Meeting Rooms, Exhibits, and Other Sticky Bits:

Policies to Keep You out of Court

June Pinnell-Stephens

Presented at the Law for Librarians training, April 4-6, 2006, Chicago, Illinois. Not to be altered or added to without permission of the author. Contact June Pinnell-Stephens at

jpstlib@451north.net for permission.

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Corollary First Amendment Rights

• The right to speak is meaningless without the right to be heard; therefore, receiving speech is a 1st Amendment right.

• The library is the place set aside by government for the receipt of speech; therefore, use of a public library is a 1st Amendment right.

Infringement of Rights

When constitutional rights are involved, the courts apply strict scrutiny, which requires the highest level of protection, to any action taken by the government. The government must:– prove it has a compelling interest in taking the

action– demonstrate that action is the least restrictive

means of addressing the problem

Other Amendments

Fifth Amendment: No person shall … be deprived of life, liberty, or property, without due process of law …

Fourteenth Amendment: No State shall … deny to any person within its jurisdiction the equal protection of the laws.

Kreimer v. Bureau of Police for Morristown,

958 F.2d 1242 (3d Cir. 1992)

In this case, Richard Kreimer, a homeless man, sued the public library when it enforced regulations concerning patron behavior that resulted in his ejection from the building. He claimed the library violated his 1st Amendment right of access to information and that the library’s regulations were too broad to be enforced in a manner that would support his right to due process and equal protection.

1st Amendment Issues in Kreimer

Judge Sarokin in the District Court wrote, “The right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his rights such as speech, press, and political freedom. Accordingly, the library policy at issue in this case, which conditions access to public reading materials, necessarily falls within the purview of First Amendment jurisprudence.“

1st Amendment Issues in Kreimer, continued

The Court of Appeals also said, “Our review of the Supreme Court’s decisions confirms that the First Amendment does not merely prohibit the government from enacting laws that censor information but additionally encompasses the positive right of public access to information and ideas… This right includes the right to some level of access to a public library, the quintessential locus of the receipt of information.”

Public Forum in Kreimer

The Court of Appeals wrote, “In this case, the government intentionally opened the Library to the public for expressive activity, namely “the communication of the written word. ... In our view, ... the Library constitutes a limited public forum, a type of designated public fora.”

CIPA Decision

• “In sum, the more widely the state opens a forum for members of the public to speak on a variety of subjects and viewpoints, the more vulnerable is the state’s decision selectively to exclude certain speech on the basis of its disfavored content, as such exclusions distort the marketplace of ideas that the state has created in establishing the forum.”

Concerned Women for America, Inc. v. Lafayette Co.,

883 F.2d 32 (5th Cir. 1989)The County library that had permitted various groups to use its auditorium had created a designated public forum and thus could not deny access to groups whose meetings had political or religious content. Such a denial would be based on the content of speech and would be permissible only as the least restrictive means to serve a compelling interest. Preventing disruption or interference with general use of the library could be such an interest; library officials’ first step to controlling such disruptions would be to impose reasonable regulations on the time, place, or manner of the auditorium’s use, provided the regulations apply regardless of the subject matter of the speech.

Lamb’s Chapel v. Center Moriches Union Free Sch. Dist.,

508, U.S. 384, (1993)

The Court held that a school district that opened its classrooms after hours to a range of groups for social, civic, and recreational purposes, including films and lectures about a range of issues such as family values and child-rearing, could not deny access to a religious organization to discuss the same, permissible issues from a religious point of view. Whether or not the classrooms were public fora, the school district could not deny use based on the speaker’s point of view on an otherwise permissible topic

Rosenberger v. Rector & Visitors of the U. of Virginia,

515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d. 700 (1995)

The Supreme Court held that a public university’s refusal to fund a student-run religious newspaper violated free speech. The newspaper in question would have discussed news and events at the university, but from a religious viewpoint; since the school funded other newspapers, it could not deny funds to a religious newspaper. Such restrictions based on the viewpoint of a speaker are improper when the government spends money to fund a diversity of views from a variety of private speakers.

Planned Parenthood/Chicago Area v. Chicago Transit

Authority, 767 F2d 1225, 1232 (7th Cir. 1985)

The Court “question[ed] whether a regulation of speech that has as its touchstone a government official’s subjective view that the speech is ‘controversial’ could ever pass constitutional muster.”

Library Policies

• Elements– Describe the area– Determine the type of forum– Define eligibility for use– Establish regulations for use– Provide a means of appeal

Describe the area

• Lobby – The library will make space available for literature, either as handouts or posted notices, from FNSB non-profit organizations or governmental agencies engaged in educational, cultural, intellectual or charitable activities. (FNSB lit. distrib. Policy)

• Main library – The library may make copies of documents addressing issues of local concern from governmental agencies or from private companies in fulfillment of governmental regulation available for public review. The library may distribute library-related material or other governmental resources. No other distribution or display of literature and no solicitation will be permitted. (FNSB lit. distrib. Policy)

Describe the area

• Meeting rooms

• Exhibits/displays

• Bulletin Boards

• Literature distribution

• Other?

Public Fora

TYPE ELIGIBLE GROUPS

CONTENT

Open or traditional public forum

All No restriction possible

Designated or limited public forum

All groups that meet a content- and viewpoint- neutral definition

No content- or viewpoint- restriction is possible

Closed or nonpublic forum

Library or related governmental units

Determined by the library

Determine the type of forum

As part of their public service and information mission, the FNSB Public Libraries have established separate types of areas for the distribution of literature not part of the library’s collection. Each area represents a different type of public forum and is controlled by different regulations:– Library Lobby and William Berry Room (designated or

limited public forum) – Library Entrance and Walkway (no public forum) – Library Grounds (open forum). (FNSB lit distribution

policy)

Determine the type of forum

• Meeting rooms

• Exhibits/displays

• Bulletin Boards

• Literature distribution

Define eligibility for use• As an educational and recreational center, the library

offers the use of its meeting rooms for public meetings and programs of a non-commercial nature. Permission to use the rooms will be denied any group whose purpose for the meeting is illegal, solely personal, of a commercial nature (i.e. having profit as the purpose for the meeting), or where satisfactory adult sponsorship is not provided. (FNSB meeting room policy)

• As part of its public service and information mission, the library makes available designated display and exhibit areas to FNSB non-profit organizations engaged in educational, cultural, intellectual or charitable activities. (FNSB display policy)

Define eligibility for use

• Meeting rooms

• Exhibits/displays

• Bulletin Boards

• Literature distribution

Establish regulations for use• Prohibited Content – Displays may not contain

any of the following: explosives, biologically or chemically hazardous material, apparatus which produces noise, firearms, perishables, speech that is not constitutionally protected or material that violates the elections laws when the Library is used as a polling site. The Library Director may prohibit other items which are illegal or deemed to present an immediate, demonstrated threat to the public health and safety. (FNSB display policy)

• Abuse of meeting room regulations is reason for denial of permission for future use. (FNSB meeting room policy)

Establish regulations for use

• Meeting rooms

• Exhibits/displays

• Bulletin Boards

• Literature distribution

Provide a means of appealReconsideration and Appeal - Patrons concerned about material in, or scheduled for, display spaces are welcome to discuss those concerns with a professional staff member and/or the Library Director. Patrons who want the Library Selection Committee to reconsider material in a display space will be given Request for Reconsideration forms and informed of the reconsideration procedure.

Since displays are exhibited for a relatively short time and early notification of planned displays will be provided through advance notice and other means, patrons are requested to return the completed Request for Reconsideration form as soon as possible after a display opens.

The Library Selection Committee will meet and make a decision within two Fairbanks North Star Borough office working days of receipt of the Request for Reconsideration form following the opening of a display.

The Library Director will use appropriate expedited means to communicate the Selection Committee's decision to the patron(s) who submitted the Request for Reconsideration. (FNSB Display policy)

Provide a means of appeal

• Meeting Rooms

• Exhibits/displays

• Bulletin Boards

• Literature distribution

Case studies

• Fairbanks North Star Borough Public Library (1995)

• Anchorage Public Library (2001)• Juneau Public Library (2002)

Fairbanks

• Bond issue• Earthquake• Vladivostok

Fairbanks Daily News-Miner, 10/95

Fairbanks Daily News-Miner, 10/95

Fairbanks Daily News-Miner, 10/95

American Libraries, 8/01

PFLAG/Anchorage, et al., v. Municipality of Anchorage

(Preliminary injunction, 9th Cir., 2001)

“The distinction the Municipality currently makes between exhibits that are educational and those that are promotional relies on the ambiguities and vagueness of those terms. It does not appear that the Municipality has applied these terms consistently.”

• Ordered:“The Municipality of Anchorage, and its agents, employees, or

representatives, are hereby prohibited from engaging in impermissible viewpoint discrimination in the displays at municipal libraries.”

Juneau Empire, 6/02

Juneau’s response• “The Library Director will hear appeals regarding

display space. Further written appeal may be directed to the City Manager. The City Manager's determination will be made in consultation with the City Attorney acting as legal counsel for the City and Borough of Juneau. The City Manager provides the final administrative remedy in this appeal process.”

• “The display case which is available for nonprofit group use is located next to the small conference room.”

• “Placement of nonprofit group displays beyond the entryway, the service desks, and the collections offers library patrons reasonable individual freedom to choose whether to view each month's display(s).”

• http://www.juneau.org/library/display.php

Anchorage’s response• “Permission may be denied to, or revoked for any exhibit

whose purpose is personal, commercial and/or has the potential to cause, or causes, substantial disruptions or material interference with the functions of the library as described in The Statement of Mission and Service Strategy (Adopted Jan 27, 1993, rev. 1994) or is not in compliance with the Library Exhibit Policy.”

• “Using abusive or profane language” is prohibited in the library’s public code of conduct.

• “If an exhibit request is denied and/or permission revoked or modifications suggested after acceptance, the requester may appeal that decision to the Library Advisory Board, which will provide advice to the municipal Administration. The Director of Cultural and Recreational Services will make the final decision concerning the exhibit.”

• http://lexicon.ci.anchorage.ak.us/aboutus/policies/exhibits.html

Fairbanks’s response

• “Prohibited Content - Displays may not contain any of the following: explosives, biologically or chemically hazardous material, apparatus which produces noise, firearms, perishables, speech that is not constitutionally protected or material that violates election laws when the Library is used as a polling site. The Library Director may prohibit other items which are illegal or deemed to present an immediate, demonstrated threat to the public health and safety.”

• “This policy will automatically terminate on the two year anniversary of its adoption unless renewed by the Library Commission before that date.”

• http://library.fnsb.lib.ak.us/books/policies.php#display

What I learned

• Follow your policies• Trust your community • Integrity is the library’s strongest attribute and

greatest ally. We could have taken the easy way out and avoided a major controversy. Instead, we were able to demonstrate to the community that we protect and include all viewpoints. We also took the opportunity to educate the community about the library’s role in a democracy.

• The right thing to do was also the smart thing to do.