Public and Scholars Have First Amendment Right to Original Writings of "Unabomber" Ted Kaczynski


For Immediate Release: October 20, 2004

SAN FRANCISCO - The ACLU of Northern California filed an amici curiae brief on behalf of librarians and archivists urging the Ninth Circuit Court of Appeals to reverse a lower court's decision allowing the government to preclude public access to the original writings of Ted Kaczynski. Kaczynski, who pled guilty to the "Unabomber" crimes, plans to donate his journals to the University of Michigan. The University, which has agreed to receive them, houses a special collection of materials on radical social and political movements, known as the Joseph Labadie Collection.

The Freedom to Read Foundation, founded by the American Library Association, and the Society of American Archivists, appearing as friends of the court, contend "that the original documents should be preserved and made accessible to scholars, researchers, and the general public, and that the First Amendment precludes irrational and arbitrary government action that could needlessly result in the destruction or deterioration of the papers and denial of public access."

They further argue that the public has a "First Amendment right of access to culturally and historically significant original documents" and that the "reprehensible nature of a person's crimes does not justify a conclusion that scholars and the public should be denied a chance to study his original papers."

"This is a case about the public's First Amendment right to investigate and study the thinking and motivation of Ted Kaczynski as evidenced by his original writings, and in doing so, to help foster greater understanding of a terrorist's motives in efforts to prevent future acts of terror," said Christopher Durbin of Cooley Godward LLP. "The government may not block public access to original papers because the writer is a bad person or because his writings are upsetting. Certainly historians and scholars would be interested in the information that could be drawn from the writings of, for example, the Oklahoma City or World Trade Center attackers." Durbin authored the brief with Cooley Godward lawyers Michael Traynor, Lori Ploeger, and Deborah Hussey, and ACLU-NC attorney Margaret Crosby.

The brief points out that the Department of Homeland Security itself recognizes the critical importance of understanding the behavioral and social aspects of terrorism. It has recently announced a $12 million grant to finance an academic center to study the subject.

According to Randall C. Jimerson, Ph.D., professor of History at Western Washington University and president of the Society of American Archivists, "For archivists the fundamental issue at stake in this case is the necessity of preserving an accurate record of the past to guide our future actions and decisions. The perspectives of terrorists and criminals are as important to understand as those of public officials and intellectual leaders as we respond to the challenges in our country and throughout the world today. Archivists make daily decisions about which documents and records of contemporary society will be preserved for future reference and use. This is essential to ensure accurate societal memory of the past. Armed with this knowledge, public citizens and leaders alike can address these issues squarely and confidently."

On June 23, 2003, Kaczynski filed a motion for return of the property seized by the government upon his arrest. The items included personal journals, papers and photographs, which he wants to donate to the Labadie Collection at the University of Michigan. The government refused to return the writings, claiming it had a lien on all of Kaczynski's property for the financial benefit of the crime victims-although the government has yet to take any action on the lien. Kaczynski's court-appointed attorney filed a brief that raised First Amendment concerns and the government then shifted positions, stating it would retain the originals, but that Kaczynski's criminal defense attorneys had copies of all the materials, and that they were free to donate copies to the university.

However, the copies were, in some instances illegible. On behalf of the Labadie Collection librarian, Kaczynski's attorney argued that original manuscripts are far more useful to researchers and historians than even legible copies because of the irreproducible characteristics that only originals possess. The magistrate judge agreed, and the government appealed to the U.S. District Court, which ruled for the government. In rejecting Kaczynski's motion, Judge Garland Burrell stated that donation of Kaczynski's papers would provide him with a "psychic benefit" that he did not deserve because of the atrocious nature of his offenses.

In illustrating the dangers of the government's current position, the amici brief asks two pointed questions: "Would it have been better to seal off or destroy the works of John Brown, Adolf Hitler, or Lieutenant William Calley to prevent them from reaping any 'psychic' benefit from the publication and study of their writings? Similarly, would the government be more prepared to prevent crime and terrorism if hindered by an inability to study the personal papers of Ted Bundy, Timothy McVeigh, or more recently, Abu Musab al Zarqawi?"

"The originals of documents are not only important to researchers and archivists, but also to librarians. Libraries are the primary information source in this country, and original documents verify their authenticity." said Judith Krug, director of the American Library Association's Office for Intellectual Freedom.

The Freedom to Read Foundation is a not-for-profit organization established in 1969 by the American Library Association to promote and defend First Amendment rights, to foster libraries as institutions that fulfill the promise of the First Amendment for every citizen, to support the right of libraries to include in their collections and make available to the public any work they may legally acquire, and to establish legal precedent for the freedom to read of all citizens.

The Society of American Archivists ("SAA") serves the educational and professional needs of its members, including 4,000 individual archivists and institutions, and provides leadership to help ensure the identification, preservation, and use of the nation's historical record. To fulfill this mission the SAA provides services such as continuing education, publications, annual meetings, and career development opportunities. The SAA also exerts active leadership on significant archival issues by shaping policies and standards, building effective coalitions, and improving public awareness of the value of archives. The SAA serves as an advocate on behalf of archivists on public policy issues which affect archivists' ability to function in a fair, professional, and successful manner.