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.

From the court opinion:

Given the Supreme Court's decision in American Library Association, there is no doubt that libraries are entitled to adopt Internet user agreements prohibiting the use of library Internet computers to access visual depictions that constitute obscenity or child pornography. Such a policy is consistent with the library's interest in providing Internet access for "research, learning and recreational pursuits," while also preventing the use of library computers to view online pornography. However, the Supreme Court's decision in American Library Association does not stand for the proposition that no constitutional protections apply to Internet computers at public libraries. In the present case, Plaintiff alleges that his inadvertent violation of the Library's Internet use policy resulted in him being permanently barred from using any of the Internet computers at thirteen regional libraries, without formal notification of the charges against him and without any appeal rights or opportunity to provide his side of the story. These allegations raise several constitutional concerns that are not addressed or precluded by the Supreme Court's decision in American Library Association. One such concern is the granting or denial of procedural due process. Plaintiff's claims must therefore be considered in light of established constitutional standards regarding procedural due process.

Comments

[Jim Wickham]

What is the current (Aug. 2008) state of the law on the question whether a patron may be summarily expelled from a library and banned from all library branches for breach of adopted rules of conduct. For a short period of time, for a specified period of time up to say 90 days, for a indeterminate time until a review person or body can be convened?

[L. Mackler]

May a public library summarily bar a patron from a branch without providing notice and an opportunity to appeal? Does due process require that the patron be afforded a fair hearing by an unbiased fact-finder?

Facts: 1. The patron was accused of intentionally throwing library materials at a staff-person. The patron maintains that upon provocation, she became angry and dropped the materials on the desk. The staff-person noted that he was "almost hit" and the patron immediately apologized and said that she was sorry and never would have intended to hit him. The patron left library. Upon next visit two weeks later, the patron was asked to leave and told that she was banned for 6 months from that branch. Review/appeal was denied. The patron continues insist that she did not "throw" materials "at" staffperson and meant no harm. Ban seems to be in nature of punishment, not fear of violence, as patron is permitted to use other branches.

[Mary]

Update via Deborah Caldwell-Stone, ALA OIF:
The plaintiff dismissed his suit in exchange for restored access to the Internet and a small payment that included his court costs. He now has to indicate his agreement to abide by the library's Internet use policy each time he accesses the Internet in order to use the computer.

[TruthInAdvertising]

Mary,

Thanks for the feedback. The other little wrinkle is that CIPA doesn't even apply to text-only sites so at a library operating under CIPA-defined rules I should be able to access sites of porn stories without even encountering a filter.

As you noted, the definition of pornography depends on who you ask. I've heard several stories of libraries kicking patrons off the Internet for accessing bondage sites that were clearly erotic but did not include full nudity. Is that legally defensible? If push came to shove, I don't think it would be.

It will be interesting to see what will happen in Phoenix where they are blocking access to all "porn" sites with no option to for unfiltered access. This seems like a return to the Loundon County case and if Phoenix blocks access to a site that is pornographic but not child porn or obscene, are they open to a legal challenge?

http://www.azcentral.com/arizonarepublic/northphoenix/articles/1222phx-library1222Z3.html

[Mary]

Good question... and one that the court completely sidestepped by using the "child pornography" or "obscenity" language that was upheld by the CIPA decision. The legal definitions of those categories are NARROW and leave out most of what folks generally know as pornography. The "harmful to minors" category, also circumscribed by CIPA, is much broader, but only applies to children under 17. That wasn't the case here.

The dirty secret is that the Supreme Court decision didn't really resolve much, even for those who support CIPA. I don't know any librarians who want patrons looking at "pornography" in the library, and CIPA doesn't really address that.

If there was a workable definition of "pornography" or "indecency" the problem could solved, leaving aside the reality that computers can't be used to make these decisions unless based on keywords and/or human judgment.

There is no workable definition. Every time a locality tries to come up with one, it gets overturned by the courts -- because it's not definable. It's like nailing jelly to a wall. Your classic artwork link is a good illustration. Lots of images fall somewhere between "art" and "porn." Who decides? The librarian? Does patron access depend on who's on duty? I know a librarian who would block the Sports Illustrated swimsuit issue if she could. I don't think the court (or the Supreme Court in CIPA) thought that part through.

The vexing issue is how to deal with it, since filters block legitimate sites like librarylaw.com, not to mention the Supreme Court CIPA decision itself.

The Supreme Court ducked this by saying the flaws are saved because adult users can ask to disable the filter. As Justice Kennedy wrote in his concurrence: "If, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case. The Government represents this is indeed the fact." See his quote and more of my analysis if you want.

You can find the legal definitions that CIPA uses at http://www.llrx.com/features/updatecipa.htm

[TruthInAdvertising]

Did the Court's opinion address the question of whether the patron may have had a 1st Amendment right to look at the nude pictures, even if they had not appeared inadvertently? That appears to be the big gray area that still needs to be addressed post-American Library Association.

How does a library create a defensible policy that allows patrons to look at classic artwork [http://www.tfaoi.com/aa/3aa/3aa289.htm] while blocking "porn"? (I don't think you can create such a distinction but I think there's a lot of libraries that would want to split those hairs!)