mary minow j.d., a.m.l.s

Mary Minow J.D., A.M.L.S.

Writing a Library Behavior CodeAn webinar

December 10, 2009

Legal information

Not legal advice!

Legal Disclaimer

Agenda

First Amendment

tread carefully

Equal Enforcement

Notice

Due Process (Appeals)

FEND off lawsuits

Agenda

Free Speech

tread carefully

Equal Enforcement

Notice

Due Process (Appeals)

Emerging IssuesPatrons 2.0

Free Speech or Behavior?

Library can set behavior rules

Check with attorney before restricting speech

Neinast v. Board of Trustees of the Columbus Metro. Library (2006), 165 Ohio App. 3d 211, appeal denied, 109 Ohio St. 3d 1506, 849 N.E.2d 1027.

No bare feet

is

behavior, not speech

Teen bothering others

Too loud?

Teen bothering others

Too loud?

Noise rules OK

… apply equally to all

Teen bothering others

Too many?

Teen bothering others

Too many?

Limits on number at computer OK

… apply equally to all

Teen bothering others

Obnoxious language?

Teen bothering others

Obnoxious language?

Caution! Treading on Free Speech territory

Okay to request civility

… best to focus on sound level

… but new case in Ohio finds not free speech to write offensive note to female patron. Tronsen v. Toledo-Lucas County Public Library, 2008 U.S.

Dist. LEXIS 20359 (N.D. Ohio June 30, 2008. Unpublished .

www.popcenter.org

range of responses

BreastfeedingBehavior, right?

May California library prohibit?

No. California Law Protects Breastfeeding

Notwithstanding any other provision of law, a mother may breastfeed her child in any location, public or private…

[exception in someone else’s home]

www.californiabreastfeeding.org/Laws.html

California Civil Code Sect. 43.3

Man sneezes – H1N1?

Can library tell him to leave? Behavior?

Man sneezes – H1N1?

Can library tell him to leave?

No. Open to all.

Or close library in consultation with public health authorities

Grayson Barber, Attorney blog.librarylaw.com/librarylaw/2009/09/asking-library-users-to-leave-if-they-have-h1n1.html

wikis.ala.org/professionaltips/index.php/Pandemic_Planning

Helpful for criteria to close a library

Agenda

Free Speech

tread carefully

Equal Enforcement

Notice

Due Process (Appeals)

Emerging IssuesPatrons 2.0

Ensure Procedural Safeguards

May not leave it to “whim of administrator” – objective standards

Equal Enforcement

Notice

Due Process (appeals)

U.S. Supreme Court

• Sit-in at Audubon Regional Library (Clinton, LA)

• Violation of state breach of peace law

Supreme Court: Law violated Equal Protection in U.S. Constitution

Brown v Louisiana, 383 U.S. 131 (1966)

Enforced Equally

www.zinasaunders.com/

thehomelessguy.blogspot… I had a back pack and a sleeping bag with me - both nearly brand new and completely out of people's way, a security guard came by with a measuring tape - measured both bags - and declared that their total length exceeded limitations and that I'd have to take them out of the library.

Later that same day, a couple kids with cello cases came rolling into the library, right past the guards, and the guards said nothing to them about their oversized items.

thehomelessguy.blogspot.com Nov 15, 2004

HOMELESS – Treat Equally

Consent Order Settlement Agreement

Patrons with temporary residences treated equally

(had been limited to 2 items)

Doe v. Worcester Public Library, Case No. 06-40133, Dist. MA, Consent Order Dec. 21, 2006

Agenda

Free Speech

tread carefully

Equal Enforcement

Notice

Due Process (Appeals)

Emerging IssuesPatrons 2.0

–Written, posted–Not vague

Notice to Patrons

“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)

How much notice?

• Binders in back room?

• Conduct policies should be posted

• Other policies at point of contact

e.g. meeting room

Sample Notification

Violators will receive a warning from and an opportunity to cease.

Repeat violations may result in suspension of Library privileges.

Appeal requests may be made in writing to the Library Director.

Further appeals may be made to the Library Board.

Due Process (Appeals)

Courts look at

•Liberty and First Amendment interests in using libraries

•Risk of error

•Administrative burden

Bottom Line: Offer appeals

Two hour suspension

Library sued by patron suspended for two hours

Grigsby v. City of Oakland, 2002 U.S. Dist. LEXIS 10621 (N.D. Cal. June 10, 2002).

Two hour suspension

Library sued by patron suspended for two hours

Court: minimal intrusion outweighed by library’s interest in safe and efficient operation

Grigsby v. City of Oakland, 2002 U.S. Dist. LEXIS 10621 (N.D. Cal. June 10, 2002).

How much Due Process?

Woman complained man following her around, staring at her, making her uncomfortable

Banned for two years.

Sued Library over

Doyle v Clark County Public Library, 2007 U.S. Dist. LEXIS 73490 (S.D. Ohio, Oct. 2, 2007.) see also

docs.justia.com/cases/federal/district-courts/ohio/ohsdce/3:2007cv00003/112491/65/0.html

Due Process

Court: Public interest in immediate intervention

No pre-deprivation hearing required - immediate intervention to prevent criminal behavior

Post-deprivation, patron given: immediate notice of charges opportunity to see all evidence, opportunity for hearing with ultimate

decision maker and even right to be represented by counsel

Patron claimed right to confront accusers and right to jury

Court: Not requiredDoyle v Clark County Public Library, 2007 U.S. Dist. LEXIS 73490 (S.D. Ohio, Oct. 2,

2007.) see also docs.justia.com/cases/federal/district-courts/ohio/ohsdce/3:2007cv00003/112491/65/0.ht

ml

Library wins

Agenda

Free Speech

tread carefully

Equal Enforcement

Notice

Due Process (Appeals)

Emerging IssuesPatrons 2.0

Patron Speech 2.0

bradfordcountylibrary.blogspot.com/

Free Speech, Community Standards and Defamation

First Amendment triggered whenGovernmentsuppresses speech based on content or viewpoint

WE ARE THE GOVERNMENT

Gregory S. Weber, Needling the Thread: A Moderator's Guide to Freedom of Speech Limitations on Government Sponsored Web-Based Threaded Discussions, 7 Computer Law Review & Technology Journal 323 (Winter 2004).

Speech that is…

Violent Inappropriate

Disgusting May lead to illegal behavior

Profane as well as

Hateful Beautiful

Indecent Poetic

PROTECTED Internet Speech under Umbrella of First Amendment

Library of Congress blog

This blog is governed by the general rules of respectful civil discourse. You are fully responsible for everything that you post. The content of all comments is released into the public domain unless clearly stated otherwise. The Library of Congress does not control the content posted. Nevertheless, the Library of Congress may monitor any user-generated content as it chooses and reserves the right to remove content for any reason whatever, without consent. Gratuitous links to sites are viewed as spam and may result in removed comments. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on the Library site.

www.loc.gov/blog/

www.tsa.gov/blog/2008/01/comment-policy.html

Library blog as newsletter “Nonpublic forum”

• Library as editor of online newsletter …. Not limited public forum

• One way communication

• Letters to editor

opl.bibliocommons.com

Using third parties (flickr, bibliocommons, youtube)

Free Speech, Community Standards and Defamation

Private individuals and companies may restrict speech

Ugly, mean, icky speech

Section 230 of the Communication Decency Act protects providers from users’ defamatory comments

ix

wiki.creativecommons.org/Podcasting_Legal_Guide

If one direction, simpler, just publisher liability

Summary

Free Speech

tread carefully

Equal Enforcement

Notice

Due Process (Appeals)

Emerging IssuesPatrons 2.0