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Policy Writing The Next Level

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					Policy Writing – The Next Level
Making sure your policies are legally enforceable
Florida Library Directors Conference, Jacksonville, FL
October 12, 2006 10:45 – NOON and 1:15 – 2:30 / October 13, 2006 9:00 – 10:15

Mary Minow, J.D., A.M.L.S. LibraryLaw.com consult@librarylaw.com

Policy Writing – The Next Level www.librarylaw.com/FL2006.ppt
until Nov. 30, 2006

Making sure your policies are legally enforceable
Florida Library Directors Conference, Jacksonville, FL
October 12, 2006 10:45 – NOON and 1:15 – 2:30 / October 13, 2006 9:00 – 10:15

Mary Minow, J.D., A.M.L.S. LibraryLaw.com consult@librarylaw.com

Fending Off Lawsuits
www.librarylaw.com/FL2005.ppt until Nov. 30, 2006

Making sure your policies are legally enforceable
Florida Library Directors Conference, Sarasota, FL October 20, 2005 8am -10am
Mary Minow, J.D., A.M.L.S. LibraryLaw.com consult@librarylaw.com

Legal Disclaimer
• Legal information

• Not legal advice!

FEND off lawsuits
Agenda

First Amendment
tread carefully

Equal Enforcement Notice Due Process (Appeals)

FEND off lawsuits
Specific Cases
Meeting rooms, displays

Behavior – harassment, odor
Note on unattended children

Note on privacy

Legal Framework

Constitution
Federal Law
State Laws
Local laws Library Policies
7

Question is Always
Will Library Policy Win in Court?

Library Rule

Or will Patron win?

Meeting Room Can’t Prohibit Religious Court: Library Policy: Not available for meetings for religious purposes Groups from Meeting Room

Library Rule

Concerned Women for America, v. Lafayette County and Oxford Public Library, 883 F.2d 32 (5th Cir., 1989)

Court: Library Can’t Prohibit Religious Policy: Excludes religious services or Groups from Meeting Room instructions

Library Rule
Now may use for religious services or instructions
Christopher A. PFEIFER, v. City of West Allis, 91 F. Supp. 2d 1253 (E.D. Wisc., 2000).

No Religion PoliciesRight To Same Religious Speakers Knocked Over Access As Everyone Else Like Deck of Cards
X
X X
•2005 Sept 20 Woodland Park Library (CO) settlement

•2002 Mitchell County Public Library (TX)
•2002 Dunedin Public Library (FL) •2001-Escambia County Library (FL)

X

X

•2000 Pine Mountain Regional Library System (GA)

May Not Restrict Religious Speakers - Viewpoint Based
•2005 Sept 20 Woodland Park Library (CO) settlement

•2002 Mitchell County Public Library (TX)
•2002 Dunedin Public Library (FL) •2001-Escambia County Library (FL)

•2000 Pine Mountain Regional Library System (GA)

I have a stack of discriminatory library policies on my desk.

The libraries need to get the message that they cannot prevent religious speech from taking place in the community meeting rooms -- and that they have to treat everybody's speech on equal terms

Erik Stanley, Liberty Counsel Orlando (FL)
Agape Press Release: Colorado Library Learns Lesson, Quietly Settles Out of Court (Sept. 20, 2005)
headlines.agapepress.org/archive/9/202005f.asp

www.lc.org/news/

First Amendment What Kind of Space (Forum) Is It?

Limited public forum – open for limited public expression
Limited Public Forum

Public forum – open for public expression Nonpublic forum – staff areas

Public Forum

Nonpublic Forum

What Type of Forum Are Giveaway Racks, Display Cases, Bulletin Boards?

Public forum? Nonpublic forum? Limited public forum?
Public Forum
Limited Public Forum

Nonpublic Forum

Answer: You Can’t Tell by Looking at These Pictures

Depends on library policy and practice

Need To Look At Purpose and Use of Space Limited Public Forum

Nonpublic Forum
office

Public Forum
Limited Public Forum ?

public streets, parks, sidewalks

X
Can usually restrict speech Cannot usually restrict speech

Need To Look At Purpose and Use of Space Limited Public Forum

Narrow Purpose
Limited Public Forum ?

Broad Purpose

Narrower Purpose = better chance library can restrict content

Broader Purpose = looks like public forum speaker free speech rights

x

Gradations of Limited Public Forums

Nonpublic Forum

Limited Limited Public Forum Limited Public Forum Public Forum

Public Forum

Juried art

office

Cultural notices only

Public meeting room

street

Religion

What is Religious Speech? VIEWPOINT BASED Values, character development not unlike Boy Scouts
Good News Club v. Milford Central School, 533 U.S. 98 (2001)

What Kind of Speech Restriction Is It?
X

Content Neutral Prohibitions
TIME, PLACE, MANNER – Library Likely WINS

Content Based Prohibitions
Library LOSES unless very careful

Viewpoint Prohibitions
Speaker WINS DO NOT RESTRICT

Content Neutral

Likely OK

X

X

Time Place and Manner

X

X

Content Based Examples
X
Library Loses Unless VERY Careful Carefully articulated policy showing limited purpose and practice

X

X

Viewpoint Based Policies
Speaker WINS – DO NOT RESTRICT

Sexually Explicit Speech Sex
Child Pornography Obscenity Harmful to Minors

First Amendment Umbrella

Playboy (for adults) Nudes NAMBLA Ceramic Penis Art

Artist Told To Remove Court: Artist Wins Semi-Nude Paintings → Sues Library
Manhasset (NY) Public Library

X

3“semi-nude” paintings

Awarded undisclosed sum and guarantee to display in the library.

Bellospirito v. Manhasset Public Library, No. 93-CV-4484, at 13–14 (E.D.N.Y. July 31, 1994) unpublished opinion

Pasco City Hall Gallery Artist Sued Pasco City Hall Removed Removed Nude when it Nude Sculpture
Small nude sculpture displayed on main floor of City Hall for a single week
X “Artworks will not be juried in the usual sense, but all works will be screened for content and professional presentation. . . “

Subject matter: Wide open “public arts project paid for with public money”
Janette Hopper v City of Pasco, 241 F.3d 1067 (9th Cir. 2001)

Court: Artists Won
Court: Pasco blundered - could have avoided by establishing and enforcing clearly articulated policy that would pass First Amendment muster

X

City’s good intentions and good faith do not excuse violation of artists’ rights.

Janette Hopper v City of Pasco, 241 F.3d 1067 (9th Cir. 2001)

Library Removed All Nonlibrary Publications from Lobby
Free gay newspaper in library lobby

Patrons complained
X Library removed all nonlibrary publications Said it would still help patrons find it online

Gay Guardian Newspaper v. Ohoopee Reg'l Library Sys., 235 F. Supp. 2d 1362, 2002 U.S. Dist. LEXIS 23970 (S.D. Ga., 2002), aff’d 2003 U.S. App. LEXIS 27395 (11th Cir. 2003)

Court: Library Won
Library's “forum closing” equally affects both gay and nongay interests -- including Sons of Confederate veterans who might also wish to distribute their literature

X

Gay Guardian Newspaper v. Ohoopee Reg'l Library Sys., 235 F. Supp. 2d 1362, 2002 U.S. Dist. LEXIS 23970 (S.D. Ga., 2002), aff’d 2003 U.S. App. LEXIS 27395 (11th Cir. 2003)

Partisan

Politics
West Allis (WI) Library also restricted "meetings that are politically partisan" “ The "politically partisan" exclusion is also a narrow one because it covers only a small subcategory of political speech. The regulations do not define the phrase, "meetings that are politically partisan," but the apparent intent is to cover political party meetings...Thus, the exclusion appears to leave untouched a substantial amount of political speech, including discussion of all manner of controversial subjects such as abortion, homosexuality, flag burning, school prayer and race relations, so long as the speech does not occur at a politically partisan meeting.”
Pfeifer v. City of West Allis (WI) 91 F. Supp. 2d 1253 (2000)

Legal commentary

Partisan

Politics
West Allis (WI) Library also restricted "meetings that are politically partisan"

Speakers likely to win on “ The "politically partisan" exclusion is also a political speech: narrow one because it covers only a small abortion subcategory of political speech. The regulations do not definehomosexuality the phrase, "meetings that are politically partisan," burning flag but the apparent intent is to cover political party meetings...Thus, the school leave exclusion appears toprayer untouched a race relations substantial amount of political speech, Legal commentary
including discussion of all manner of controversial subjects such as abortion, Possibly okay to school prayer and homosexuality, flag burning, restrict political party meetings X race relations, so long as the speech does not occur at a politically partisan meeting.”
Pfeifer v. City of West Allis (WI) 91 F. Supp. 2d 1253 (2000)

Money
“By policy and practice the Library permits all nonprofits to use the Room except where the content of the proposed program is within one of a few very narrow exclusions. The exclusion of commercial sales presentations is narrow because the forum is limited to nonprofits.”

Likely OK to restrict
Pfeifer v. City of West Allis (WI) 91 F. Supp. 2d 1253 (2000)

X

Can Library Restrict “Controversial” Art, Groups?
• No! • Classic Viewpoint Based!!

Audience Impact Restrictions? NO!!
• 2001 Schaumburg (IL) cancelled Matthew Hale, World Church of the Creator, for public safety

Settlement: Allowed to speak when library was closed.
• 2001 Wallingford (CT) Police used pepper spray on 600 crowd • 2002 York (PA) Hundreds in streets, 25 arrests, guns confiscated • 2002 Yorktown (VA) 170 officers in riot gear deterred protests against Hale

-American Libraries News Briefs

Incitement Test

Advocacy directed to inciting

imminent lawless action &
likely to incite or produce action
X Very hard to show can’t show in advance (prior restraint)

Brandenburg v. Ohio, 395 U.S. 444 (1969)

May Library Charge Group Extra for Security?
No
• Supreme Court - can’t charge based on perceived need for heightened security
• Does not become more constitutional because it is small.

Forsyth County v Nationalist Movement 505 US 123 (1992)

Question is Always
Will Library Policy Win in Court?

Library Rule
“on its face” and “as applied”
Courts will examine rule

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

Equal Enforcement Notice Due Process (appeals)

Post-Supreme Court Library Porn Case Library Lost on END

Ralph J. Miller v. Northwest Region Library Bd., P Gwyn, Librarian, J. Hedrick, Director, 2004 U.S. Dist. LEXIS 25403, (December 8, 2004)

Courts Require More Justification if ANY Speech Involved

Behavior Policies

• Sufficiently clear so that reasonable person can understand what violates rule

• If speech is involved at all, “more stringent” standard
Armstrong v. D.C. Public Library, 154 F. Supp. 2d 67 (D.C. 2001), citing Anderson v. Creighton, 483 U.S. 635 (1987)

Kreimer case
Users have right to receive information in public library [limited public forum] First Amendment
Libraries may make reasonable behavior policies

Behavior Policies
Library

Court hurdle

Kreimer Case

Kreimer v Bureau of Police, 958 F2d 1242, 1262 (3d Cir 1992)

Rules Must Be Related to MISSION
Kreimer case

Foster a quiet and orderly atmosphere conducive to

receiving and reading written
communications
Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992)

Behavior Policy: No Board Games

Is This Rule Reasonable?

New Rochelle Public Library

People v. Taylor, 164 Misc. 2d 868 (N.Y. App. Term 1995)

YES, No Board Games Rule IS Reasonable.

X

New Rochelle Public Library won

X
People v. Taylor, 164 Misc. 2d 868 (N.Y. App. Term 1995)

END Important! FENDBehavior Policies off lawsuits Even in

Equal Enforcement Notice Due Process (Appeals)

Enforced Equally
No Sleeping

Notice 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)

Due Process (Appeals)
Bottom line: Must offer appeals process if feasible
Courts will look at Likelihood of mistakenly taking away patron’s rights Administrative Burden

Harassment Behavior Harassment: Two Cases Two Outcomes
Kreimer case
Patrons shall respect the rights of other patrons and shall not harass or annoy others through noisy or boisterous activities, by staring at another person with the intent to annoy that person, by following another person about the building with the intent to annoy that person, by playing audio equipment so that others can hear it, by singing or talking loudly to others or in monologues, or by behaving in a manner which reasonably can be expected to disturb other patrons.

Library won

Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992)

Brinkmeier case
Unwritten policy

Patron won

Brinkmeier v. Freeport, 1993 U.S. Dist. LEXIS 9255 (N.D. Ill. July 2, 1993)

Harassment Policy Morristown Library Won
Rule upheld

Patrons shall respect the rights of other patrons and shall not harass or annoy others through noisy or boisterous activities, by staring at another person with the intent to annoy that person, by following another person about the building with the intent to annoy that person, by playing audio equipment so that others can hear it, by singing or talking to others or in monologues, or by behaving in a manner which reasonably can be expected to disturb other persons.

Equal enforcement, Notice, Due Process

Earlier Version of Same Policy
Note earlier library rule

Patrons shall respect the rights of other patrons and shall not annoy others through noisy or boisterous activities, by unnecessary staring, by following another person through the building, by playing walkmans or other audio equipment so that others can hear it, by singing or talking to oneself or by other behavior which may reasonably result in the disturbance of other persons.

Court said Library changed rule after talks with ACLU

Harassment Policy Morristown Library Won
Rule upheld

Patrons shall respect the rights of other patrons and shall not harass or annoy others through noisy or boisterous activities, by staring at another person with the intent to annoy that person, by following another person about the building with the intent to annoy that person, by playing audio equipment so that others can hear it, by singing or talking to others or in monologues, or by behaving in a manner which reasonably can be expected to disturb other persons.

Equal enforcement, Notice, Due Process

FRI Analysis-Policy Case Harassment Connect to Library Purpose Library Patron Won
Followed library clerk as she left library

Let’s have sex

Gave note asking for sex
Unwritten practice No definition of “harass” Unlimited geographic scope No formal appeals

Brinkmeier v. Freeport, 1993 U.S. Dist. LEXIS 9255 (N.D. Ill. July 2, 1993)

Library Patron Behavior “Plus” Speech Policies
Library

BEHAVIOR + SPEECH

Court hurdle

Hygiene - Why Intermediate Scrutiny?
Peaceful engagement in permissible First Amendment activities within the purposes for which the Library was opened, such as reading, writing or quiet contemplation.
Turned away before entering door… no chance to “receive information”

Hygiene Policies Library Rules on Hygiene Two Outcomes
Kreimer case
Patrons whose bodily hygiene is offensive so as to constitute a nuisance to other persons shall Library be required to leave the building… won
Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992)

Armstrong case
Objectionable appearance (barefooted, barechested, body odor, filthy clothing, etc.) ... . or if Patron won his or her appearance "interferes with the

orderly provision of library services."
Armstrong v. D.C. Public Library, 154 F. Supp. 2d 67 (D.C. 2001)

Library Rule Upheld
Library Rule:

Patrons whose bodily hygiene is offensive so as to constitute a nuisance to other persons shall be required to leave the building.
Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992)

New Jersey Nuisance Law
"anything that unduly interferes with the exercise of the common right” “Nuisance” is objective legal term. Notice, Due Process given.

Enforcement, Notice, Due Process

Earlier Version of Same Rule
Patron dress and personal hygiene shall conform to the standard of the community for public places. This shall include the repair or cleanliness of garments.

Library changed to “nuisance” standard
Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992)

Hygiene Policy that Patron Won on END
Objectionable appearance (barefooted, barechested, body odor, filthy clothing, etc.) ... . or if his or her appearance "interferes with the orderly provision of library services."

END - “Etc.” depends on interpretation, no instructions to guards, no appeals process

Enforcement, Notice, Due Process

Compare: Penis in Tights Case
• Rule: only said no shirt, no shoes

• Equal protection claim lost • ND didn’t Library seem to matter

won

expansive reading of dress code

• Ruling: Visible genitalia “even more detrimental to the other patrons” than no shoes or shirt
Doxy v. Chicago Public Library, CCHR No. 99-PA-31 (2001)

Reasonable or Intermediate?
Test for “Symbolic Speech”

No Bare Feet

•Particularized message •Likely to be understood by the hearer
Neinast v. Columbus Metro. Library (OH), 346 F.3d 585 (6th Cir. 2003);
cert. den., 2004 U.S. LEXIS 2792 (2004).

Court: Bare Feet is Behavior Reasonable Standard
Court: Not likely that patrons will understand his purported message

Library won

No Known Court Cases Unattended Children at Library
Common Law – generally no duty to aid child, but once begun, must see through STAFF needs clear policy! Then, staff follows policy - library likely responsible Immunities apply to library and staff No policy, individual staff likely liable (esp. after hours)

Truancy?

San Marino Ordinance No 099-1129
• Children 12 or younger closing - call for ride • 15 minutes - call police • Police takes child home or to station • First time - Warning • Second time - Fees

Virginia Beach (VA) Closing Policy
Under six, call police immediately
Under no circumstances shall a staff member take the child out of the building, provide transportation, or physically restrain him/her from leaving.
Virginia Beach City Administrative Directive 3.10

Virginia Beach - Posters Show Forlorn Children
• Photo of children sitting in front of building, look like they lost their puppy
• Lip trembling
Library, Social Services, Recreation Centers, Police working together

Privacy Policies
For Librarians and Libraries American Library Basics| Developing a Confidentiality Policy| State Statutes on Library Confidentiality | Privacy Resources for Librarians, Library Patrons, and Families | ALA Policies and Guidelines Access to Electronic Information, Services, and Networks | Questions and Answers: Access to Electronic Information, Services, and Networks | Code of Ethics | Freedom to Read Statement | Freedom to View Statement | Library Bill of Rights | Policy concerning Confidentiality of Personally Identifiable Information about Library Users | Policy on Confidentiality of Library Records | Suggested Procedures for Implementing Policy on Confidentiality of Library Records | Privacy: An Interpretation of the Library Bill of Rights Questions and Answers on Privacy and Confidentiality Privacy Tool Kit

www.ala.org/privacy - then click “privacy resources”

FLORIDA
• Registration and Circulation • Exceptions –Proper judicial order
– Fines and overdues
• Parent or guardian of child under 16 • Collection agencies • Municipal or county law enforcement • Judicial officials
Fla. Stat. 257.261 (2005)

Records

CIRCULATION RECORDS This record series consists of physical or electronic records of the loan of materials to library users, including records of overdue or delinquent materials. RETENTION: a) Record copy. Retain until transaction completed. b) Duplicates. Retain until obsolete, superseded or administrative value is lost.

EQUIPMENT USE RECORDS This record series consists of records of the loan or use of library equipment by the public and may include the loan or use of public access computers, DVD or video tape players, cassette tape recorders and film projectors. RETENTION: a) Record copy. Retain until obsolete, superseded or administrative value is lost. b) Duplicates. Retain until obsolete, superseded or administrative value is lost.

dlis.dos.state.fl.us/barm/genschedules/gs15.doc

Subpoenas v. Search warrants

Administrative Criminal Civil … generally gives time to see lawyer

• Issued by court • IMMEDIATELY EXECUTABLE

www.llrx.com/features/draftsearch.htm

Summary: FEND off lawsuits
First Amendment
tread carefully Equal Enforcement

Notice Due Process (Appeals)

Poster-Ramadan

APPEALS PROCESS – suspension appeal to director

Privacy – Records Retention? Library card proof-of-residency-requirements? Jessica Lunsford and Joint Use Libraries? Truancy? Lending out toys? Sexual predators living within 1000 feet?

Further Resources
American Library Association
Guidelines for the Development of Policies and Procedures Regarding User Behavior and Library Usage (Jan 2005) www.ala.org … search “policies”

Mary Minow and Tomas Lipinski The Library’s Legal Answer Book (ALA 2003)
and LibraryLaw.com (with blog)

WE ARE THE GOVERNMENT


				
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