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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. - PowerPoint PPT Presentation
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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 Unpublished .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