Gay display in Florida library - court rules against First Amendment but allows discrimination (Equal Protection) claim to be considered

The First amendment just went down in flames in a federal district court in FLorida. However, equal protection for gay library patrons may still win the day if the library patron wins the next round.

Redner v. Hillsborough County, 2006 U.S. Dist. LEXIS 50040 (M.D. FLa. July 20, 2006).

Facts: A Gay Pride display was placed at the West Gate Regional Library in June 2005. The display featured young adult books by gay authors or featuring gay, lesbian, bisexual, transgender, queer  and questioning themes. The display was originally placed at the library's main entrance, but was removed due to complaints. A smaller display was later created and relocated in the adult fiction section.

In response, Hillsborough County commissioners adopted this policy:

Hillsborough County Government abstains from acknowledging, promoting, and participating in gay pride recognition and events.

The lawsuit was filed by a library patron claiming that his First Amendment right to receive information was violated. He also claimed his due process rights to equal protection as a homosexual were violated.

First amendment claim:

One of the hardest parts in First Amendment lawsuits is establishing standing. That is, the library patron had the burden to show a causal connection between the govt policy and his own injury. The county argued that the patron's complaint was a generalized grievance like others who desired to see the display, rather than an individualized harm.  The court agreed, writing that the patron said he became aware of the display after reading an article about its removal and "would have liked to visit" the display.  The court said he did not claim that he had actually visited the library with the intent to view the display and was unable to do so because of the County policy.  Therefore, said the court, he failed to establish standing that he suffered individual harm.

[Minow question to readers: Does this distinction make sense to you?]

Equal Protection claim:

The patron also claimed that the county policy disadvantaged homosexuals desiring to exercise their First Amendment rights.

The court quoted the Supreme Court ruling that struck down an anti-gay Colorado constitution amendment that was similar to the Hillsborough ordinance. The Supreme Court wrote:

"A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense." Romer v Evans, 517 U.S. 620, 633 (1995).

The court gave the patron 20 days to amend his complaint to describe how the County's policy would make it more difficult for one group of citizens than for all others to seek aid from the government.

According to the July 22d TBO.com, Redner says he will amend the complaint and appeal other portions of the decision.

Here's a summary of an earlier ruling, as posted at actwin.com. I haven't seen the fulltext of the earlier ruling. If you have, please send.

30) Joe Redner/Hillsborough County, Florida, April 11, 2006 (Gay Pride)
  This decision rejected an application for an injunction to block Hillsborough County's ban on any acknowledgement of Gay Pride. The county ordinance was passed last year after Commissioner Ronda Storms became outraged over a Gay Pride display at a local library. After Storms and several residents complained the display was removed, and several days later a much smaller one installed. But Storms vowed to bring a motion before the Commission to ban such displays in future. In June commissioners passed the ordinance which bars the county government from any acknowledgement of Gay Pride in any public facility, and a second ordinance making it virtually impossible to repeal the first one. Joe Redner a local businessman and civil rights activist filed suit to have the ordinance overturned and sought an injunction to prevent the ordinance from taking effect while the lawsuit is underway. In filing the suit Redner came out publicly for the first time. "Plaintiff is a homosexual who demands equal treatment from defendants, and he is also a library patron who wishes to view library exhibits and displays - particularly those with a gay viewpoint and content - to acquire knowledge and increase his awareness," his suit alleged. The court filing said that the ordinance "stigmatizes the gay viewpoint" and violates Redner's First Amendment rights. In a one-page ruling, affecting only the application for an injunction, U.S. District Judge James Moody wrote that Redner failed to prove irreparable harm would come to him by allowing the policy to remain in place while his lawsuit is being decided. In court filings the county said that Redner's lawsuit to have the ordinance overturned is likely to fail because the law does not seek to control private speech, only "governmental speech". "The county should not be forced by judicial act to endorse 'gay pride' activities any more than the government might be forced to endorse Nazi activities," the county argues.

From http://www.actwin.com/eatonohio/gay/fedct.html

Comments

[Anita L. Cole]

The distinction does not make sense, because libraries have typically been a public forum for ideas. The ordinance passed squelches all ideas that come from a specific class of people not approved by the writers of the ordinance. Libraries, in fact, frequently have copies of Hitler's writings, and also Karl Marx's writings. This is not a sign of approval -- it is an attempt to inform. Including gay ideas does not neccessarily indicate approval, only that information from all parties can be presented.

[S.cotus]

This distinction is a big one in constitutional law and exists in many contexts. The principle case on this is Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), which held that a person who might have wanted to visit foreign countries whose wildlife populations were (allegedly) devastated by American policies didn’t have a standing to sue.