LibraryLaw Blog

Lawyers for Libraries - Seattle Nov 17, 2005

via the Office for Intellectual Freedom:

The Office for Intellectual Freedom of the American Library Association is pleased to announce the seventh Lawyers for Libraries Regional Training Institute, to be held Thursday, November 17, 2005 in Seattle, Washington. 

Lawyers for Libraries is the perfect opportunity for attorneys who work with - or desire to work with - libraries, to learn more about issues such as:

The USA PATRIOT Act and library privacy policies

Case law and procedures regarding challenges to materials, meeting and exhibit spaces, and patron behavior

Internet filtering and the Children's Internet Protection Act

How to minimize liability for your library

Lawyers for Libraries is open to attorneys, library trustees, and librarians accompanied by attorneys. 

The cost to attend is $395.00 for one and $745.00 for two.  Attendees are eligible for continuing legal education credits. For more information, please visit us at www.ala.org/lawyers or contact Jonathan Kelley at jokelley@ala.org or (800) 545-2433 ext. 4226.

Minow comment: I've been to several of the Lawyers for Libraries institutes and they are very worthwhile. See Iowa entry for Lawyers for Libraries 2003 notes.

Was the "hot" librarian in Primary Colors libelous?

No, according to a New York appellate court on April 21, 2005.  Daria Carter-Clark, an adult literacy librarian in Harlem, claimed that the librarian in Joe Klein's 1996 best-selling book Primary Colors was based on her and was libelous. On April 21st, a state appellate court upheld a ruling for Random House. It said that the description of the fictional character was not so closely akin to Carter-Clark that a reader of the book, knowing the real person, would have no difficulty linking the two.

According to American Libraries Online Oct 20, 2003,   Carter-Clark and the defendants had earlier agreed that she had never had intimate relations with the president, making  testimony from Clinton unnecessary.

Daria Carter-Clark, v. Random House, Inc., SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 2005 N.Y. App. Div. LEXIS 4202 April 21, 2005, Entered

For the full opinion...

Libraries that record television broadcasts needed to establish standing in ALA lawsuit

You've probably seen this alert, but the deadline is fast approaching for the lawyers to file the lawsuit - so if your library meets these criteria, act NOW (affidavits being prepared this week, must be filed with court by March 29th)

FROM the American Library Association:.

Are you a current member of ALA, ARL, AALL, MLA, and/or SLA?

-and-

2. Do you do any of the following?

• A. Archive television broadcasts for use by library patrons or other educational or research purposes?
• B. Use portions of television broadcasts in distance learning courses, or make broadcast portions available to teachers at your institution for this purpose?
• C. Make portions of television broadcasts available via your library's or your school's website for any educational, research, or commentary reasons?
• D. Record television broadcasts at your library for any other type of educational purpose?
• E. Have equipment that you use to archive, record, or manipulate copies of television broadcasts that you would replace if it no longer allowed you to archive, record, or manipulate the television broadcast in the same way you do today.

If so, contact either Carrie Russell, crussell@alawash.org or
MiriamNisbet, mnisbet@alawash.org in the ALA Washington Office

Patriot Act Section 215 lawsuit ruling expected soon

A Detroit Free Press editorial Feb 25th tells us that U.S. District Judge Denise Page Hood says she hopes to rule within the next few days on the ACLU lawsuit challenging the constitutionality of Sect. 215 of the Patriot Act.

MCA v. Ashcroft and Mueller

Better not offend me with that image of Rush Limbaugh! An untenable policy against "offensive images on internet terminals" at the Hawaii State Library

Hawaii State Public Library Sytem Rules and Policies

does indeed prohibit "display of offensive images on internet terminals" ... didn't the drafters run it by a lawyer?

Disruptive behavior. Any behavior deemed disruptive by the library staff shall be prohibited at all times. If the library customer continues to display disruptive behavior after being warned by the branch library manager or designee, the customer shall be requested to leave the library until the disruptive behavior has ceased. Prohibited disruptive behavior is that which unduly interferes with another library customer’s quiet enjoyment and use of the public library. Examples are, e.g., fighting; excessive and/or loud noise; display of offensive images on internet terminals; offensive body odor. (8-201.1-13)

For a fuller context...

Update on ACLU lawsuit against Hawaii State Library over gay sites on library computer

Debra Barayuga, the Honolulu Star-Bulletin Feb 15th gives an update on Carlos Hernandez, who claims he was banned from the Hawaii State Library because he was looking at gay-related web sites. 

• A hearing is set for March 14th in front of U.S. District Judge Helen Gillmor
• Hernandez had his no-trespass order rescinded because of a "technical error"   
• However, the ACLU says the library failed to notify Hernandez
• Deputy Attorney General Girard Lau says that the plaintiffs have not established standing and cannot proceed
• Lau says the statements given by the security guards say that Hernandez was not merely accessing gay-related sites, but "screen after screen" of frontally nude adult males
• According to the briefs filed in the case, the library policies do not prohibit accessing gay-related web sites, but prohibit "disruptive behavior" that "unduly interfere" with the enjoyment and use of the library by other patrons

and  uh-oh ...

• Examples of disruptive behaviors cited in the rules are the display of "offensive images" on Internet terminals

If the last point is actually in the library policy, I think the policy is a goner.  Who decides what's offensive and to whom?  The First Amendment protects offensive speech, not just beautiful speech....and who decides what's beautiful? As Supreme Court Justice Harlan once said, "One man's vulgarity is another's lyric."

If the guards statement is proven true, then it would make more sense to look at the sites and look at state law and see if there's a "harmful to minors" act, and if so, how such material is defined, whether display is prohibited, whether the patron was displaying such material to minors (or where minors were walking by), and what the penalties are (i.e. criminal).

A Rabbi sues the University of California for defamation over ugly comments about him in an oral history at the Bancroft Library. He loses - statute of limitations ran out. Who should pay the university's attorneys' fees?

A California Appellate court's answer: The Rabbi.

Rabbi Pinchas Lipner and the Hebrew Academy of San Francisco sued the University of California for "recording, printing and maintaining, as part of its Regional Oral History Office [at the Bancroft Library], an interview with co-defendant Richard Goldman in which the latter made a number of allegedly false and defamatory statements about both appellants."

The University successfully claimed that the lawsuit was filed well past the one year statute of limitations for a California libel claim (Cal. Civ. Proc. Sec. 340(c)) . Further, since the Rabbi had not shown a probability of success on the merits, the University was awarded over $76,000 by the trial court to cover about 3/4 of its reported attorneys' fees and costs. Under California law, an anti-SLAPP motion can be made when a lawsuit is filed against you that chills your constitutional right to free speech - curtailing written or oral expression on an issue of public interest in a place open to the public.

Rabbi Lipner appealed the attorneys' fees award.  To reverse the trial court award, the state appellate court would have needed to find the trial court abused its discretion (this level of review gives a thumb on the scale to the University, the winner in the trial court). The appellate court evaluated the time the University needed to respond to the lawsuit. It looked at, among other things, the gathering of "considerable historical information" including 350 pages of documentation by the assistant director of the Bancroft Library.  The appellate court ruled for the University on February 18th.  I don't know if Rabbi Lipner will appeal the decision further.

Hebrew Academy of San Francisco v. Regents of the University of California, Court of Appeal of California, First Appellate District, Division Two, 2005 Cal. App. Unpub. LEXIS 1417 (February 18, 2005, Filed)

To read more about the defamation claims and to read this case:

Internet Archive copyright decision appealed

This is the lawsuit to free old, out-of-print works that libraries and others want to digitize, but are still under an ever-lengthening copyright term. Tracking down copyright owners can be extremely difficult to impossible. In fact, the owners could be an author's heirs who have no clue that they own the copyright to, say, a 1930s church newsletter.

As Brewster Kahle, a plaintiff in the suit, posted to the archivists-talk list:

"Let's hope sanity prevails and we protect our libraries."

Source: Teleread January 21st

Stanford Center for Internet and Society is looking for two good people

2005-2006 FELLOWSHIP POSITION WITH CENTER FOR INTERNET AND SOCIETY

The Center for Internet and Society (CIS), located at Stanford Law School, is offering a one-year Fellowship (2004-2005) to work in conjunction with its Cyberlaw Clinic on public interest litigation involving technology and the Internet.

SUMMER INTERNSHIP POSITION WITH STANFORD'S CENTER FOR INTERNET AND SOCIETY

The Center for Internet and Society (CIS) at Stanford Law School is hiring a Summer Intern to work public interest issues involving technology and the Internet.

Read on for more details.

Neil Farbstein's lawsuit against Hicksville Library continues

Neil Farbstein, plaintiff in the suit, writes in the comments to this post that he is continuing his lawsuit against the library. Neil says that this case is not over yet. 

Trial court decisions can always be appealed within a specified timeframe. Sometimes, as noted in the the Farbstein case, the plaintiff is given an opportunity to amend his complaint at the trial court level.

Read on for the full court opinion in NEIL FARBSTEIN v. HICKSVILLE PUBLIC LIBRARY (NY) CV 02-6438 (DRH) (MLO) UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK 2004 U.S. Dist. LEXIS 11940 June 24, 2004, Decided