LibraryLaw Blog

Pulpits and politics in library meeting rooms

New lawsuit against a library in Ohio that allegedly didn't allow a "Politics and the Pulpit" meeting/service in its meeting room. http://docs.justia.com/cases/federal/district-courts/ohio/ohsdce/2:2008cv00223/121378/2/

Hooray - I figured out how to use tags instead of categories in this blog

As I suspected, it's much easier and more flexible.  So if any of you are looking for new posts based on categories, you may not find them. Use the technorati tags at the bottom of a post instead. If it works like I think it will, I'll probably stop using categories altogether.

Update: It looks as if users who click on a technorati tag below will get everyone in the world's posts with those tags. That's useful, but it would be nice to have an option to limit it to this blog, the way flickr does.  Well, there's always the search button in the blog...

Law for Librarians

"Legal Ease: What Staff, Administrators, and Trustees Need to Know about Libraries and the Law,"  is a preconference sponsored by the Oregon Library Association on April 18, 2007. Even if you can't make it to Corvallis, check out the slew of useful legal materials for libraries that OLA has posted (with permission) from the ALA Law for Librarians conference last spring. 

May a public university stop a traveling envangelist from giving speeches on the grassy lawn outside the library?

Yes, at least in the 7th Circuit. In a clearly written opinion, Judge Posner dispenses with public forum analysis, saying that this case "falls into a crack between the rules."  A public university can decide who can make speeches on its lawn, if it uses content neutral criteria.  A rule limiting use to the university's own members plus those they invite to speak is sufficiently content neutral.

What is true is that a university that decided to permit its open spaces to be used by some outsiders could not exclude others just because it disapproved of their message. E.g., Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 828-30, 132 L. Ed. 2d 700 (1995). But it could use neutral criteria for access, such as that an outsider must be invited to speak on campus by a faculty member or a student group. American Civil Liberties Union v. Mote, supra, 423 F.3d at 444. The difference between invited and uninvited visitors is fundamental to a system of property rights.

Gilles v Blanchard, 200 U.S. App. LEXIS 3234 (Feb. 14, 2007) - has satellite photo of the grounds

When good librarians and bad policies collide…

From a colleague:

When good librarians and bad policies collide…
By Cleaner Newer

Given the nature of my employment, I have on occasion had the opportunity to address questions concerning library policy.  Recently, I was contacted by one of my colleagues from a public library who had a concern about a situation that had occurred at one of her branch libraries. 

Apparently, a branch library that is part of a system from which she is affiliated refused to let a certain group of people use their community room based on the branch library’s community room policy.  The group that sought to use the room supported a controversial position on a rather tumultuous topic.  It is also noteworthy that the group possessed 501(c)(3) status under the Internal Revenue Code of 1986.

In all fairness, I think that it is vital to mention that the policy upon which the controversy is based was adopted by a municipality and not by a library.  As a matter of fact, my colleague who is very sharp indeed, recognized that the policy was problematic and contacted me.

As a result of the communication that I had with my astute colleague, I was able to obtain a copy of the policy in question.  I was almost speechless after reviewing the policy.  I believe it is the most constitutionally problematic room policy that I have ever seen.  It is so troublesome that I felt it would be a great example of what not to do. 

The restrictions are content based, the language is vague and ambiguous and lends itself to discriminatory application, and there is an utter lack of any sort of appeals process, so it fails to support aggrieved parties’ constitutional rights to due process.  In short, it is an utter disaster.

I strongly urged my colleague to seek assistance from her library’s legal counsel, and to encourage the municipality to amend the branch library’s room policy immediately.
 
Anyway, such a rare treasure should be shared with all.  I have included a word for word copy of it below, however I have intentionally omitted names.

Any thoughts about this gem?   [CLICK BELOW FOR POLICY]

Library Law: Does the First Amendment Allow Libraries to Limit the Public Use of Their Property?

From the North Suburban Library System's series on Library Law:

Library Law: Does the First Amendment Allow Libraries to Limit the Public Use of Their Property?
By Gerard E. Dempsey and Janet N. Petsche
October 26, 2006

The answer to the headline of this article is “Yes, but…” and the “but” portion of the answer makes establishing a “Use Policy” for allowing some but not unrestricted public use of library property a challenge for library administrators. Such a Policy must be devised to take into consideration the needs of the community, the ideas of the members of the library board and the requirements of the First Amendment of the U.S. Constitution. Library administrators should be forewarned that to help avoid legal challenges, it is a task that should not be completed without the assistance of a skilled library law attorney.

For the rest, see http://www.nsls.info/articles/detail.aspx?articleID=96

Minow take:  There's one aspect of the article that I think is unclear. It says that in the Ohoopee decision, the court determined that

"removing all but governmental and library-approved publications from the lobby table to re-establish decorum by avoiding controversy and emotional reactions from the community and the possibility of litigation would satisfy the First Amendment despite the fact that the precipitating factor was the desire to remove a particular magazine." 

First, despite all kinds of exploration about the nature of the front-lobby forum in a library, in the end the decision says it only reaches a narrow issue. The issue is whether a library can constitutionally close a "hybrid limited/ non-public forum for free expression in its front lobby," even with censorious intent, where the resulting effect is content-neutral. It concludes that it can.  Second, the term "library-approved" sounds like the library has carte blanche to decide what it can remove.  Even though I read the decision as one that wished to give great latitude to the library (ratcheting down to "rational review" at least in a front lobby where there is a "captive audience," the library would not have the latitude to decide arbitrarily what can stay and what must go, particularly if the decision is based on the viewpoint of the publication.  The opinion discusses the desire to allow libraries to uphold a certain standard of decorum.  While that makes sense, it seems mighty murky to me, since its hard to apply consistently, an important objective in order to avoid standardless discretion by a public official. Luckily, the holding confined itself to the narrower question about closing a forum.

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.

Can you prohibit people from taking pictures of Jack Kerouac's On the Road manuscript on display at the library?

William Patry, copyright treatise author, calls our attention to a current dispute over Jack Kerouac's On the Road manuscript currently on tour at the San Francisco Public Library.

According to Thomas Hawk (pen name), a digital media and technology enthusiast, a security guard at the library told him he couldn't take pictures.

It's not really a copyright issue. Patry tells us that he thinks the photographs in question would qualify as news reporting fair use.   

But that's not the only way to control content.  The owner of a manuscript can restrict use by contract.

Patry writes:

Control over a physical manuscript can give you the ability to license people, but the question is, if someone doesn't take a license, and you don't otherwise have a contractual relationship, what right has been violated? In the case of a copyrighted work, the answer is that the Copyright Act makes, by statute, unauthorized reproduction a violation (subject to exceptions like fair use), but for photocopying a physical manuscript the owner of the physical manuscript has no statutory right unless he is also the owner of the copyright, which Irsay isn't.

My take: I see two relationships here. First, the manuscript owner has a contract with the library.  It likely has a clause requiring the library to prohibit photographs.   Second, the library has a relationship with the public.  Although it's unlikely that the library requires the public to sign an agreement before entering the exhibit area, the library has the right to enforce reasonable rules of conduct, related to its mission. Kreimer v. Morristown 958 F. 2d 1241 (3d Cir. 1992).  Assuming the library does a reasonable job putting patrons on notice and enforces the policy equally (i.e. no one takes photographs), I believe it has the right to enforce the policy. 

Then there is the practical aspect - it is a public library, after all, and doesn't have the capacity to require people to check their cameras at the door.  All it can do is post signs and security guards, and then tell someone to leave if they violate the policy. The pictures already taken, by the way, have been set free on flickr.

Gay Literature in the Lobby

An interesting struggle is shaping up in Upper Arlington, Ohio.  Can a library board remove free gay newspapers from the mass of materials distributed at the entrance of the public library?  According to an article in the Gay People’s Chronicle, one of the publications that a patron requested be removed, both a preliminary report to the library board and a legal opinion from the Franklin County prosecutor’s office suggest that the papers must stay unless they are obscene, pornographic, or harm minors.  The article suggests that the only way to limit legally the distribution of otherwise legal material would be to stop the distribution of all free publications.

It would appear that public libraries need to act carefully when the issue of removing publications comes up.

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.