Transcript SOCIAL MEDIA, LIBRARY MEETING ROOMS, AND THE FIRST AMENDMENT. John Giacomantonio, Rising Third-Year Law Student at Indiana University Maurer School of Law and Summer.

SOCIAL MEDIA, LIBRARY
MEETING ROOMS, AND THE
FIRST AMENDMENT.
John Giacomantonio, Rising Third-Year Law Student at Indiana
University Maurer School of Law and Summer Legal Intern at the
Indiana State Library
This presentation is legal information
NOT legal advice.
A Word of Caution
• I am a law student intern, not a lawyer.
• That said, this presentation is to provide legal
information NOT legal advice.
• If you have questions about how the law applies to
your specific factual situation, discuss this with your
lawyer.
• I will be happy to clarify points that I make in the
presentation, but I cannot answer questions about
facts specific to your library.
What will be covered?
• Overview of the first amendment
• Brief discussion of “forum analysis”
• Social Media
• Library Meeting Room Policies
• Library Bulletin Board/Display Policies
The First Amendment
A Brief Overview
First Amendment: Basics
• 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.
–
http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
Protected Speech
• The first amendment, as courts interpret it, covers a
broad array of speech ranging from the sacred to the
profane.
• Courts are also concerned with vague or overbroad
laws and policies that restrict speech.
• Even though the amendment says, “Congress shall
make no law” the courts have acknowledged that not
all speech is protected by the first amendment.
Does the first amendment protect all
speech?
• “There are certain well defined and narrowly
limited classes of speech . . . .”
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The lewd and obscene
The libelous
Insulting or fighting words
Those that inflict injury or tend to incite an immediate breach
of the peace.
• Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942).
• Some laws that restrict speech are allowable.
• Courts often refer to these categories as “unprotected”
and are more receptive to government regulations.
Unprotected Speech
• Examples include:
• Child Pornography – Call the Police
• A range of federal and state statutes outlaw this.
–
To view some of the federal laws prohibiting child pornography see,
http://www.justice.gov/criminal/ceos/citizensguide/citizensguide_porn.html
• Obscenity – This is a very narrow category
• Miller v. California established a three-part definition of
obscenity. (Indiana adopts a similar formulation at IC 35-49-2-1).
– Obscenity is not the same thing as nudity.
• Material Harmful to Minors
• Federal law prohibits this in a variety of sections within the U.S.
Code. State law does as well.
–
To view some of the federal laws prohibiting obscenity and material harmful to minors see,
http://www.justice.gov/criminal/ceos/citizensguide/citizensguide_obscenity.html
Unprotected Speech
• Child Pornography: 18 USC 2256(8) (defining child pornography)
other sections within that title criminalize the means of accessing, producing, or
distributing child pornography, obscenity, and obscene depictions of children. See
also, Ferber v. New York 458 U.S. 747 (1982). At the State level, I.C. 35-42-4-4
criminalizes child pornography.
• Obscenity: Miller v. California, 413 U.S. 15, 24 (1973) (defining a threepart obscenity test that asks “(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 the applicable state
law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political or scientific value.”
• Material Harmful to Minors:
At the federal level Congress has
enacted legislation to prevent minors from exposure to obscene or harmful
materials on the internet, see 47 U.S.C. 223(d) and 47 U.S.C. 231. see I.C. 35-492-2.
Forum Analysis
Protecting speech by location
Does where you speak matter?
• Traditional Public Forum
– Any regulation must be content neutral and viewpoint neutral.
• Designated Public Forum
– Government must have a an important interest in regulating the speech and
it must be both subject matter and viewpoint neutral
• Limited Public Forum
– Restriction must be reasonable in light of the purpose served by the forum
and be viewpoint neutral.
• Nonpublic Forum
– Government may regulate speech if the regulation is reasonable and
viewpoint neutral.

For an outline of forum doctrine see http://www.law.cornell.edu/wex/forums
Traditional Public Forums
• Content-based restrictions are allowed if they are
necessary to a compelling state interest and are
narrowly tailored for that purpose.
• Examples include streets and parks.
• But . . . a Supreme Court case said that sidewalks
around a post office – because they were intended for
customer traffic – were not a traditional public forum.
See US v. Kokinda, 497 US 720, 727-28 (1990) (Justice
Kennedy, however, thought it was not necessary to
decide whether the sidewalk was a nonpublic forum
497 US 720, 738).
Designated Public Forum
• These are forums that the government opens to
expressive activity
• Examples include university buildings, municipal
auditoriums, and school-board meetings.
• An example of a designated public forum is a State
university opening its facilities to registered student
groups. If the university did so, it cannot discriminate
against student groups on the basis of content.
Widmar v. Vincent 454 US 263 (1981).
Limited Public Forum
• Forums opened for specific groups or for discussion of specific
topics.
• Very tricky category.
• A recent court decision has stated it this way: “Governmental
entities establish limited public forums by opening property
‘limited to use by certain groups or dedicated solely to the
discussion of certain subjects’ . . . in such a forum, a
governmental entity may impose restrictions on speech that are
reasonable and viewpoint neutral.”
– Christian Legal Society v. Martinez 130 S. Ct, 2971, 2984 (2010).
Nonpublic Forum
• “In addition to time, place, and manner regulations,
the State may reserve the forum for its intended
purposes, communicative or otherwise, as long as the
regulation on speech is reasonable and not an effort to
suppress expression merely because public officials
oppose the speaker's view.” Perry Educator’s
Association v. Perry Local Educator’s Association, 460
U.S. 37, 46 (1983).
• No viewpoint discrimination but overall the
government has more latitude to regulate speech in
this category.
Social Media
Speech on the Internet
Social Media
• These tools are great for interaction, dialogue, and
outreach with patrons, but…
• Does a Facebook Wall qualify as a public forum?
Social Media
• This is a new area of the law.
• The library’s policy sets out the guidelines for the type
of forum it establishes.
• Not a lot of case law on this issue, but . . .
– A federal court in Hawaii is hearing a case about
comments posted by two users and deleted by the
Honolulu Police Department, ultimately leading to
the ban of the users from the department’s site.
The site advertised itself as an open forum.
Decide whether to allow comments
• Library can choose to allow comments, but if
comments are allowed, it is best to allow both
favorable and unfavorable ones.
• Determine how open (or closed) to make the page.
• Can remove obscene, offensive, or vulgar comments if
the policy provides guidelines for what will be
removed.
– Review Facebook terms of service agreement with a lawyer to
see what types of comments Facebook will allow.
Let’s look at a sample policy
• Library of Congress’ Comment and Posting Policy
available at
http://www.loc.gov/homepage/commentspolicy.html
• “We welcome your participation and comments on the
Library’s blogs and social media.”
– Opening the space for comment
• “Our social media sites are governed by the general
rules of respectful civil discourse.”
• “The Library of Congress does not discriminate
against any views.”
Sample Policy, cont’d
• “We will remove comments that contain abusive,
vulgar, offensive, racist, threatening or harassing
comments, personal attacks of any kind, or offensive
terms that target specific individuals or groups.”
• Explains the types of comments that will be removed.
• Consistent with the statement that “the general rules
of respectful civil discourse” govern the library’s social
media sites.
Sample Policy, cont’d
• “We will remove spam, comments that are clearly offtopic, that promote services or products, or that involve
political campaigning or lobbying.”
• “Clearly off-topic” – should be defined by the purpose
of the Facebook page. If the page is open to general
comments, it might be hard to specify precisely what
would constitute “off-topic.”
– In a “limited forum” comments outside the scope of the page
can be removed.
For Comparison
LOC
•
“We welcome your participation and
comments on the Library’s blogs and
social media . . . the library may monitor
any user-generated content . . . and
reserves the right to remove content for
any reason whatsoever. We will remove
comments that contain abusive, vulgar,
offensive, racist, threatening or harassing
comments, personal attacks of any kind, or
offensive terms that target specific
individuals or groups . . . [w]e will remove
spam, comments that are clearly off-topic,
that promote services or products, or that
involve political campaigning or lobbying.”
State of South Carolina
•
“Offices will submit to the
Communications Director . . . the type of
content to be posted . . . The State
Library will consider carefully whether to
allow comments before launching a social
media initiative. However, if comments
are allowed, user feedback should
remain regardless of whether it is
favorable or unfavorable to the
agency. Comments will be deleted only if
they are offensive, abusive, racially
inflammatory, threatening or clearly off
topic. Comments that endorse a political
candidate, party or commercial product
will be deleted.”
– Available at
http://www.statelibrary.sc.gov/docs/bo
ard/201109_com_scsl_social_media_p
olicy.pdf
For Comparison
LOC
•
•
More specific about “offensive
comments” – they have to be
targeted.
“Welcomes participation” – could
create a forum otherwise default
is nonpublic forum
South Carolina
•
•
•
Includes language about
favorable/unfavorable comments.
“Type of content to be posted’ –
might suggest a limited forum.
No mention of “off-topic”
comments.
Library Meeting Rooms
Meeting Rooms
• Library can choose to designate rooms for specific
topics of discussion or for particular groups.
• Consistently enforced policies with appeals process for
a group that has been rejected will help.
• Require permission before entry.
• Content-Neutral Restrictions are ok (i.e. noise level,
time and frequency of use)
Who can use a meeting room?
• Library policy should spell out which groups can have
access.
• Library can have priority for its own programming
before choosing to allow community groups to
participate
• Libraries can limit access to community groups with
educational, cultural, or charitable goals.
– Watch out about not discriminating on the basis of viewpoint
within these categories.
What about religious, political, or
commercial groups?
• Religious groups can use the rooms.
• A library cannot exclude a religious group to avoid an
establishment clause problem.
– Talk to your lawyer for specific questions about use of library
rooms by religious groups.
• Libraries can specify in policies that meeting rooms
can’t be used by groups hosting partisan political
meetings but not political meetings generally.
Commercial Groups or Solicitors
• Some policies restrict use to non-profit groups.
• This gives the library a basis to limit use by particular
speakers. (For example, for-profit groups.)
Disclaimer Language
• “The fact that a group is permitted to use a library
meeting room does not in any way constitute
endorsement of the group's policies or beliefs by the
Library. No advertisements or announcements
implying such endorsements will be permitted. The
Library Board may consider exceptions to any of these
policies.”
Let’s take a look at a case
• Pfeifer v. City of West Allis 91 F.Supp.2d 1253 (E.D.
Wis. 2000).
• This is a case that arose in our circuit.
• It gives an example of how the court applied “forum
analysis” to a public library’s meeting room policy.
Pfeifer v. City of West Allis
• Facts: Public library had a meeting room (the
Constitution Room) that it used primarily for its own
programming but also for “[p]rograms open to the
public which are sponsored by local non-profit
organizations.” This was done to “encourage wide
availability of the room to local community
organizations” but politically partisan meetings,
religious services or instructions, commercial sales or
presentations, and regular meetings of clubs or
organizations were excluded. The library had a
process for groups that wanted to reserve the room.
Pfeifer v. City of West Allis
• Patron had a nonprofit Christian instruction
organization to “educate the public” about
creationism. The workshop had a religious content,
but he also used science textbooks. The library
director denied patron’s application to use the meeting
room for a “creation science workshop” that would be
“open to the public” because it involved “religious
instruction.”
Pfeifer v. City of West Allis
• Court said: Library policy was unconstitutional and
engaged in a “public forum analysis.”
• Court said the “Constitution Room” was the relevant
forum, but it was relevant to the analysis that the
room was in a public library.
• Library mission was to serve the local community and
promote availability of the room to local community
organizations. The court found that the Constitution
Room was “a forum for expressive activity by
nonprofit organizations serving the West Allis
community.”
Pfeifer v. City of West Allis
• Because the library “aspire[d] to provide information
on virtually all subjects . . . [the] goal suggest[ed] a
kinship with a traditional public forum.”
• Exclusion of “regular meetings” was a content-neutral
regulation consistent with the library’s goal of
“encouraging wide use of the room.”
• Exclusion of commercial sales was narrow because the
library limited use to “nonprofit organizations.”
Pfeifer v. City of West Allis
• Court found that the Constitution Room was a
designated public forum.
• Regulations have to be content-neutral.
• Very fact-specific inquiry
Displays/Bulletin Boards
Library Displays
• Libraries can choose to open areas for public displays
or exhibits by community groups or for specific
purposes or topics.
• They can also choose to restrict use of the display for
their own programming.
• Another option is to prioritize the space for their own
programming even when they allow other groups to
use it.
• A display within a library lobby may fall somewhere
between a limited forum and a nonpublic forum.
Other Court Cases
• Brown v. Louisiana, 383 US 131, 142 (1966). (A
library is a “place dedicated to quiet, to knowledge,
and to beauty”).
• Kreimer v. Bureau of Police, 958 F.2d 1242, 1259 (3rd
Cir. 1992) (Explaining that a library was a limited
forum).
• Faith Center Church Evangelistic Ministries v. Glover,
462 F.3d 1194 (9th Cir. 2007). (Library could prohibit
religious worship but not religious speech).
• Citizens for Community Values v. Upper Arlington Bd.
of Trustees, 2008 WL 3843579 (August 14, 2008)
(determining the “inherent elements of a religious
service” [is] “unlawful viewpoint discrimination”).
Summary
• This is a complicated area of law lacking in clear-cut
answers.
• Policies that attempt to regulate speech sometimes
fare poorly if they are litigated.
• Spell out clear policies stating the type of comments
that can be removed from a Facebook page.
Summary
• Consider limiting discussion to a specific topic and
providing for removal of comments that are off topic.
• Establishing the scope of expression the forum
permits, is helpful for meeting rooms, display case,
and bulletin board policies.
• Consistently enforce policies and steer clear of
viewpoint-based restrictions.
Conclusion
• You can contact me at
[email protected]
– I will only be at ISL until July 31.
• Thank you for attending today.
– Remember this presentation is for legal information NOT
legal advice. I cannot give legal advice because it would be
illegal for me to do so.