LibraryLaw Blog

Church Meetings in the Library

Faith Center Church Evangelistic Ministries applied to hold church services in the Contra Costa County (Antioch branch) public library's meeting room, and was turned down. Faith Center sued, and District Court Judge Jeffrey S. White granted a preliminary injunction on May 23rd, requiring the library to allow four-hour church services to be held one Saturday every other month, as the Faith Center had made the requisite showing that they were likely to prevail on the merits. The court enjoined the library from enforcing its "Religious Use Policy," which initially provided that "library meeting rooms shall not be used for religious purposes," but was amended during the suit to prohibit using library meeting rooms "for religious services or activities." The policy was amended again, so that it now prohibits the use of library meeting rooms "for religious purposes." According to documents filed in the case, using library meeting rooms for church services is using the facilities for "religious worship," and as such is properly excluded from useing the library's meeting rooms. According to the San Francisco Chronicle, Supervisor John Gioia said the meeting room policy was "important to taxpayers who didn't want to subsidize the services."

While meetings that concern religion are clearly protected, what about having religious services in the library? The plaintiffs relied on Good News Club v. Milford Cent. Sch.,  533 U.S. 98 (2001), a case that allowed after school instruction based on religion, as the instruction fit within the general policy of the after-school program, including fostering good morals. Is a full on religious service the same thing? We are about to find out.

End of Fair Use E-reserves?

Electronic / e-reserves have become an integral part of college life -- allowing professors and librarians to make materials easily accessible to students -- without the physical limitations of location or size of materials. You may have read recently about the concerns of the Association of American Publishers (AAP) of colleges and universities, as expressed in a letter (not legal action) sent to the University of California San Diego claiming that e-reserves violate "fair use" and thereby cut sales.

It would be a shame if using this technological option would preclude applying fair use analysis to e-reserves in the future. For many on-campus students, using e-reserves is a convenience -- but for online students, such as the LEEP library school program at the University of Illinois, they are often a necessity to receive required reading materials. As professors and librarians have worked together to make e-reserves available to students, hopefully these two powerful groups can continue to ensure students are able to use e-reserves.  Strong educational fair use arguments can be made, particularly when e-reserves are used by professors to offer spontaneous, current reading and when the copies are behind firewalls with password-only use.

Chart summary of orphan works proposals

Wow - University of California has analyzed orphan works proposals piece by piece.  Be SURE to look at Appendix B - a chart summary.

Changes to Patriot Act? Redlined version of Section 215 here

The Electronic Frontier Foundation posted a draft Patriot Act bill dated May 13, 2005. EFF says that the Senate Select Committee on Intelligence will consider this bill in closed session on Thursday May 26th.  The bill would repeal sunset provisions of the Patriot Act -- and it also makes some changes to the so-called "library records" provision. 

Libraries were not mentioned in the original Section 215 - the provision applies to any entity. In fact, I've always been surprised that news reporters haven't written about how it applies to them as well. Libraries are mentioned in an expanded accountability provision in the draft bill, requiring that Congress get a report on the number of times the provision is used to get tangible things (such as records) from libraries.

I pulled out the current law and marked it up with the proposed changes. It's impossible to read bills like this out of context.

For discussion on the proposal to broaden administrative subpoena authority [which would also affect library patron records] see Philip Carter's Intel Dump.

Notes: The provision at issue in the draft bill is numbered Section 211.  It would modify the business records section of the Foreign Intelligence Surveillance Act (FISA), which is at 50 U.S.C. 1861-1862.  Section 215 of the Patriot Act section originally broadened that portion, known as the "business records" provision of FISA. Most folks that I know still call that portion of FISA "Section 215."

Also, the EFF summary is dated May 11th - but is still applicable to the May 13th draft that I read, at least with respect to Section 215 (as revised by the draft's Section 211.)

Update on a rabbi's oral history defamation lawsuit: is a one-year statute of limitations long enough?

No, not when there are only a few copies in a couple of libraries .. .

A California appellate court recently reversed a ruling against Rabbi Pinchas Lipner and the Hebrew Academy of San Francisco, saying that his defamation action was not barred by the state’s one year statute of limitations. Why? Because the alleged libel was “hidden or beyond what the ordinary person could be expected to immediately detect or comprehend.”

The court looked at the number of copies available, noting three copies at the Bancroft, one at the Charles E. Young Research Library at UCLA, two copies at the New York Public Library, two at the Magnus Museum in Berkeley and one at Temple Emanu-El in San Francisco.

Although the Bancroft Library made copies of the oral history "available" to other libraries, the record established that only two, the New York Public Library and the Charles E. Young Research Library at UCLA, ever requested or were actually provided a copy.

The record did not indicate whether the New York Public Library made the document generally available to the public or whether any user of that library ever requested a copy. The Charles E. Young Research Library is not unrestrictedly open to the general public, but primarily serves the research needs of faculty and graduate students. Hebrew Academy of San Francisco et al, v. Richard N. Goldman, 2005 Cal. App. LEXIS 765 (May 12, 2005) PDF or DOC

May a library patron try to convert library staff to accept Jesus?

I turn this over to you, gentle readers. A librarian friend of mine sent me this:

One of our patrons keeps trying to endlessly engage us (staff) in his religious tirades. He's been told it's not appropriate and he screams discrimination and says if he were discussing the sports scores no one would say anything. He's probably right.Yesterday he called to look for some books. While I was checking for them and making some requested changes in his library record, he asked me if I had accepted Jesus as my personal savior. I managed to say I was looking for his materials and didn't want to discuss it but he kept at it and at it. Any time now he'll be coming in to collect the two books I got for him. The staff is dreading this. So how should this go? If he were indeed to talk about sports I would at least try to nod and smile. I don't want to talk religion with him. He says things like if I'd just listen, he could save me from eternal damnation. If I say I don't want to be saved, that just opens up other trails for him to go on.There shouldn't be different rules for staff and patrons for dealing with this guy. Just because we're public employees, we don't have to put up with this, do we?

Your thoughts?

Do you have questions about virtual reference legal issues?

I'm working on a webcast on virtual reference that Infopeople is sponsoring on June 16th for California librarians. Note: Anyone else can watch the archives soon thereafter.

Do you have any questions, insights, comments that could help me put together a relevant presentation? I'm working on this now - so please send your brilliant thoughts to me if you have any.

The webcast will look at common concerns such as:

What privacy concerns are raised? What can your library do to minimize privacy concerns?

What issues are raised when a librarian sends a scanned document via email or through a live chat session?

Does it make a legal difference whether you scan an article yourself and send it via email versus pushing it from a database via the chat session?

Who owns the copyright to the patron interviews? Can they be used in promotions?

Protect yourself and your library by getting a fix on the legal framework affecting digital reference and pushed content through this latest installment in Infopeople's ongoing series of webcasts on library legal issues.

Library subpoena fight makes it to USA Today

The Deming, WA library story is getting a lot of play today with a first hand account in USA Today by its library director. This is the library in northwest Washington voted to go to court to challenge an FBI subpoena for records of people who had borrowed a biography of Osama bin Laden.

I was discussing the Deming scenario recently with a group of librarians and trustees.  I was asked why the library should get the Robert B. Downs Intellectual Freedom Award for this, when law enforcement followed the right process.

In fact, that is all that libraries ask - I don't think I'm going out on a limb to say that libraries want to cooperate with law enforcement but just want to make sure state laws and user privacy is safeguarded by requiring a subpoena (some states) or a court order (other states).

Yet in this case, the subpoena was worth fighting (the FBI dropped the subpoena, by the way, after the library said it would move to quash it).  There was no actual suspect, but instead it was a fishing expedition with the thinnest of evidence of a real risk.

A biography of bin Laden had words written in the margin: "If the things I'm doing is considered a crime, then let history be a witness that I am a criminal. Hostility toward America is a religious duty and we hope to be rewarded by God."  This is actually just a quote from bin Laden in an interview with Time magazine in 1998 - and not a library patron's original statement....could easily be a student's notes, It does not warrant turning over the names of all the folks who checked out the book.

Librarian's brush with FBI shapes her view of the USA Patriot Act By Joan Airoldi

-thanks to Sheila Bryant and to Armineh for sending me the link.

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.

Restore Open Government Bill Introduced

Democrat Henry Waxman introduced a bill on May 12th to statutorily mandate that agencies interpret the Freedom of Information Act's presumption that government agency documents are to be provided to the public in a permissive and not a restrictive manner. H.R. 2331's title is:  The Restore Open Government Act. It would strengthen the laws that provide for an open and transparent Federal Government. Representative Waxman issued a press release discussing the law:

    The bill would expressly overturn both the “Ashcroft Memo,” which restricted the release of information under the Freedom of Information Act (FOIA), and the “Card Memo,” which urges agencies to stretch FOIA exemptions to withhold any “sensitive” information.

     The Archivist of the United States would report on the use of pseudo-classification designations, such as “sensitive but unclassified” and “for official use only,” and the bill would limit the use of pseudo-classification categories.

     President Bush’s executive order on presidential records, which severely curtailed release of these important historical documents would be repealed and replaced by  President Reagan’s executive order on presidential records.

     The bill would promote public access to information by funding aPublic Interest Declassification Board

     The bill would limit the broad FOIA exemption for critical infrastructure information created in the Homeland Security Act of 2002. The bill would further create transparency in agency compliance with FOIA and make it more feasible for citizen groups to challenge the improper withholding of government information.

There are 19 co-sponsors, and the bill has been referred to the Committee on Government Reform and to the Committee on Homeland Security.

A similar bill was introduced by Representative Waxman in the 108th Congress under the same name: the Restore Open Government Bill, but the bill died in committee.

This bill is broader than but related to several attempts to strengthen FOIA introduced in the 109th Congress by Senator Cornyn.