Writing a Library Behavior Code An webinar Mary Minow J.D., A.M.L.S. December 10, 2009 Legal Disclaimer Legal information Not legal advice!
Download ReportTranscript Writing a Library Behavior Code An webinar Mary Minow J.D., A.M.L.S. December 10, 2009 Legal Disclaimer Legal information Not legal advice!
Writing a Library Behavior Code An webinar
Mary Minow J.D., A.M.L.S.
December 10, 2009
Legal Disclaimer
Legal information
Not
legal advice!
Agenda
F
irst Amendment tread carefully
E
qual Enforcement
N
otice
D
ue Process (Appeals)
FEND off lawsuits
Agenda
F
ree Speech tread carefully
E
qual Enforcement
N
otice
D
ue Process (Appeals) Emerging Issues Patrons 2.0
Free Speech or Behavior?
Library can set behavior rules Check with attorney before restricting speech No bare feet is behavior, not 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.
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 Unpublished .
range of responses www.popcenter.org
Breastfeeding Behavior, 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] California Civil Code Sect. 43.3
www.californiabreastfeeding.org/Laws.html
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
Helpful for criteria to close a library
wikis.ala.org/professionaltips/index.php/Pandemic_Planning
Agenda
F
ree Speech tread carefully
E
qual Enforcement
N
otice
D
ue Process (Appeals) Emerging Issues Patrons 2.0
Ensure Procedural Safeguards
May not leave it to “whim of administrator” – objective standards
E
qual Enforcement
N
otice
D
ue Process (appeals)
E
nforced Equally
• 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) 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
F
ree Speech tread carefully
E
qual Enforcement
N
otice
D
ue Process (Appeals) Emerging Issues Patrons 2.0
N
otice to Patrons
–Written, posted –Not vague
“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.
D
ue 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 Due Process
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
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 required
Library wins
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
Agenda
F
ree Speech tread carefully
E
qual Enforcement
N
otice
D
ue Process (Appeals) Emerging Issues Patrons 2.0
Patron Speech 2.0
bradfordcountylibrary.blogspot.com/
Free Speech, Community Standards and Defamation
First Amendment triggered when Government suppresses 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).
PROTECTED Internet Speech under Umbrella of First Amendment
Speech that is…
Violent Disgusting Profane Hateful Indecent Inappropriate May lead to illegal behavior as well as Beautiful Poetic
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
Using third parties (flickr, bibliocommons, youtube)
opl.bibliocommons.com
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
If one direction, simpler, just publisher liability
wiki.creativecommons.org/Podcasting_Legal_Guide
Summary
F
ree Speech tread carefully
E
qual Enforcement
N
otice
D
ue Process (Appeals) Emerging Issues Patrons 2.0