1. Writing Legally Enforceable Library Policies The New Jersey Library Trustee Institute, Long Branch, NJ Friday, September 30, 2005 3:30 – 5:00 p.m. Mary Minow, J.D., A.M.L.S. LibraryLaw.com consult@librarylaw.com Will It Hold Up In Court?

2. Legal Disclaimer Legal information Not legal advice!

3. FEND off lawsuits F irst Amendment tread carefully E qual Enforcement N otice D ue Process (Appeals)

4. 4 Legal FrameworkConstitution Federal Law State Laws Local laws Library Policies

5. Don’t Have to Reinvent Criminal Justice Code Not Necessary: No Masturbation No Stealing No Breaking and Entering No Hacking Already against the law

6. Convictions Under State Law Masturbation - convictions –Tyson v. Texas, 2000 Tex. App. LEXIS 6095 –Minnesota v. Sihler, 2002 Minn. App. LEXIS 376 Assault –Ohio v. Davis, 2001 WL 877591 (Ohio. App. 12 Dist.) Murder (Body left in library parking lot) –Tennessee v. Rickman, 2002 Tenn. Crim. App. LEXIS 449 Hacking: Ventura County Library - People v. Lawton, 48 Cal. App. 4th Supp (2002) Cal. Penal Code Sect.502(c)(7) forbids unauthorized access to computer systems

7. Want to Prevent Problems? Not Necessary: No Masturbation No Stealing No Breaking and Entering No Hacking Already against the law Okay to cite most pertinent laws

8. Theft of Library Materials N.J.S.A. 2C:20-15 (2005) available at www.njstatelib.org/LDB/Library_Law/ All library facilities shall post at their primary entrances and exits a conspicuous sign to read as follows:

9. Library generally loses Library can win if Time Place Manner strong justification. SPEECH CONTENT in public forum BEHAVIOR + SPEECH BEHAVIOR Library Patron Policies and the Courts Library generally wins if Mission, Equal, Notice Due Process

10. Scrutiny Standard Affects Outcome reasonable Intermediate Strict Scrutiny

11. reasonable Behavior Policies Library Trustee Court hurdle

12. Behavior Policy: No Board Games Is This Rule Reasonable? People v. Taylor, 164 Misc. 2d 868 (N.Y. App. Term 1995) New Rochelle Public Library

13. YES, No Board Games Rule IS Reasonable. People v. Taylor, 164 Misc. 2d 868 (N.Y. App. Term 1995) New Rochelle Public Library wins

14. Court cites Kreimer Since Morristown’s rule was legally reasonable... People v. Taylor, 164 Misc. 2d 868, 869 (N.Y. App. Term 1995), citing Kreimer v Bureau of Police, 958 F2d 1242, 1262 (3d Cir 1992) “Patrons shall be engaged in activities associated with the use of a public library while in the building. Patrons not engaged in reading, studying, or using library materials shall be required to leave the building.”

15. … became factual dispute (not policy) Taylor claimed he used chess board while studying chess book. … problem was he didn’t mention this at the time People v. Taylor, 164 Misc. 2d 868, 869 (N.Y. App. Term 1995), citing Kreimer v Bureau of Police, 958 F2d 1242, 1262 (3d Cir 1992)

16. August 2005

17. VERY SHORT COURT OPINION The record supports the trial court's dismissal of the complaint. Library regulations permitted the directive barring plaintiff from the library for one year because of her repeated violations of library rules and disruption of library operations (see, generally, Kreimer v Bureau of Police for Town of Morristown) Farmelant v Hoffman, 2001 N.Y. Misc. LEXIS 723 (2001)

18. Library Mission, Purpose Kreimer case Foster a quiet and orderly atmosphere conducive to receiving and reading written communications Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992)

19. “ Reasonable” Standard for Behavior Rules Library Mission Statement Important Court will trust Library unless rule is really unreasonable e.g. no blinking Rule should be related to mission, purpose

20. FEND off lawsuits E qual Enforcement N otice D ue Process (Appeals) END Important! Even in Behavior Policies

21. Library Sued By Patron Charged With Trespass Followed library clerk as she left library Gave note asking for sex Brinkmeier v. Freeport, 1993 U.S. Dist. LEXIS 9255 (N.D. Ill. July 2, 1993) Let’s have sex Library Lost in END

22. E nforced Equally No Sleeping

23. N otice to Patrons –Written, posted –Not vague “Unwritten rules lend themselves to a myriad of problems, none the least of which is proof of its existence…” Brinkmeier v. Freeport, 1993 U.S. Dist. LEXIS 9255 (N.D. Ill. July 2, 1993)

24. Must be sufficiently clear that a reasonable person would understand that what s/he is doing violates the rule. If speech is involved at all, “more stringent” standard Armstrong v. D.C. Public Library, 154 F. Supp. 2d 67 (D.C. 2001), citing Anderson v. Creighton, 483 U.S. 635 (1987) More Stringent If ANY Speech Involved

25. D ue Process (Appeals) Patrons have a liberty interest in using libraries Patrons have significant First Amendment interest in using public libraries Risk of error Administrative burden Bottom line: Must offer appeals process if feasible

26. Harassment: Two Cases Kreimer case Patrons shall respect the rights of other patrons and shall not harass or annoy others through noisy or boisterous activities, by staring at another person with the intent to annoy that person, by following another person about the building with the intent to annoy that person, by playing audio equipment so that others can hear it, by singing or talking loudly to others or in monologues, or by behaving in a manner which reasonably can be expected to disturb other patrons. Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992) Brinkmeier case Unwritten policy Brinkmeier v. Freeport, 1993 U.S. Dist. LEXIS 9255 (N.D. Ill. July 2, 1993) Harassment Behavior Two Outcomes Library won Library lost

27. Harassment Policy Morristown Library Won Equal enforcement, Notice, Due Process Rule upheld Patrons shall respect the rights of other patrons and shall not harass or annoy others through noisy or boisterous activities, by staring at another person with the intent to annoy that person, by following another person about the building with the intent to annoy that person, by playing audio equipment so that others can hear it, by singing or talking to others or in monologues, or by behaving in a manner which reasonably can be expected to disturb other persons.

28. Earlier Version of Same Policy Note earlier library rule Patrons shall respect the rights of other patrons and shall not annoy others through noisy or boisterous activities, by unnecessary staring, by following another person through the building, by playing walkmans or other audio equipment so that others can hear it, by singing or talking to oneself or by other behavior which may reasonably result in the disturbance of other persons. Court said Library changed rule after talks with ACLU

29. Sex note case Unwritten practice No definition of “harass” Unlimited geographic scope No formal appeals FRI Analysis- Connect to Library Purpose Harassment Policy Freeport Library Lost

30. reasonable Intermediate BEHAVIOR + SPEECH Library Patron Behavior “Plus” Speech Policies Library Trustee Court hurdle

31. Intermediate Scrutiny mixture of behavior and speech –(policy may not aim at content) To win, Library must show a significant interest narrowly tailored ample alternative channels When Do Policies Regulate “Behavior + Speech” ?

32. Hygiene - Why Intermediate Scrutiny? Peaceful engagement in permissible First Amendment activities within the purposes for which the Library was opened, such as reading, writing or quiet contemplation. Turned away before entering door… no chance to “receive information”

33. Kreimer case Patrons whose bodily hygiene is offensive so as to constitute a nuisance to other persons shall be required to leave the building… Armstrong case Objectionable appearance (barefooted, bare- chested, body odor, filthy clothing, etc.).... or if his or her appearance "interferes with the orderly provision of library services." Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992) Armstrong v. D.C. Public Library, 154 F. Supp. 2d 67 (D.C. 2001) Library won Library lost Library Rules on Hygiene Hygiene Policies Two Outcomes

34. Morristown won Library Rule: Patrons whose bodily hygiene is offensive so as to constitute a nuisance to other persons shall be required to leave the building. Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992)

35. Hygiene Policy That Library Won New Jersey Nuisance Law "anything that unduly interferes with the exercise of the common right” “Nuisance” is objective legal term. Notice, Due Process given. Enforcement, Notice, Due Process

36. Earlier Version of Same Rule Patron dress and personal hygiene shall conform to the standard of the community for public places. This shall include the repair or cleanliness of garments. Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992) Library changed to “nuisance” standard

37. Hygiene Policy that Library Lost on END END - “Etc.” depends on interpretation, no instructions to guards, no appeals process Objectionable appearance (barefooted, bare- chested, body odor, filthy clothing, etc.).... or if his or her appearance "interferes with the orderly provision of library services." Enforcement, Notice, Due Process

38. Compare: Penis in Tights Case Rule: only said no shirt, no shoes Equal protection claim lost ND didn’t seem to matter Ruling: Visible genitalia “even more detrimental to the other patrons” than no shoes or shirt Doxy v. Chicago Public Library, CCHR No. 99-PA-31 (2001) Library won expansive reading of dress code

39. No Bare Feet Reasonable or Intermediate? Test for “Symbolic Speech” Particularized message Likely to be understood by the hearer Neinast v. Columbus Metro. Library (OH), 346 F.3d 585 (6 th Cir. 2003); cert. den., 2004 U.S. LEXIS 2792 (2004).

40. Court: Bare Feet is Behavior Reasonable Standard Court: Not likely that patrons will understand his purported message Library won

41. Library Patron Speech Content Policies (in public forum) Reasonable Behavior policy Strict Scrutiny Speech Content Court hurdle Intermediate Behavior + Speech

42. Meeting Room Policy Restricting Speech Content “The Library excludes from use of the Room: 1.Meetings that are politically partisan. 2. Religious services or instructions. 3. Commercial sales or presentations promoting specific companies or products. … ”

43. Library Loses Lawsuit by Genesis Commission Court: Constitution Room designated public forum no compelling state interest Pfeifer v. City of West Allis, 91 F. Supp. 2d 1253 (ED Wis. 2000)

44. Court cites Concerned Women Concerned Women for America v. Lafayette County, 883 F.2d 32 (5th Cir.1989) Evangelical women's organization won lawsuit against library that did not allow meetings for religious purposes

45. Wall Between Church and State? No Problem if Equal Access We find it peculiar to say that government “promotes” or “favors” a religious display by giving it the same access to a public forum that all other displays enjoy. J. Scalia, Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995)

46. Old Library Policies Knocked Over Like Deck of Cards 2002 June 26 Mitchell County Public Library (TX), sued 2001 Portage (Wisconsin) Public Library 2001-Escambia County Library (FL) 2000 Pine Mountain Regional Library System (GA) XXXX

47. Old Library Policies Knocked Over Like Deck of Cards 2002 June 26 Mitchell County Public Library (TX), sued 2001 Portage (Wisconsin) Public Library 2001-Escambia County Library (FL) 2000 Pine Mountain Regional Library System (GA)

48. Current case in California Religious Services? July 2004 Alliance Defense Fund sued Contra Costa County Library policy no “religious services” May 2005 Court preliminary injunction against library June 7, 2005 Board of Supervisors voted unanimously to seek appellate review Faith Center v. Glover, U.S. District Court No. C 04-3111 JSW

49. Library sued when it removed free gay newspaper from lobby after patrons complained Library removed all nonlibrary publications Giveaway Racks, Display Cases Same analysis as Meeting Rooms Gay Guardian Newspaper v. Ohoopee Reg'l Lib. Sys., 235 F. Supp. 2d 1362, (S.D. Ga. 2002), aff'd, 2003 U.S. App. LEXIS 27395

50. www.gaypeopleschronicle.com/stories05/July/0722053.htm

51. C hild Pornography O bscenity H armful to Minors Playboy (for adults) Nudes NAMBLA Ceramic Penis Art First Amendment broad umbrella What About Sex? Most IS Protected by First Amendment Internet terminals not a public forum United States v. Am. Library Ass’n, 539 U.S. 194 (2003)

52. Violence Is Not Sex NOT HARMFUL TO MINORS “graphic violence” is not "harmful to minors” laws prohibiting violent video games struck down by courts AAMA v Kendrick, 244 F.3d 572 (7th Cir. 2001), cert. den., 534 U.S. 994 (2001); IDS v. St. Louis Co., 329 F.3d 954 (8 th Cir. 2003)

53. Filters OK to block C-O-H if Disabling Policy Not Too Burdensome 20 U.S.C. § 9134(f)(3) (disabling permitted for both adults and minors); 47 U.S.C. § 254(h)(6)(D) (disabling permitted for adults). "to enable access for bona fide research or other lawful purposes." Next lawsuit likely to focus on actual implementation Lawfully Surfing the Net: Disabling Public Library Internet Filters to Avoid More Lawsuits in the United States (Minow) www.firstmonday.org/issues/issue9_4/minow/

54. Use Magic Legal Words in Your Policy “No illegal content” “No illegal activities” “No obscenity” Don’t use other words! “indecent,” no legal meaning in context of the Internet. ACLU v. Reno, 521 U.S. 844 (1997). "pornography“ no legal meaning

55. Post-Supreme Court Library Porn Case Library Lost on END Ralph J. Miller v. Northwest Region Library Bd., P Gwyn, Librarian, J. Hedrick, Director, 2004 U.S. Dist. LEXIS 25403, (December 8, 2004)

56. No Known Court Cases Latchkey Children at Library Common Law – generally no duty to aid child, but once begun, must see through STAFF needs clear policy! Staff follows policy; library likely responsible; Immunities apply to library and staff No policy, individual staff more likely responsible (esp. after hours) and liable

57. San Marino Ordinance No 099-1129 Children 12 or younger closing - call for ride 15 minutes - call police Police takes child home or to station First time - Warning Second time - Fees

58. Virginia Beach (VA) Latchkey Policy - Closing Under six, call police immediately Under no circumstances shall a staff member take the child out of the building, provide transportation, or physically restrain him/her from leaving. Virginia Beach City Administrative Directive 3.10

59. Virginia Beach - Posters Show Forlorn Children Photo of children sitting in front of building, look like they lost their puppy Lip trembling Library, Social Services, Recreation Centers, Police working together

60. Further Resources American Library Association Guidelines for the Development of Policies and Procedures Regarding User Behavior and Library Usage (Jan 2005) www.ala.org … search “policies” Public Library Association Creating Policies for Results: From Chaos to Clarity (March 2005) presented by June Garcia http://tinyurl.com/9p6mk GraysonBarber.com New Jersey atty Unattended children, meeting rooms & more Mary Minow LibraryLaw.com (+ blog)