Intellectual Freedom: Libraries as Defenders of the First Amendment

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1 KIM J. SETER BARBARA T. VANDER WALL JEFFREY E. ERB ELIZABETH A. DAUER COLIN B. MIELKE JENNIFER M. WASCAK Intellectual Freedom: Do you want a better understanding of how a library fits into the framework of the First Amendment? Attendees will be encouraged to participate as they are guided through varied first amendment issues such as: patron banning; privacy; censorship; art; access to public spaces; and the library s role in safeguarding access to information. Attendees will leave this session armed with the tools and the knowledge to defend the intellectual freedoms of library patrons. Presentation Learning Goals 1. Gain an understanding of the fundamental principles underlying intellectual freedom. 2. The best practices and procedures to address the uncomfortable issue of patron bannings; 3. The best practices and procedures to address questions from patrons regarding other patrons information; 4. What to do when patrons protest art or other forms of expression on display in the library; 5. The best practices and procedures for supervising access to public meeting spaces E. ORCHARD ROAD SUITE 3300 GREENWOOD VILLAGE, CO FAX: svw@svwpc.com

2 Page 2 of 10 I. INTRODUCTION: Libraries and the Search for Relevance. A. The true nature of the library. 1. The public grew to believe libraries were something less than their true nature. a. Repositories of dusty books. b. Card catalogues of searchable information. c. Quiet locations for contemplation, reading, and study. 2. Libraries have always been locations to store, retrieve and disseminate ideas and information. That information and those ideas are vital in a free society. The way to get good ideas is to get lots of ideas, and throw the bad ones away. Linus Pauling A pile of rocks ceases to be rock when somebody contemplates it with the idea of a cathedral in mind. Antoine de Saint-Exupery An original idea. That can t be too hard. The library must be full of them. Stephen Fry The ideas I stand for are not mine. I borrowed them from Socrates. I swiped them from Chesterfield. I stole them from Jesus. And I put them in a book. If you don t like their rules, whose would you use? Dale Carnegie One withstands the invasion of armies; one does not withstand the invasion of ideas. Victor Hugo (the History of Crime 1852) Go on then in doing with your pen what in other times was done with the sword: show that reformation is more practicable by operating on the mind than on the body of man, and be assured that it has not a more sincere votary nor you a more ardent well-wisher than Y[our]s. Thomas Jefferson to Thomas Paine June 19, You have enemies? Why, it is the story of every man who has done a great deed or created a new idea. Victor Hugo (Villemain)

3 Page 3 of 10 B. Freedom to speak ideas, freedom to see or hear speech, and freedom to disagree with speech and ideas are essential for a free and democratic society to survive. Certain rules apply, if speech and the dissemination of ideas are curtailed by governmental action. 1. Amendment No. I to the United States Constitution: 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 people peaceably to assemble and to petition the government for a redress of grievances. 2. Constitution of the State of Colorado: Article II, Sec. 10 No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty. 3. The courts have determined that the right to receive ideas is a necessary predicate to the recipient s meaningful exercise of his own rights of speech, press, and political freedom. Board of Education v. Pico, 457 U.S. 853 (1982); John Doe v. City of Albuquerque, 667 F.3d 1111 (10 th Cir. 2012). DISCUSSION TOPIC I: The operations of a public library are affected by the constitutional rights of every citizen. Public libraries must insure access to information and the means of distribution of information through speech and publication. 1. How does your library do this now? 2. The Constitution only pre-empts government action that abridges these rights. What are the implications for our society as ideas/information and distribution become privately owned or controlled through digitization and the internet? C. Whether and how a public library can control patron behavior if it is subject to the constitutional mandate to allow freedom of speech, assembly, publication and access to information depends upon an analysis called the Public Forum Doctrine. 1. General Principals of the Public Forum Doctrine.

4 Page 4 of 10 a. Not every place is appropriate for all speech or assembly and utilization of places and means of communication may conflict with other values or rights. b. Courts have determined that public libraries are Designated Public Fora in which there is a right to receive information and ideas and access information. See, John Doe v. Albuquerque above. I think the right to receive publication is a fundamental right. The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers. J. Brennan in Lamont v. Postmaster General, 381 U.S. at 308 (1965) c. Restrictions on CONTENT are only appropriate under extraordinary circumstances and require a compelling state interest. Perry Ed. Ass n v. Perry Local Educators Ass n, 460 U.S. 37, 46 (1983). d. Opening non-traditional forums for speech may make them public forums. Rules will apply when: a) a forum is designated (chat room, meeting room, art exhibit, display case); or, b) is considered a traditional public forum. e. Courts will scrutinize any restrictions on speech or access to information in a designated public forum for a significant state interest. 2. Public libraries must control patron behavior and library use within the rules that apply to a Designated Public Forum. DISCUSSION TOPIC II: To date, court cases have stated that libraries are public fora designated for: -expressive activity -receiving and disseminating information and ideas -reading, writing or quiet contemplation -assembly and speech. How will libraries designation of maker spaces, community gathering centers, sponsorship of concerts and community events, coffee shops,

5 Page 5 of 10 child care facilities etc. effect the constitutional rights associated with the Public Forum in the future? II. Controlling Patron Behavior in a Designated Public Forum. A. Banning Patrons for Activity Incompatible with the Designated Public Forum. 1. Libraries are Designated Public Fora for the receipt of and access to information. a. In a Designated Public Forum, the right to non-designated expressive activities is not guaranteed. For instance, the distribution of pamphlets or the use of a bull horn in the library is incompatible with the designated activity. In short, rules must be designed to promote the purpose of the forum in general. b. To insure that there is no infringement on 1 st Amendment rights, courts will scrutinize library rules to insure: i. Content neutrality; i The existence of a proper purpose to protect the forum; Reasonable and narrow application designed to achieve the proper purpose. 2. Access to a library building by way of a library card is deemed a liberty or property right regardless of the use of the library. a. The 14 th Amendment to the United States Constitution forbids any state to deprive any person of liberty or property without due process of law. b. Due process requires little more than an opportunity to be heard and to state your case before a decision-maker. 3. Policies that include a potential ban from the library must: a. Be in writing; b. Demonstrate a reasonable relationship to a significant aspect of the use of the library for its intended purpose;

6 Page 6 of 10 c. Clearly define the prohibited behavior so that it may be implemented objectively; d. Be consistently applied to every person; and, e. Provide for an appeal to satisfy the requirements of the 14 th Amendment. DISCUSSION TOPIC III: Access to the library may be for various lengths of time. How will you determine an appropriate length of time? Should the length of time be rationally related to the effect of the behavior on the libraries purpose? (That s even a hard question to write, let alone answer.) B. Addressing challenges to materials, art or other library or library patron displays: Censorship. 1. Ideas and information that are expressed in the most impactful way is the most likely to be challenged by those who oppose the viewpoint expressed. a. As noted above, restrictions because of or based upon CONTENT are nearly prohibited and will almost always violate the right to free speech and access to information. b. The key inquiry in a removal case is the official s substantial motivation in arriving at the removal decision. Campbell v. St. Tammany Parish School Board, 64 F.3d 184 (5 th Cir. 1995). c. Removal violates the constitutional right to receive information if the intent is to deny access to ideas with which the challengers or public officials disagree. 2. Policies and procedures for addressing challenges must consider content neutrality as a practical and legal matter. a. Provide clear content neutral policy guidelines for materials and the use of display areas to be reviewed prior to a display. i. An application process would be appropriate.

7 Page 7 of 10 Displays should be allowed on a first come basis with time limitations. b. A policy should be adopted providing procedures for challenging materials or displays and stressing content neutrality. i. Challenge forms can be useful to insure uniform application of the policy and the ability to determine the challenger s intent. i iv. An initial decision may be made subject to an appeal. The appeal process is important as a practical matter. Most challengers simply want to be heard. The basis for a proper challenge might be stated in the policy and procedure so that content is clearly excluded as a valid reason. Once the policy is in place, it must be followed. DISCUSSION TOPIC IV: Has your library ever banned material or displays. Under what circumstances might a valid challenge be asserted? C. The supervision of limited meeting spaces, display spaces and other areas of the library set aside for patron use is governed by time, place and manner restrictions. 1. A library is not required to provide meeting rooms or display space. 2. If meeting spaces, display spaces or other areas are to be provided for patron use, a limited or designated public forum is created and the library cannot discriminate based on content of the speech. a. Define the Forum. To control the public forum, the library should create policies that define/designate the purpose of the forum. These should: i. Be in writing; i Be consistently applied to determine access to the public forum for the libraries intended purpose for the forum; Be based upon objective criteria and content or viewpoint neutral;

8 Page 8 of 10 iv. Be consistent with the principal functions of the library. See generally, Hopper v. City of Pasco, 241 F.3d 1067 (9 th Cir. 2001). b. Once the forum is designated/defined, access to the forum can be restricted in several ways. i. Content based restrictions may be valid when the content is unrelated to the purpose of the forum. Courts will look for a compelling state interest in closing the forum and narrowly drawn restrictions to achieve that purpose. Time, place and manner restrictions may be applied to control the forum and eliminate disruption of the primary function of the library. a. Time restrictions control the use of the space for the convenience of the library and to avoid interference with other users or library functions. Restrictions should be applied neutrally and based on some rational system (first come, or limited usage). b. Place restrictions should be neutrally applied based upon natural limitations of the space with regard to allowed seating, size or sound systems. c. Manner restrictions should be neutrally applied, without reference to content to avoid disruption of other users and/or library functions. c. Policies should be developed to work in conjunction with the forum designation policy establishing procedures for the reservation and use of library spaces. They should: i. Be in writing; i Reference the forum designation policy so that time, place and manner restrictions are specific to the designated space or forum; Be content/viewpoint neutral;

9 Page 9 of 10 iv. vi. v Provide a reservation system that gives everyone a fair chance to utilize the spaces for the designated purposes; State the interest of the library in implementing the restriction; and Eliminate discretion in awarding use of the library spaces. D. Limiting participation in the public meeting of the Board of Trustees. Is it necessary to allow participation in order to provide full and timely access to a public meeting? 1. Participation is required when the statutes provide for a public hearing. See, , C.R.S. concerning the adoption of budgets. 2. In the absence of a public hearing requirement, it is not necessary to allow public participation in discussions at a Board meeting. However, it is wise to provide a time period specifically for public comment as it may alert you to issues that should be dealt with before they become a crisis. a. If you allow public comment, adopt a policy to allow the Board to control the speakers and the time. b. Policies or bylaws should define situations in which a speaker may be removed from the meeting. C. Participation in a public hearing or comment period may be halted by the Board President or presiding officer. The trick is to stay within the boundaries of the First Amendment concerning freedom of speech. As a good example, see, Steinburg v. Chesterfield County Planning Comm n, 527 F.3d 377 (4 th Cir. 2008). i. A clear agenda or hearing topic will allow you to keep a speaker on topic or remove him from the meeting while avoiding the problem of viewpoint discrimination. Governments need not tolerate disruptive speakers. However, there is no clear test to determine how much disruption is too much.

10 Page 10 of 10 Giving a Nazi salute to the board is not enough to justify removal from a meeting. See, Norse v. City of Santa Cruz, No , 2004 WL (9 th Cir. Dec. 3, 2004 unpublished) Cursing by shouting God Damn! was not sufficient disruption for removal from the podium. Leonard v. Robinson, 477 F.3d 347 (6 th Cir. 2007). Dumping Trash in the school cafeteria meeting place and refusing to yield the microphone was sufficient to allow removal of a speaker from the meeting. See, McMahon v. Riffer, 2002 WL (Cal. Ct. App. May 29, 2002) i iv. All speakers should be treated similarly as disparate treatment will support a First Amendment Claim where none would otherwise exist. A speaker should be given a warning, be reminded of the topic and rules, and be allowed a second chance to avoid expulsion. CAVEAT Information provided herein is for discussion purposes only. It is not intended to be legal advice on any specific topic. First Amendment and other legal issues are fact specific. Please contact our office if you would like to have further discussions of issues affecting libraries. We would be grateful for the opportunity to talk with you or make presentations to your staff or governing boards on these or other topics. Please contact: Kim J. Seter at kseter@svwpc.com Elizabeth Dauer at edauer@svwpc.com or visit our website at