can't handle illegal goods. You can escort the goods personally or, more likely, have a bonded courier go to the border point and pick them up under Customs supervision. The border point may be distant, and Canada Customs doesn't go out of its way to make it easy. You have to fill out Form E15.
  2. You can abandon them to Canada Customs.
  3. You can appeal the ruling, first with a Tariff and Values Administrator (TVA) at the customs office or regional office where the goods were imported. To appeal, you fill out Form B 2 (Request for Review, Redetermination or Reappraisal) and file it with a customs office within 90 days of the date of the determination shown on Form K 27B. Form B 2 asks for the "classification number," which refers to the tariff classification number for the type of goods, not the "control number" on Form K 27 (which refers to the particular shipment). If you don't know the classification number, call your nearest Canada Customs information line and ask. Instructions for filling in Form B 2 are found in an internal directive, Memorandum D11-6-1, available to importers only on request.
Don't waste your time researching arcane case law for the benefit of the TVA; there will be time for that if it ever gets to court. Just make your argument sufficiently cogent that someone higher up the ladder will take you seriously.

Naturally, Form K 27 doesn't say where you can get a B 2, but they're available from any Canada Customs office, or from the Prohibited Importations Directorate. Form B 2 doesn't leave much room for the appeal, but you can attach a longer defence as a schedule. It can be in the form of a letter or a legal argument. Oral evidence is not permitted.

Your appeal should address the reasons for classification one by one, rather than simply objecting on principle. Memorandum D9-1-1 and the Criminal Code instruct Canada Customs to consider passages in the context of the nature of the entire work. However, very often inspectors flip to one page and see something distasteful, which by law is not a reason to ban it. If you have read the entire book and are able to assess the passages in the context of character development, psychology etc., you should be able to create a strong defence. Mention if the book has been in the country for x years, if it is freely available in chain bookstores and public libraries, if reviews suggest it has artistic merit, if it is a best-seller or respected scholarly work published by a university press, or is on school or university reading lists etc. Many books are seized out of ignorance.

To appeal the TVA's decision, file another B 2 within 90 days of the TVA's decision. You can appeal that decision to the Deputy Minister of National Revenue, then to provincial court and finally to the Federal Court of Canada.

The Prohibited Importations Directorate is supposed to complete redeterminations within four weeks of the importation or two weeks of receiving the goods.

If you are attempting to import goods identical to ones previously prohibited at the deputy-minister level, you may be able to appeal directly to the court.

Of course, during this process your invoice will be payable. And the books may ultimately arrive in unsaleable condition.

Sometimes, Canada Customs tries to charge for storage; $7 per day was one example. We suggest you ignore these requests for money while the appeal is in process. After all, you at no time requested that Customs detain the goods.

Form K 27 is sent to the importer of record. That may be the ultimate consignee, or in the case of consolidated shipments it may be the shipper. In the latter case, the bookstore or other consignee may not know the shipment has been detained or prohibited, because the invoice is often inside the shipment.

Tips:

Once you have had one book stopped, expect to have lots and lots of books stopped.


Police Raids/Obscenity Charges

Perhaps a bookseller's worst nightmare is the dreaded visit from the police, the humiliation of obscenity charges, and the expense of a defence. Recently, retailers have the added fear of prosecution arising from foreign magazines that may contain material subject to a Canadian publication ban.

In many cases, booksellers or their boards of directors go into panic mode when there isn't much to worry about. This is particularly the case when, as commonly happens, police visit the shop and warn the bookseller about something on the shelf without laying any charges. Sometimes, the retailer has unwittingly displayed something that truly violates the Criminal Code, and the wisest action is to remove it. Many books, however, fall into a grey area or are very unlikely to be found obscene. The courts have to consider constitutional issues, and the Crown has to prove beyond a reasonable doubt that "harm" may flow from exposure to the material .

Quite often, the police visit is merely a routine response to a frivolous complaint from a citizen whose definition of obscene rarely corresponds with that of the courts. Don't panic, keep a stiff spine and ignore it.

You can't stop police from dropping by a store, looking around and buying stuff. It's a public place and they don't need a search warrant. Don't try to stop them or you could be charged with under Section 129 of the Criminal Code of Canada. On the other hand, if the police arrive on private premises, such as a home or office not open to the public, you do not have to let them in unless they have a warrant that specifies those premises. Nor do you have to accompany them to a police station unless you have been charged, and indeed doing so is inadvisable.

A warrant to search and seize obscene materials does not have to name specific titles of books, magazines, or other publications, although it should name the offence being investigated. In executing the warrant, police can seize anything that is evidence of the offence named in the warrant, as well as anything they find that they have "reasonable grounds" to believe is evidence of any offence. Also, as long as police officers are awfully on premises for a certain purpose, they can seize any goods which are in plain view and which they reasonably believes to be evidence of an offence. Usually they just take one or two titles, but if it is a lot, try to make a list of what they take; they have to give you a list later, but not on the spot.

Don't volunteer or concede anything, or attempt to engage the police in a discourse on civil liberties or literature. Difficult as it may be in the circumstances, keep silent. By debating the merits of the material, you save them the trouble of proving you knew the material was there and obscene - and eliminate the defence that you lacked mens rea (a guilty mind). Remember, it is the Crown's job to prove their case, not yours.

When the police seize material, they may charge a person with a criminal offence. Another possible outcome is for nobody to be charged, but a forfeiture hearing held to determine whether the material should be returned or forfeited to the state and destroyed. Mere possession of obscene material is not an offence, except child pornography or where the material constitutes the "fruits of illegal activity." Obscenity offences relate to sale, exhibition, publication, distribution and circulation.

The Crown will have to prove at trial that the material is obscene or child pornography. Remember, there is a very low test for what can be seized but a much higher one for getting a conviction. It is easier to defend a book than a magazine or anthology, because the redeeming qualities of the work as a whole are a consideration.

The police may hold seized items only if they can demonstrate to a justice of the peace that the goods are required for subsequent legal proceedings. The police can detain materials until their investigation is complete or they charge someone, but they can't hold items longer than three months unless the justice authorizes continued detention, or the Crown brings a prosecution in which the item may be required as evidence. If neither of these happens, the justice may order the materials returned to the person from whom they were seized, so long as possession by that person is lawful.


Appendices

A. Canadian Library Association Intellectual Freedom Position Statement

B. Sample Wording for Material Selection Policies

While recognizing that some materials are controversial and may offend some patrons, the Library supports the freedom of individuals to develop and interpret their own codes of conduct. In the case of controversial issues an effort is made to represent all points of view. The presence of a book, periodical or other material in the Library does not indicate an endorsement of its contents by the Library. Materials are selected on the basis of the contents as a whole, evaluation of literary merit, authenticity of material, honesty of presentation and use to the community.
Excerpted from Nepean Public Library policy as revised January 18, 1995. Reproduced by permission.
No item is automatically included or excluded from the library collection only because it contains frank or coarse language or deals with controversial topics. Selection of material cannot be influenced by any anticipated approval or disapproval of its intellectual content by sectors of the community. Responsibility for borrowing by children rests with their parents or legal guardians. No item will be excluded from the library collection only because it may come into the possession of children.
Excerpted from the Burlington Public Library Board Materials Selection Policy, 1/87. Amended 5/27/93. Reproduced by permission.
While materials should be free of stereotyping and prejudice, learning resources containing a particular bias may be provided to meet specific curriculum objectives. The selection of learning resources regarding controversial issues shall be directed toward maintaining a balanced collection representing various points of view. For example, learning resources may depict historical and contemporary forces in order to aid the understanding of social, economic and political problems. Learning resources should be selected for their strengths rather than rejected for their weaknesses.
Excerpted from the Manitoba Education and Training Instructional Resources Branch policy, 1990. Reproduced by permission.
The North York Public Library does not purchase or acquire material that has been adjudged obscene or pornographic by the courts.
Excerpted from North York Public Library Materials Selection Policy, 10/17/94

C. Sample Reconsideration Form

Statement of Concern about Library/Media Centre Materials : (Name of your organization here)

Name of library branch or school:
Your name:
Address:
City: Province: Postal Code:
Phone No.: Email address:
Name of any organization you represent:

Resource on which you are commenting:
______Book _____Audiovisual Resource
______Magazine _____Content of Library Program
______Newspaper _____Other (specify)____________

Title: ____________________________________
Author/Producer:______________Copyright Date:____

Please include an attachment if required for the following questions:

What brought this resource to your attention? (For reviews, please give publication details if possible)

Have you read/viewed the entire work? If not, what sections did you review?

To what do you object? Please be specific and give page references where applicable.

What in your opinion is the author's/producer's theme?

What resources do you suggest to provide additional information on this topic?

What action are you recommending?

Date:________________ Signature:_________________
(Add outline of what happens next according to your policy.)


D. Sample Written Objection Policy

The Burlington Public Library is a resource where many points of view and modes of expression can be examined without hindrance. Few ideas and opinions have universal acceptance or condemnation in a pluralistic society. The use of language, either descriptive or expressive, can in itself stimulate controversy. The Burlington Public Library, therefore, recognizes the right of individuals to express opposition to authors' ideas or their creative exercise of language in materials selected for the library. However, the Burlington Public Library will not engage to satisfy patrons by removing items purchased in compliance with the principles of this policy.

***

An individual who questions the selection of library materials will be referred to the Department person in charge.
Patron may fill out a "Request for Reconsideration of Library Materials" form.
The completed form will be given to the Department Head who will refer it to the librarian whose subject field is involved. This staff member will prepare a complete re-evaluation of the material in question for the Department Head. The patron will be notified of the results promptly and a copy of the written response will be forwarded to the Chief Librarian.

Burlington Public Library, June 29, 1987. Amended 5/27/93. Reproduced by permission.
Objections made by parents, teachers and other members of the community to classroom and/or school library materials are an important part of the democratic process and must be treated as legitimate avenues of communication in education....Challenges must be handled with the understanding that no parent or guardian has the right to determine reading, viewing or listening matter for students other than his/her own. While complaints about materials are being considered, access to the challenged materials or other related materials shall not be restricted.

The decision of the reconsideration committee is binding only for the individual collection, whether in the school or in the division/district library media centre.

Excerpted from the Manitoba Education and Training Instructional Resources Branch policy, 1990. Reproduced by permission.

E. Sample Bookstore Complaint Procedure

This procedure was modified slightly from one created by the Great Lakes Booksellers Association. Reproduced by permission.
In the event of a complaint about the appropriateness of stocking a particular item or of its location or merchandising, take the following steps, in order:
  1. Remain courteous, and listen to the customer's objection.
  2. Examine the facts. Perhaps a book was shelved in the wrong section, contrary to policy. In such a case, simply rectify the situation. However, if the book was shelved correctly, according to normal practice and policies, do not do, or offer to do, anything with it, including temporary removal from the shelves or shifting to another location.
  3. If the book was properly shelved, explain store policy to the customer. Do not, however, engage in an argument or allow yourself to be drawn into trying to justify the presence of specific titles in the store except in the light of the store policy. Also avoid being drawn into giving your personal judgement of the "appropriateness" of inclusion or merchandising of specific titles in the inventory. Avoid being drawn into characterizing specific titles with such highly charged and subjective terms as "pornographic," "obscene" or "blasphemous." Notify the manager of the complaint and how you handled it.
  4. If the customer is not satisfied with the explanation of store policy and wants further action or discussion, refer the matter to the manager with a statement such as "I'm sorry, but I am not authorized to take any action on such matters. You'll have to discuss that with the manager."
  5. Contact the manager. If the manager is not available, ask the customer to fill out the complaint form.
  6. The manager should attempt to elicit the information called for in the complaint form, or simply ask the customer to fill it out.
  7. After receiving a detailed complaint, the manager should:
    • notify the customer that no change will be made, if that is clearly the right course, or
    • inform the customer that the complaint will be considered and the customer informed of the decision.
  8. Consult with other management -- your board, lawyer, the CBA, BPC or other organizations -- as appropriate
  9. Decide on the proper disposition of the complaint.
  10. Make any changes. Notify the complainant of the disposition.

F. Report the Incident to the BPC

Name of school library, public library, bookstore or other institution:
____________________________________________________________________ Address:_________________________________________________________________
________________________________________________________________________
________________________________________________________________
Contact Person:_______________________
Phone: ______________ Fax: ______________ Email: ____________

Title(s) of book or magazine challenged:
____________________________________________________________________________________

Author: __________________ Publisher:__________________

When did the challenge or seizure occur?_____________
Was the incident a Canada Customs detention____ or seizure____ ? If a detention, was the material ultimately released? Y / N After how long?__________ Did you appeal? Y / N
Please attach a copy of the Form K 27.
Were you visited by police? Y / N Charged? Y / N
If challenge was from a private individual or organization, please indicate the nature of the challenge:

Origin of challenge:

Was an organization involved?

Reasons for challenge/seizure:

Did your organization have an established policy to respond to the challenge at the time it was posed? Y / N
If yes, please attach a copy.
Was the procedure followed in this instance? Y / N
Disposition of challenge:

Further comments (use separate sheet if required):

Please return to: Freedom to Read Week Case Studies, Book and Periodical Council, 35 Spadina Rd., Toronto ON M5R 2S9, or fax to (416) 975-1839.


G. Who Ya Gonna Call?

Book and Periodical Council, Freedom of Expression Committee
35 Spadina Road, Toronto, ON M5R 2S9
Telephone: (416) 975-9366, Fax: (416) 975-1839

BC Civil Liberties Association./Little Sister's Defence Fund
#425 - 815 West Hastings Street., Vancouver BC V6C 1B4

Canadian Civil Liberties Association
229 Yonge Street, Suite 403, Toronto ON M5B 1M9
Telephone: (416) 363-0321, Fax: (416) 861-1291

Canadian Library Association
200 Elgin Street, Suite 602, Ottawa ON K2P 1L5
Telephone: (613) 232-9625, Fax: (613) 563-9895

Electronic Frontier Canada
20 Richmond Avenue
Kitchener, Ontario N2G 1Y9
Telephone: (905) 525-9140 ext. 24689

Ontario Association of Art Galleries (OAAG)
489 King Street West, Suite 306, Toronto ON M5V 1K4
Telephone: (416) 598-0714, Fax: (416) 598-4128

PEN International, Canadian Centre (English-speaking)
#309-24 Ryerson Avenue, Toronto ON M5T 2P3
Telephone: (416) 703-8448, Fax: (416) 703-3870

Periodical Writers' Association of Canada
54 Wolseley Street, Second Floor, Toronto ON M5T 1A5
Tel: (416) 504-1645, Fax: (416) 703-0059

The Writers' Union of Canada, National Office
24 Ryerson Avenue, Toronto ON M5T 2P3
Telephone: (416) 703-8982, Fax: (416) 703-0826


H. Other Resources

Web Sites


Many thanks to Charles Campbell, James Dana, Richard Elliott, Nancy Fleming, David Jones, Chris Magwood and editor Dennis Mills.

This project was made possible through the contribution of speaker's fees by Christie Hefner.

ISBN 0-9692164-8-3


Restricted permission to reproduce
The Book and Periodical Council is the copyright owner of When the Censor Comes. Because of its interest in making this guide widely available, the Book and Periodical Council hereby grants permission, without formal request, for the guide -- except for Appendices A through E, inclusive -- to be reproduced in print on its own or as part of some other publication, provided that a credit line is included indicating that the sole copyright owner is the Book and Periodical Council.
The following wording is suggested:
When the Censor Comes is protected by copyright and is reproduced with the permission of the Book and Periodical Council, which owns the copyright.

Links from other sites are welcome, but please seek permission by email before mirroring the document on the Internet.


Document date: December 29, 1996