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Writing Legally Enforceable Library Policies: Will It Hold Up In Court?

Explore the legal framework and factors to consider when writing library policies. Learn about relevant laws, court cases, and best practices to ensure your policies are legally enforceable.

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Writing Legally Enforceable Library Policies: Will It Hold Up In Court?

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  1. Will It Hold Up In Court? 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

  2. Legal Disclaimer • Legal information • Not legal advice!

  3. First Amendment tread carefully Equal Enforcement Notice Due Process (Appeals) FEND off lawsuits

  4. Legal Framework Constitution 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 • 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 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

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

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

  10. Scrutiny Standard Affects Outcome Strict Scrutiny Intermediate reasonable reasonable

  11. Behavior Policies Library Trustee reasonable Court hurdle

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

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

  14. Court cites Kreimer Since Morristown’s rule was legally reasonable . . . “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.” 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)

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

  20. Equal Enforcement Notice Due Process (Appeals) END Important! Even in Behavior Policies FEND off lawsuits

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

  22. No Sleeping Enforced Equally

  23. Notice 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. More Stringent If ANY Speech Involved • 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)

  25. Due 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 Behavior Two Outcomes Harassment: Two Cases Kreimer casePatrons 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. Library won Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992) Library lost Brinkmeier case Unwritten policy Brinkmeier v. Freeport, 1993 U.S. Dist. LEXIS 9255 (N.D. Ill. July 2, 1993)

  27. Harassment Policy Morristown Library Won 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. Equal enforcement, Notice, Due Process

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

  30. Library Patron Behavior “Plus” Speech Policies Library Trustee BEHAVIOR + SPEECH Intermediate reasonable 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. Hygiene Policies Two Outcomes Library Rules on Hygiene Kreimer casePatrons 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." Library won Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992) Library lost Armstrong v. D.C. Public Library, 154 F. Supp. 2d 67 (D.C. 2001)

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

  37. Hygiene Policy that Library Lost on END Objectionable appearance (barefooted, bare-chested, body odor, filthy clothing, etc.) ... . or if his or her appearance "interferes with the orderly provision of library services." END - “Etc.” depends on interpretation, no instructions to guards, no appeals process 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 Library won expansive reading of dress code Doxy v. Chicago Public Library,CCHR No. 99-PA-31 (2001)

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

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

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

  42. Meeting Room PolicyRestricting Speech Content • “The Library excludes from use of the Room: • 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 Evangelical women's organization won lawsuit against library that did not allow meetings for religious purposes Concerned Women for America v. Lafayette County, 883 F.2d 32 (5th Cir.1989)

  45. 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. Wall Between Church and State? No Problem if Equal Access J. Scalia, Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995)

  46. 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) X X X X Old Library Policies Knocked Over Like Deck of Cards

  47. 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) Old Library Policies Knocked Over Like Deck of Cards

  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. Giveaway Racks, Display Cases Same analysis as Meeting Rooms Library sued when it removed free gay newspaper from lobby after patrons complained Library removed all nonlibrary publications 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

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