Constitutional Principles and American Publicly Funded Libraries

The American public library is the only government agency with a core mission based on the values of both individual rights and popular government. The courts have held that there is a constitutional right to receive information. The public library, by providing free access to information on all subjects, from all points of view, to all people who live in the geographic area served by the library, is the major source for the information and knowledge necessary for a viable democracy. At the same time individual rights are protected by the public library since each library user exercises free choice in the selection of information for her or his own use.

What is the public library's legal status concerning freedom of speech?

The courts have defined a public forum as 1) a place that has been traditionally available for public assembly, speech and discussion or 2) a place that government has designated by policy and practice for free speech purposes. This means that a public library with a Mission Statement to provide access to reading materials and information on all subjects, from all points of view has the legal effect of designating the library as a public forum for access to information. In addition, the policies of many public libraries on public use of meeting rooms, bulletin boards and literature distribution areas expand the definition of the Library as a public forum to include the exchange of information. Libraries in publicly funded schools, colleges, universities and special libraries are a public fora for the population that they serve.

Court decisions concerning libraries as designated limited public forums for the expressive activities identified in their policies include:

1. Board of Education v. Pico, 457 U.S. 853 (1982). Students challenged the School Board’s removal of books from the school library. The Court held 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”(at 861) and “If petitioners intended by their removal decision to deny” students “access to ideas with which petitioners disagreed ... then petitioners have exercised their discretion in violation of the Constitution” (at 871).

2. Concerned Women for America v. Lafayette County (883 F.2d 32 (5th Cir. 1989)), found that the Oxford, Mississippi Public Library had created a public forum when it made its meeting room available to community groups whether or not the meetings were library sponsored or library related.

3. Kreimer v. Morristown (958 F.2d 1242 (3rd Cir. 1992)), found that the Morristown, New Jersey Public Library had been designated as a limited public forum for the "expressive activity of communication of the written word".

4. Mainstream Loudoun v. Loudoun County Board of Trustees (Memorandum Opinion in the U.S. District Court for the Eastern District of Virginia. Case No. 97-2049-A (November 23, 1998)),

1

found that when it authorized its public library system, Loudoun County, through its library board, "intended to designate the Loudoun County libraries as public fora for the limited purposes of the expressive activities they provide, including the receipt and communication of information through the Internet". (p.22-23).

What are the implications of being a public forum for public library policies and practices?

 The library may not limit access to constitutionally protected speech. This includes information available via the Internet. In ALA v. U.S. Department of Justice and Reno v. ACLU (U.S. 117 S.Ct. 2329 (1997)) the court ruled that speech on the Internet is entitled to the highest level of First Amendment protection, similar to the protection the Court gives to books and newspapers.

 Limitations may be placed on the time, place or manner of access to library resources, services or facilities. The limitation must be necessary in order to achieve the library’s mission and there must be no other way to meet that need without restricting speech (least restrictive means).

 Limitations must be viewpoint neutral. One of the most important First Amendment principles is that government may not prohibit expression because of the viewpoint expressed. Once a category of information is determined to be within the library's mission, the library cannot refuse to provide access based solely on the viewpoint expressed, no matter how offensive that viewpoint might be to a majority of the members of the community.

 Any restrictions must be narrowly tailored (not overbroad) to meet the compelling government need. For example a number of state laws limiting access to Internet content in order to protect children have been found by the courts to be unconstitutional because there would have been no way to implement the laws without also restricting adult access to constitutionally protected speech.

What categories of speech are not protected by the U.S. Constitution?

Categories of speech that judicial decisions have determined are not protected by the U.S. Constitution include obscenity, child pornography and speech that it "harmful to minors". It is important to understand the process by which individual printed or visual materials are determined to fall within these categories.

1. Obscene Speech. In 1973, the U.S. Supreme Court outlined basic guidelines for the trier of fact to use to determine if a specific work is legally obscene. The guidelines are: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by

2 the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (Miller v. California 413 U.S.15 (1973)).

Important Factors about the legal definition of obscene speech, based on the Miller Decision:

● only sexually explicit speech can be found to be obscene. "We now confine the permissible scope of such regulation to works which depict or describe sexual conduct”.

● (Brockett v. Spokane Arcade 472 U.S. 491, 1985) clarified that the definition of "prurient" means a shameful or morbid interest in sex. Including "lust" in the definition was unconstitutionally overbroad in that it reached constitutionally protected material that merely stimulated normal sexual responses.

● only a trier of fact (jury or judge) has the legal authority to determine community standards and to establish if the other two prongs of the Miller test also apply to a particular work, thus making it unprotected by the Constitution.

● there is a presumption of innocence. “In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.”

● while it is illegal to distribute a work that has been found obscene, it is not illegal to possess it.

2. Child Pornography. In 1982 the Court upheld a challenge to a New York law that prohibited the distribution of photographs and films depicting children engaged in sexual conduct. As a result of this decision, child pornography, regardless of whether it is obscene, is not protected by the First Amendment because the production of such materials would not be possible without the abuse of children. (New York v. Ferber 458 U.S. 747 1982). For the same reason (involving abuse of children), the possession of child pornography is also illegal.

In 1996 Congress amended the federal child pornography act expanding the definition of child pornography to include materials that appear to be a depiction of a minor engaged in sexual conduct (Child Pornography Protection Act, P.L. 104-208). This included computer generated images and adults portrayed as minors. This expansion of the definition of child pornography was found to be unconstitutional by the U. S. Supreme Court (Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002)).

Congress responded by enacting the “Prosecutorial Remedies and Other Tools to End Exploitation of Children Act (PROTECT), which prohibits any virtual depiction of minors engaged in sexual acts. Computer creation and the use of adults to depict minors are affirmative defenses.

3

3. Harmful to Minors. Much of the controversy surrounding access to library materials and to the Internet concerns the legal status of children. Many people believe that minors do not have rights independent of their parents. In fact, the Supreme Court has long recognized that minors do have rights under the First Amendment. However, the Court has also ruled that state legislation may specify some materials that are protected for adults as "obscene" for minors. The Children’s Internet Protection Act (47 USC 254 (h) (6)) is the only federal law establishing a category of materials as “harmful to minors”

Many states have enacted "harmful to minors" statutes. In some states the State Supreme Court has held such laws to be unconstitutional. Not all states revise their statutes to reflect judicial rulings so it is important to check both law and court decisions.

In 2000 the Oregon Court of Appeals ruled that the prohibition against furnishing minors materials that depict sexual conduct or sexual excitement (ORS 167.065) "applies to some forms of constitutionally protected expression and therefore is overbroad" (State v. Maynard, 168 OR App 188, 5P3d 1142 (2000) The Oregon Supreme Court denied review of this decision).

Is there a constitutional way for government to balance the protection of free speech rights and concerns for children?

The courts continue to struggle with defining how traditional free speech principles apply to new technology, particularly concerning children. A Supreme Court decision in 2000 suggests ways that new technology can be used to empower parents to control their own children's access to materials without removing the family's right to decide how to raise their children or limiting the speech rights of adults (U.S. v. Playboy Entertainment (98-1682 May 22, 2000)). In this case the Court found Section 505 of the Communications Decency Act unconstitutional because under the provisions of Section 504 of that act adult entertainment cable content providers 1) make available a free technological means for parents to block access to their signals, and 2) provide notice of the availability of that technology and how to acquire it. The court ruled that these measures meet the standard of least restrictive means to address concerns about children and if parents do not take advantage of the available technology it is not appropriate for government to assume the role of parent.

What about violent speech and minors?

Violent speech is protected speech unless it is 1) directed to inciting or producing imminent lawless action and 2) likely to incite or produce such action (Brandenburg v. Ohio, 365 U.S. 444 (1969)).

A number of states and local entities have recently adopted laws or ordinances restricting minors’ access to electronic games with violent content. Challenges have been filed,

4 ruled upon or are pending for each of these statutes. As of this writing none have been upheld by the courts.

A 2001 decision in the Seventh Circuit Court of Appeals is a good example of why these types of laws have repeatedly been found to be unconstitutional. Representatives of the video game industry filed suit to enjoin the enforcement of an Indianapolis ordinance that would have banned minors from playing violent and sexually explicit arcade video games without parental permission. On March 23,2001, a three judge panel of the Seventh Circuit Court of Appeals reversed and remanded a lower court decision with instructions to grant a preliminary injunction in AAMA v. Kendrick (244 F.3d 572 (7th Cir. 2001), cert. den. 534 US 994 (2001)). Judge Posner dismissed the contention that because the games are interactive they should be treated differently, and reaffirmed that video games are speech. Judge Posner’s defense of minors’ First Amendment rights is very significant for libraries:

Now that eighteen-year-olds have the right to vote, it is obvious that they must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise. And since an eighteen-year- old's right to vote is a right personal to him rather than a right to be exercised on his behalf by his parents, the right of parents to enlist the aid of the state to shield their children from ideas of which the parents disapprove cannot be plenary either. People are unlikely to become well-functioning, independent minded adults and responsible citizens if they are raised in an intellectual bubble.

Posner further observed that:

[shielding] children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it. Maybe video games are different. They are, after all, interactive. But this point is superficial, in fact erroneous. All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive; the better it is, the more interactive.

What about inadvertent viewing?

Erznoznik v. City of Jacksonville (422 US 205 (1975)) provides guidance for issues related to inadvertent viewing of potentially offensive materials by children and adults in a public place. This case involved a drive-in movie theater with a screen that was visible from the street.

“The plain, if at times disquieting, truth is that in our pluralistic society, constantly

5 proliferating new and ingenious forms of expression, we are inescapably captive audiences for many purposes… Much that we encounter offends our esthetic, if not our political and moral, sensibilities. Nevertheless, the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, absent … narrow circumstances … the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.”

What about the Children’s Internet Protection Act?

The legal impact of a plurality decision is determined by the points upon which a majority of the justices agree. In the CIPA 6 – 3 plurality decision, there was majority agreement on the two points:

1. Filtering software blocks access to a significant amount of constitutionally protected speech (Kennedy, Breyer, Stevens, Souter and Ginsburg).

2. The problem of “overblocking” by filtering software does not impose a requirement that the library block access to constitutionally protected speech since library staff can unblock specific web sites or, for adults, completely disable the filter without significant delay to library patrons and without the need for the patron to provide a reason for the request. (Rehnquist, O’Connor, Scalia, Thomas, Kennedy and Breyer).

These 6 justices reached this conclusion based on the Solicitor General’s “binding admission” in oral argument that this is how the Government interprets the disabling provision of the statute.

Since there would not have been enough votes to uphold CIPA without the Solicitor General’s statement the decision establishes a guideline for libraries concerning what they have to do in order to not violate the constitutional rights of patrons.

The importance of following this guideline was made very clear in Kennedy’s concurring opinion that: “if some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user’s election to view constitutionally protected Internet material is burdened in some other substantial way, that would be subject for an as-applied challenge…”

To protect the rights of patrons and to minimize the possibility of a legal challenge a library should:

1) Choose the lowest default level of filtering possible, to minimize the amount of protected speech that will be blocked

2) Develop a procedure for disabling the filter for an adult that does not create an unreasonable burden

6

3) Develop a procedure by which any patron – adult or minor may request that an inappropriately blocked site be unblocked.

4) Notify patrons of their right to request disabling or unblocking.

In addition: 5) There is nothing in the law that prohibits offering voluntary choices of greater filtering levels. This offers library patrons some additional control over their Internet access

If you do these things well, the impact on the rights of adults concerning their own access to the Internet will be minimized.

However, the potentially adverse impact on minors, especially older teens will be greater because library staff cannot ever disable the filter for a person under the age of 17 –only unblock specific sites. If you have the right software if will not be difficult to disable the filter in a timely fashion. Unblocking a site in a timely fashion will be much more difficult, if not impossible.

Unfortunately, the CIPA decision negatively impacts the rights of patrons in at least two additional ways:

1) Parents loose some of their ability to control their own children’s access since they cannot request unfiltered access for their child.

2) Local communities that depend upon the revenue from the funding programs covered by CIPA are forced to accept an Internet Policy developed by Congress, not by their local governing body with community participation based on both the U.S. and state constitutions.

Is there a liability for offering unrestricted access to the Internet? Kathleen R. et. al. v. City of Livermore (A086349 Alameda County Superior Ct. No. V-015266-4) Filed 2/6/01: “In this case we hold that a city is not subject to suit for damages or an injunction for offering unrestricted access to the Internet through computers at a public library.” – This ruling applies only in California. However, the court’s conclusions and the reasoning are informative.

Is there a civil liability for an alleged hostile work environment related to patron Internet use? On May 24, 2001, the Equal Employment Opportunity Commission (EEOC), released a finding of probable cause that twelve Minneapolis Public Library employees were subjected to a sexually hostile work environment. Mediation between the parties was not successful. The EEOC finding was based on the particular employment context of the Minneapolis Public Library and the specific allegations of Minneapolis Public Library

7 staff. It does not automatically apply to any library providing unfiltered Internet access. Even a final judicial determination based on the facts of this case cannot be binding on another library. The Civil Rights Division of the Department of Justice declined to pursue the suit on behalf of the librarians. The complaint alleged the claim of hostile work environment was based on seeing images on the Internet accessed by patrons as well as targeted sexual behavior. The case was settled in August, 2003 for $435,000 dollars (apparently within the limits of the library’s insurance policy). The library also agreed to implement a centralized location for Internet printing, review Internet filtering and enforce its current Internet Use Policy.

Questions that a library should consider: 1. Does your hiring process inform your employees that they will be working in a public forum, and what that means?

2. Have you taken affirmative action to: a. minimize inadvertent viewing by staff and employees by the placement of terminals, privacy screens, recessed monitors, etc.; b. utilize software that reboots the computer and clears the cache & history when a patron has completed an allotted time on the Internet; c. configure printing in a way that minimizes inadvertent access by staff or patrons to another patron's printing? d. inform patrons that access to illegal materials is prohibited?

3. Do your policies and procedures require staff to monitor the sites patrons access or to monitor time limitations in a way that may unnecessarily lead to staff inadvertent viewing computer screens?

4. Have you developed guidelines for what staff should do if they encounter patrons accessing materials that are clearly child pornography?

5. Does your policy make it violation of rules of conduct when patrons deliberately harass library employees?

Why is it important for libraries to protect the confidentiality and privacy of library users?

The First Amendment and the guarantees of freedom of speech in state constitutions require that the corresponding right to receive information be free from fear of intrusion, intimidation, or reprisal.

All states and the District of Columbia have either laws or attorney generals opinions protecting the confidentiality of library records. Most state laws governing confidentiality and library records are exemptions to public records requirements.

8

For more information on privacy and confidentiality in libraries see: Morgan, Candace, Deborah Caldwell-Stone and Daniel Mach. “Privacy and Confidentiality in Libraries” in American Library Association. Office for Intellectual Freedom. Intellectual Freedom Manual, Seventh Edition. Chicago: American Library Association, 2006, pp. 402 – 413.

United States Constitution

First Amendment (1791) 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. Notes: * Initially the First Amendment applied only to the federal government: (Congress shall make no law). The 14th extended its coverage to states and public libraries are creatures of the state. * The courts have ruled that the First Amendment also applies to the distribution & receipt of literature and information (Schneider v. State (308 U.S. 147 (1939)). * Speech on the Internet is "entitled to the highest level of First Amendment protection, similar to the protection the Court gives to books and newspapers. ALA v. Dept. of Justice and Reno v. ACLU (U.S. 117 S.Ct. 2329 (1997)).

Fourth Amendment (1791) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Note: Privacy is not mentioned in the U.S. Constitution. However, this amendment has been interpreted to protect privacy. Modern Fourth Amendment law relies heavily on Katz v. United States, 389 U.S. 347 (1967) in which the Court held that the Fourth amendment “protects people, not places” and what a person “seeks to preserve as private, even in area accessible to the public, may be constitutionally protected”. The two-part test most often used by the Court to determine whether a right to privacy exists was expressed by Justice Harlan in his concurrence to Katz is that: 1) a person has “exhibited an actual (subjective) expectation of privacy and 2) that the expectation is “one that society is prepared to recognize as ‘reasonable.’ “

In the Katz decision the Court also reiterated that “the person’s general right to privacy – his right to be let alone by other people – is like the protection of his property and of his very life, left largely to the law of the individual states”.

9

Fifth Amendment (1791) no person … (shall) be deprived of life, liberty or property without due process of law -- (liberty includes First Amendment Rights)

Ninth Amendment (1791) The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Tenth Amendment (1791) The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.

Fourteenth Amendment (1868) All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Note: Liberty as used in this amendment includes First Amendment rights

CONSTITUTION OF THE STATE OF OREGON Article I BILL OF RIGHTS (1859) & 3. Freedom of religious opinion No law shall in any case whatever control the free exercise, and enjoyment of religious opinions, or interfere with the rights of conscience.

& 8. Freedom of speech and press No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever, but every person shall be responsible for the abuse of this right.

& 9. Unreasonable searches or seizures. No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

& 20. Equality of privileges and immunities of citizens. No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.

& 26. Assemblages of people; instruction of representatives; application to legislature.. No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; or from applying to the Legislature for redress of greviances (sic).

10

Note: The Oregon Supreme Court has found that the Oregon Constitution provides greater protection of individual liberties than the U.S. Constitution. For example obscenity is not illegal in Oregon. Oregon voters have rejected at least three recent attempts to amend article 1 & 8 of the state constitution.

Public records provisions from ORS relevant to library records

192.420 Right to inspect public records; notice to public body attorney. (1) Every person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided by ORS 192.501 to 192.505.

192.502 Other public records exempt from disclosure. The following public records are exempt from disclosure under ORS 192.410 to 192.505: (4) Information submitted to a public body in confidence and not otherwise required by law to be submitted, where such information should reasonably be considered confidential, the public body has obliged itself in good faith not to disclose the information, and when the public interest would suffer by the disclosure.

(22) The records of a library, including circulation records, showing use of specific library material by a named person or consisting of the name of a library patron together with the address or telephone number, or both, of the patron.

192.505 Exempt and nonexempt public record to be separated. If any public record contains material which is not exempt under ORS 192.501 and 192.502, as well as material which is exempt from disclosure, the public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination. [1987 c.764 §4 (enacted in lieu of 192.500)]

Court Decision Five-part test for determining whether information supplied to agency in confidence is exempt from disclosure is whether: 1) information was submitted voluntarily 2) agency can show that nature of information is such that information should be kept confidential 3) agency has undertaken good faith obligation to maintain confidentiality 4) disclosure might harm public interest and 5) information was actually submitted in confidence. Gray v. Salem-Keizer School District, 139 Or App 556, 912 P2d 938 (1996), Sup Ct review denied

Note: I am not a lawyer. Your library should have a lawyer with background in constitutional issues related to libraries.

You are free to use the information in this document for non-commercial educational and informational purposes.

Candace Morgan (503) 245-3868 (503) 701-2316 (cell) [email protected]

Last revised 10/16/06

11