Law for Indiana Librarians – in a Nutshell
Indiana Library Association, District 3, Spring Conference, Noble County Public Library, Albion IN, April 24, 2008
Disclaimer: If in need of legal advice, seek counsel. This presenter is not an attorney.
ALA.OIF / FTRF – 800-545-2433, ext. 4223; oif@ala.org; http://www.ala.org/oif
ILF – 317-257-2040; lkolb@ilfonline.org; http://www.ilfonline.org/IFC/ifmanual.htm
1. Constitutional Foundation
The Constitutional rights are not subject to majority vote – only to amendment & judicial interpretation.
The Constitution is the product of a violent, revolutionary era.
The First Amendment includes freedom of Speech, Press, Religion, Assembly & Petition.
The corollary right to receive information is both implied and essential to the exercise of First Amendment rights.
Board of Education v. Pico, 457 U.s. 853, 867 (1982)
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)
The First Amendment prohibits government restrictions on speech based on its content.
Courts have held that content based restrictions are automatically unconstitutional unless they can pass strict scrutiny.
Necessary to achieve a compelling government interest;
The rule is narrowly drawn to achieve the government interest; and
No less restrictive alternatives exist that will achieve that interest.
2. First Amendment Exceptions: e.g. fighting words, libel, slander, commercial speech, child pornography and obscenity.
Congressional Research Service, “Freedom of Speech and Press: Exceptions to the First Amendment,” http://www.fas.org/irp/crs/95-815.pdf
Obscenity and Pornography are not the same.
Obscenity can only be decided by a court (judge and/or jury). The test is whether:
an average person, applying contemporary community standards, would find
that the material appeals to the prurient interest in sex;
that it depicts or describes certain sexual acts defined in state law in a patently offensive way; and
that a reasonable person (not community standards) would find that the material lacks serious literary, artistic, political or scientific value. All three elements must be present.
ALA OIF. Intellectual Freedom Q & A. http://www.ala.org/ala/oif/basics/intellectual.cfm
Harmful to Minors
Some constitutionally protected materials available to adults may be prohibited to minors.
INDIANA CODE: Title 35, Article 49. http://www.ilfonline.org/IFC/inlaw/obscenity.htm
Child pornography
Child pornography has no constitutional protection – because its production involves children not content per se..
3. Concept of Public Forum
Traditional Public Forum – e.g. town square, city sidewalk.
Designated Public Forum – designated by government for expressive activity
Limited Public Forum – designated for a particular expressive activity
Non-Public Forum – e.g. military base, prison
4. Library as Designated Public Forum
Public libraries are designated public forums open to the public for receipt of the information.
This is the legal link between libraries and freedom of speech, a free press, and the right to receive information.
Public libraries may enforce reasonable rules governing non-expressive activities to facilitate their mission.
Time, place and manner restrictions are acceptable – if they are content neutral.
Kreimer v. Bureau of Police, 958 F.2d 1242, 1259 (3d Cir. 1992)
Wayfield v. Town of Tisbury, 925 F. Supp. 880, 884-85 (D. Mass. 1996)
Brinkmeier v. City of Freeport, 1993 U.S. Dist. Lexis 9255, *10 (N.D. Ill. July 2, 1993)
People v. Taylor, 630 N.Y.S. 2d 625, 164 Misc. 2d 868 (N.Y. Sup.Ct. 1995)
Neinast v. Board of Trustees, 190 F. Supp. 2d 1040 (S.D. Ohio 2002)
Armstrong v. D.C. Public Library, 154 F. Supp. 2d 67, 75 (D.D.C. 2001)
Libraries may not remove or restrict access to their materials based solely on their content.
Board of Education v. Pico, 457 U.s. 853, 867 (1982)
Case v. Unified School Dist., 908 F. Supp. 864 (D. Kan. 1995).
Sund v. City of Wichita Fall, 121 F. Supp. 2d 530 (N.D. Tex. 2000)
Billy Ray Counts, et al. V. Cedarville School Dist., Civ. No. 02-2155 (W.D. Ark. 2003)
Miami-Dade County School Board, et al v. ACLU of Florida, Inc. et al., Case No. 06-14633
(appeal pending, U.S. 11th Circuit Court of Appeals)
5. Specific Issues
A. Internet – CIPA
CIPA only requires filters if you are taking federal funds.
Our facial challenge failed. But, part of the Supreme Court ruling affirming CIPA assumed filters could and would be removed on request by an adult.
An as applied challenge is now in court in Washington state.
B. Confidentiality and Privacy
C & P are not explicitly mentioned in the U.S. Constitution
C & P are implied as necessary for the effective asserting of other rights, e.g. chilling effect
Indiana is permissive. User records are confidential if and only if a library board adopts such a policy.
http://www.ilfonline.org/IFC/inlaw/confidentiality.htm
USA PATRIOT ACT: Warrants, Subpoenas and National Security Letters (NSLs)
Secret, virtually (though not technically) permanent, of unknown extent (wide spread?) with lower standard (changed from probable cause to related to a current ongoing terrorism investigation)
Upcoming: A national conversation on privacy (think Banned Books Week type event)
C. Meeting Rooms, Exhibits and Literature Distribution
Remember, libraries are designated public forums and may further designate space as limited public forums, e.g. for use for public meetings, exhibits or literature distribution.
Only time, place and manner not content restrictions are constitutional.
The special case of worship.
Recent ruling applied only to 9th U.S. Circuit (West Coast) and did not require a ban. It only allowed it.
Best (and safest) practice: Apply only time, place and manner restrictions.
http://blogs.ala.org/oif.php?blog=28&page=1&paged=4
D. Children and Youth
Minors have similar rights to adults in public libraries. Exception: materials deemed harmful to minors
School media centers are not classrooms. Students retain more rights in media centers than in classrooms.
E. Labeling
Labeling systems (e.g. MMPA) are voluntary and may not be enforced by government bodies..
Libraries inherently label by organizing materials. Intent and Result: prejudicial or descriptive?
F. Employee Speech, Harassment, Discrimination, Etc.
Often determined by county and city ordinances. See Conflict Management for Libraries below.
6. Conclusion: Public libraries as government bodies
A. Write policies so they may be applied objectively.
B. Enforce them consistently.
C. Provide for an appeals mechanism – even if informal.
D. Balance majority and minority rights.
E. Avoid arbitrary distinctions among individuals and classes of individuals.
F. Have your policies adopted officially (Remember, Indiana’s open meetings statute.)
G. Follow your policies exactly.
Recommended Resources:
American Library Association. Office for Intellectual Freedom. Intellectual Freedom Manual. Chicago: American Library Association, 2006.
American Library Association. Office for Intellectual Freedom. http://www.ala.org/template.cfm?section=oif
Doyle, Robert P. Banned Books: 2007 Resource Book. Chicago: American Library Association, 2007.
Indiana Library Federation. Intellectual Freedom Committee. http://www.ilfonline.org/IFC/ifmanual.htm
Minow, Mary & Lipinski, Tomas. The Library’s Legal Answer Book. Chicago: American Library Association, 2003.
Montgomery, Jack G. and Cook, Eleanor I. Conflict Management for Libraries: Strategies of a Positive, Productive Workplace. Chicago: American Library Association, 2005.
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This outline is based upon handouts distributed at the Law For Librarians workshop sponsored by ALA’s Office for Intellectual Freedom, Chicago, IL, April 3-6, 2006 and by Deborah Caldwell Stone at the ILF Intellectual Freedom Committee’s Law for Indiana Librarians sessions, ILF Annual Conference, Indianapolis, IN, November 14, 2007.
J. Douglas Archer, Chair, ILF IFC, Reference and Peace Studies Librarian,
109 Hesburgh Library, University of Notre Dame Notre Dame, IN 46556 – archer.1@nd.edu – www.nd.edu/~jarcher