Mary Minow J.D., A.M.L.S.

1. Writing a Library Behavior Code An webinar Mary Minow J.D., A.M.L.S. December 10, 2009

2. Legal Disclaimer Legal information Not legal advice!

3. Agenda First Amendment tread carefully Equal Enforcement Notice Due Process (Appeals) FEND off lawsuits

4. Agenda Free Speech tread carefully Equal Enforcement Notice Due Process (Appeals) Emerging Issues Patrons 2.0

5. 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.

6. Teen bothering others Too loud?

7. Teen bothering others Too loud? Noise rules OK … apply equally to all

8. Teen bothering others Too many?

9. Teen bothering others Too many? Limits on number at computer OK … apply equally to all

10. Teen bothering others Obnoxious language?

11. 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 Unpublished .

12. range of responses www.popcenter.org

13. BreastfeedingBehavior, right? May California library prohibit?

14. 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

15. Man sneezes – H1N1? Can library tell him to leave? Behavior?

16. 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

17. Helpful for criteria to close a library wikis.ala.org/professionaltips/index.php/Pandemic_Planning

18. Agenda Free Speech tread carefully Equal Enforcement Notice Due Process (Appeals) Emerging Issues Patrons 2.0

19. Ensure Procedural Safeguards May not leave it to “whim of administrator” – objective standards Equal Enforcement Notice Due Process (appeals)

20. 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 Enforced Equally Brown v Louisiana, 383 U.S. 131 (1966) www.zinasaunders.com/

21. 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

22. 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

23. Agenda Free Speech tread carefully Equal Enforcement Notice Due Process (Appeals) Emerging Issues Patrons 2.0

24. 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)

25. How much notice? Binders in back room? Conduct policies should be posted Other policies at point of contact e.g. meeting room

26. 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.

27. Due Process (Appeals) Courts look at Liberty and First Amendment interests in using libraries Risk of error Administrative burden Bottom Line: Offer appeals

28. 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).

29. 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).

30. 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

31. 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

32. Agenda Free Speech tread carefully Equal Enforcement Notice Due Process (Appeals) Emerging Issues Patrons 2.0

33. Patron Speech 2.0 bradfordcountylibrary.blogspot.com/

34. Free Speech, Community Standards and Defamation First Amendment triggered when Government suppresses speech based on content or viewpoint

35. 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).

36. PROTECTED Internet Speech under Umbrella of First Amendment Speech that is…

37. 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/

38. www.tsa.gov/blog/2008/01/comment-policy.html

39. Library blog as newsletter “Nonpublic forum” Library as editor of online newsletter …. Not limited public forum One way communication Letters to editor

40. Using third parties (flickr, bibliocommons, youtube) opl.bibliocommons.com

41. 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

42. ix If one direction, simpler, just publisher liability wiki.creativecommons.org/Podcasting_Legal_Guide

43. Summary Free Speech tread carefully Equal Enforcement Notice Due Process (Appeals) Emerging Issues Patrons 2.0