LibraryLaw Blog

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• Hernandez had his no-trespass order rescinded because of a "technical error"   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:

It's great to see librarian Trina Magi take on the Patriot Act ... in the Congressional Record

Trina Magi, Past President of the Vermont Library Association, took on the Patriot Act again recently at the Vermont Law School which held a town meeting on the state of civil liberties.  It was reported in the Rutland Herald, and Rep. Bernie Sanders entered the article into the Congressional Record (Feb. 1, 2005). See also March 12, 2003 Congressional Record.

Magi said she was worried that provisions of the Patriot Act allow investigators to look at the records of any business, including libraries, without a warrant.

"As an academic librarian, it is my job to help students really dig deeper,'' she said.  "In order to do that, students must feel that the library is a safe place to seek information.''

It's inspiring to see librarians speaking out for the freedom of inquiry that so many take for granted. Magi acknowledges the legitimate fear we face in the age of terrorism, but says

"We can also be afraid of an overreaching government that stretches too far into our lives."

You know, we don't know what we've got til it's gone.  Do we really want everything we read to be trackable?  Or do we think, "oh, they won't track me, since I'm not a terrorist"?   Or "I have nothing to hide, it's okay if they watch me - that's the price of freedom" (ironic smile). 

Librarians well know that some people read books, websites, etc. on topics they wish to keep private...on abuse, disease, marital problems, and the list goes on.

To read the full report...

Bill to keep gay books out of libraries officially read by Alabama legislature February 1, 2005 - Text of HB30

The Alabama state legislator's bill to prevent public libraries and other public entities from owning, purchasing, or making accessible any materials regarding homosexuality or gay culture has been introduced as HB30, first read February 1, 2005.

It says that no public funds may be used by public libraries (or schools, colleges, universities) to purchase or promote printed or electronic materials that "recognize, foster, or promote a [homosexual] lifestyle."

Who would evaluate the materials?  How would ever-changing databases be screened? What would the standards be for determining what would be promoting homosexuality? Would all materials on homosexuality be banned, since even materials condemning homosexuality recognize its existence? Would this new mandate become the full-time occupation for library staffs?

Read on more analysis viz a viz lessons learned from the history of free speech, libraries and the Supreme Court and for the text of HB30.

May a public library summarily take away Internet access from a patron who is looking at pictures of nude women?

Grrr..the blog ate my entry TWICE, so here's a much shortened answer:

No, not without giving the patron notice and an opportunity to appeal, at least according to a federal district court in North Carolina this month.

Ralph Miller sued the library, the library director, and the librarian who barred him from the Internet.  He claims that she came up behind him when he was reading the Russian newspaper "Pravda.ru" online.  "Unwelcome and unsolicited" nude image(s) had popped up on his computer.  Miller says that the librarian ordered him off the computer at the Mt. Airy (N.C.) library and banned his access at all thirteen libraries in the system.

The court just ruled in favor of Miller.  That is, he's made a valid due process claim. He has a First Amendment right of access to information (Kreimer, Neinast, Armstrong cases). At a minimum, the library must give users notice and an opportunity to appeal.

The court said that the Supreme Court's decision upholding the Children's Internet Protection Act (CIPA) makes it clear that libraries can adopt Internet use agreements prohibiting users from accessing visual depictions of child pornography and obscenity. That does not mean, however, that libraries can dispense with due process.

Minow take: I'm surprised (again) if the library doesn't have some appeals process, essential for legally enforceable behavior policies. Maybe the patron is telling the truth - what if he was just trying to read Pravda? What was the nature of the photos? (Remember the Hawaii patron who sued the library when he was allegedly banned looking at pictures of men with their shirts off?) Miller deserves a chance to tell his side of the story before summarily having his access taken away. Is there more to the library's side of the story? Maybe he should have been banned, after getting due process.  We need the facts, which we'll get if it goes to trial.  More likely it'll settle. If you're in North Carolina and follow this case, please send updates back to LibraryLaw blog.

Ralph J. Miller v. Northwest Region Library Bd., P Gwyn, Librarian, J. Hedrick, Director, 2004 U.S. Dist. LEXIS 25403, December 8, 2004.

Lawyers for Libraries update in 2003

The State Library of Iowa offered a legal update for libraries in June 2003 (I just stumbled upon it), based on the Lawyers for Libraries training offered by the American Library Association.  It covers privacy, warrants, liability, public forum and free speech issues.  It's in outline form, and gives relevant case citations. 

You snooze you lose - lawsuit against Ann Arbor library dismissed

The lawsuit against the Ann Arbor Public Library by the swearing patron was dismissed. 

Too bad - it would have made an interesting case - perhaps giving the library world more guidance on setting legally enforceable library behavior policies. Can you ban a patron for foul language? Was behavior also involved? This case won't guide us.

from Library cursor case dropped Fredric Maxwell asks for dismissal after relocating to California by Liz Cobbs, Ann Arbor News via MLive, December 8, 2004

p.s. thanks to a couple of Ann Arbor folks for the alert.

Employee speech: The Court's abuse of the law more troubling than its abuse of the facts

A reader wrote me concerning the Roe case:

You are dismayed by the Court's interpretation of the facts of the case.  The Court, rightly or wrongly, honestly or dishonestly, concluded that Roe's activities were detrimental to the SDPD. But that is fact-specific; if Roe had not worn a uniform and had worn, say, a Zorro mask so that even people who knew him would not have recognized him as a police officer, then I presume that the Court would not have concluded that his activities were detrimental to his employer. The Court's abuse of the facts is not as troubling to me as its abuse of the law.

Its abuse of the law consists in its setting up alternate lines of cases so that it may choose whichever line it wishes to reach the result it prefers. It should have explained how Pickering and NTEU fit together. Here's what I mean.

In San Diego v. Roe, the Court held that a police department could fire a police officer who sold a video on the adults-only section of eBay that showed him stripping off a police uniform and masturbating. The Court found that the officer’s “expression does not qualify as a matter of public concern . . . and Pickering balancing does not come into play.” The Court also noted that the officer’s speech, unlike federal employees’ speech in NTEU, “was linked to his official status as a police officer, and designed to exploit his employer’s image,” and therefore “was detrimental to the mission and functions of his employer.” Therefore, the Court had “little difficulty in concluding that the City was not barred from terminating Roe under either line of cases [i.e., Pickering or NTEU].” This leaves unclear whether, had the officer’s expression not been linked to his official status, the Court would have overruled his firing under NTEU or would have upheld it under Pickering on the ground that his expression was not a matter of public concern.

Consider this: If Roe had posted photographs of beautiful sunsets, would the Court have said that they were not matters of public interest? It would have to, I think, because the videos were not obscene, and it's not the Court's business to evaluate the importance of various forms of "art." (An exception is that, in Erie v. Pap's A.M. — the second nude dancing case — the Court said that nude dancing "falls only within the outer ambit of the First Amendment's protection." 529 U.S. at 289.  And, of course, the Miller test includes evaluating artistic (or other) value.)

So a governmental employer who doesn't like pictures of sunsets can, under Pickering, fire an employee who posts them, without doing any balancing; i.e., despite the fact that the pictures of sunsets are not detrimental to the employers and the firing serves no legitimate governmental interest. If, however, Congress passes a law providing that employees can be fired for posting pictures of sunsets, it would be unconstitutional under NTEU. The Court's failure to integrate the cases is what bothers me.

Added December 8: When I said that "a governmental employer who doesn't like pictures of sunsets can, under Pickering, fire an employee who posts them, without doing any balancing," I meant, if the Court applies Pickering. I did not mean to rule out the possibility that it would apply NTEU on the ground that, unlike in Roe's case, the employer would not suffer a detriment from the employee's speech. We just don't know which line of cases the Court would choose to apply — and that's the problem.

Should you sell a porn video of yourself dressed as a librarian on eBay?

Now that I've got your attention ... the Supreme Court decided against a police officer yesterday who made pornographic videos (note: not legally obscene) and sold them on eBay.     Added: a thoughtful reader's response is here.