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FL2005

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Information about FL2005
Travel-Nature

Published on March 12, 2008

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Slide1:  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 Slide2:  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 Slide3:  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 Fending Off Lawsuits www.librarylaw.com/FL2005.ppt until Nov. 30, 2006 Legal Disclaimer:  Legal Disclaimer Legal information Not legal advice! FEND off lawsuits :  FEND off lawsuits Agenda First Amendment tread carefully Equal Enforcement Notice Due Process (Appeals) FEND off lawsuits :  FEND off lawsuits Specific Cases Meeting rooms, displays Behavior – harassment, odor Note on unattended children Note on privacy Legal Framework:  Legal Framework Constitution Federal Law State Laws Local laws Library Policies Question is Always:  Question is Always Library Rule Will Library Policy Win in Court? Or will Patron win? :  Or will Patron win? Court: Library Can’t Prohibit Religious Groups from Meeting Room:  Court: Library Can’t Prohibit Religious Groups from Meeting Room Concerned Women for America, v. Lafayette County and Oxford Public Library, 883 F.2d 32 (5th Cir., 1989) Meeting Room Policy: Not available for meetings for religious purposes Library Rule Court: Library Can’t Prohibit Religious Groups from Meeting Room:  Court: Library Can’t Prohibit Religious Groups from Meeting Room Now may use for religious services or instructions Library Rule Policy: Excludes religious services or instructions Christopher A. PFEIFER, v. City of West Allis, 91 F. Supp. 2d 1253 (E.D. Wisc., 2000). No Religion Policies Knocked Over Like Deck of Cards:  Religious Speakers Right To Same Access As Everyone Else No Religion Policies Knocked Over Like Deck of Cards 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) Slide13:  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) Slide14:  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 Slide15:  www.lc.org/news/ First Amendment What Kind of Space (Forum) Is It?:  Limited Public Forum First Amendment What Kind of Space (Forum) Is It? Public forum – open for public expression Nonpublic forum – staff areas Limited public forum – open for limited public expression Public Forum Nonpublic Forum What Type of Forum Are Giveaway Racks, Display Cases, Bulletin Boards?:  What Type of Forum Are Giveaway Racks, Display Cases, Bulletin Boards? Public forum? Nonpublic forum? Limited public forum? Nonpublic Forum Limited Public Forum Public Forum Answer: You Can’t Tell by Looking at These Pictures:  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 Public Forum office public streets, parks, sidewalks Need To Look At Purpose and Use of Space Can usually restrict speech Cannot usually restrict speech Limited Public Forum ? Need To Look At Purpose and Use of Space:  Limited Public Forum Narrow Purpose Broad Purpose Narrower Purpose = better chance library can restrict content Broader Purpose = looks like public forum speaker free speech rights Need To Look At Purpose and Use of Space Limited Public Forum ? Gradations of Limited Public Forums:  Limited Public Forum Public Forum Nonpublic Forum Limited Public Forum Limited Public Forum Gradations of Limited Public Forums office street Juried art Public meeting room Cultural notices only Religion:  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) Slide23:  Content Neutral Prohibitions TIME, PLACE, MANNER – Library Likely WINS Content Based Prohibitions Library LOSES unless very careful Viewpoint Prohibitions Speaker WINS DO NOT RESTRICT What Kind of Speech Restriction Is It? Content Neutral:  Content Neutral Time Place and Manner Likely OK Slide25:  Library Loses Unless VERY Careful Carefully articulated policy showing limited purpose and practice Content Based Examples Viewpoint Based Policies:  Viewpoint Based Policies Speaker WINS – DO NOT RESTRICT Sexually Explicit Speech:  Sexually Explicit Speech Sex Child Pornography Obscenity Harmful to Minors Playboy (for adults) Nudes NAMBLA Ceramic Penis Art First Amendment Umbrella Sex Court: Artist Wins:  Manhasset (NY) Public Library 3“semi-nude” paintings Awarded undisclosed sum and guarantee to display in the library. Court: Artist Wins Bellospirito v. Manhasset Public Library, No. 93-CV-4484, at 13–14 (E.D.N.Y. July 31, 1994) unpublished opinion Artist Told To Remove Semi-Nude Paintings → Sues Library Pasco City Hall Gallery Removed Nude Sculpture:  Small nude sculpture displayed on main floor of City Hall for a single week “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” Pasco City Hall Gallery Removed Nude Sculpture Janette Hopper v City of Pasco, 241 F.3d 1067 (9th Cir. 2001) Artist Sued Pasco City Hall when it Removed Nude Court: Artists Won:  Court: Pasco blundered - could have avoided by establishing and enforcing clearly articulated policy that would pass First Amendment muster City’s good intentions and good faith do not excuse violation of artists’ rights. Court: Artists Won 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 Library removed all nonlibrary publications Said it would still help patrons find it online Library Removed All Nonlibrary Publications from Lobby 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 non-gay interests -- including Sons of Confederate veterans who might also wish to distribute their literature Court: Library Won 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) Slide34:  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.” Politics Partisan Pfeifer v. City of West Allis (WI) 91 F. Supp. 2d 1253 (2000) Legal commentary Slide35:  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.” Politics Partisan Pfeifer v. City of West Allis (WI) 91 F. Supp. 2d 1253 (2000) Legal commentary Speakers likely to win on political speech: abortion homosexuality flag burning school prayer race relations Possibly okay to restrict political party meetings Money:  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.” Pfeifer v. City of West Allis (WI) 91 F. Supp. 2d 1253 (2000) Likely OK to restrict Can Library Restrict “Controversial” Art, Groups?:  Can Library Restrict “Controversial” Art, Groups? No! Classic Viewpoint Based!! Audience Impact Restrictions? NO!!:  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:  Incitement Test Advocacy directed to inciting imminent lawless action & likely to incite or produce action Brandenburg v. Ohio, 395 U.S. 444 (1969) Very hard to show - can’t show in advance (prior restraint) May Library Charge Group Extra for Security? :  May Library Charge Group Extra for Security? 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) No Question is Always:  Question is Always Library Rule Courts will examine rule “on its face” and “as applied” Will Library Policy Win in Court? Ensure Procedural Safeguards:  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:  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) Slide44:  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) Behavior Policies Courts Require More Justification if ANY Speech Involved Kreimer case:  Kreimer case Users have right to receive information in public library [limited public forum] First Amendment Libraries may make reasonable behavior policies Slide46:  reasonable Behavior Policies Library Court hurdle Kreimer Case:  Kreimer Case Kreimer v Bureau of Police, 958 F2d 1242, 1262 (3d Cir 1992) “Patrons shall be engaged in activities associated with the use of a public library while in the building. Patrons not engaged in reading, studying, or using library materials shall be required to leave the building.” Rules Must Be Related to MISSION:  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?:  Behavior Policy: No Board Games Is This Rule Reasonable? People v. Taylor, 164 Misc. 2d 868 (N.Y. App. Term 1995) New Rochelle Public Library YES, No Board Games Rule IS Reasonable.:  YES, No Board Games Rule IS Reasonable. People v. Taylor, 164 Misc. 2d 868 (N.Y. App. Term 1995) New Rochelle Public Library won FEND off lawsuits :  FEND off lawsuits Equal Enforcement Notice Due Process (Appeals) END Important! Even in Behavior Policies Enforced Equally:  Enforced Equally No Sleeping Notice to Patrons:  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):  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: Two Cases:  Harassment: Two Cases 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. Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992) Brinkmeier case Unwritten policy Brinkmeier v. Freeport, 1993 U.S. Dist. LEXIS 9255 (N.D. Ill. July 2, 1993) Harassment Behavior Two Outcomes Library won Patron won Harassment Policy Morristown Library Won:  Harassment Policy Morristown Library Won Equal enforcement, Notice, Due Process 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. Slide57:  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:  Harassment Policy Morristown Library Won Equal enforcement, Notice, Due Process 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. Harassment Policy Case Library Patron Won:  Unwritten practice No definition of “harass” Unlimited geographic scope No formal appeals FRI Analysis- Connect to Library Purpose Harassment Policy Case Library Patron Won Let’s have sex Followed library clerk as she left library Gave note asking for sex Brinkmeier v. Freeport, 1993 U.S. Dist. LEXIS 9255 (N.D. Ill. July 2, 1993) Slide60:  reasonable Intermediate BEHAVIOR + SPEECH Library Patron Behavior “Plus” Speech Policies Library Court hurdle Hygiene - Why Intermediate Scrutiny? :  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” Library Rules on Hygiene :  Kreimer case Patrons whose bodily hygiene is offensive so as to constitute a nuisance to other persons shall be required to leave the building… Armstrong case Objectionable appearance (barefooted, bare-chested, body odor, filthy clothing, etc.) ... . or if his or her appearance "interferes with the orderly provision of library services." Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992) Armstrong v. D.C. Public Library, 154 F. Supp. 2d 67 (D.C. 2001) Library won Patron won Library Rules on Hygiene Hygiene Policies Two Outcomes Library Rule Upheld:  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:  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:  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. Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992) Library changed to “nuisance” standard Hygiene Policy that Patron Won on END:  Hygiene Policy that Patron Won on END END - “Etc.” depends on interpretation, no instructions to guards, no appeals process Objectionable appearance (barefooted, bare-chested, body odor, filthy clothing, etc.) ... . or if his or her appearance "interferes with the orderly provision of library services." Enforcement, Notice, Due Process Compare: Penis in Tights Case:  Compare: Penis in Tights Case Rule: only said no shirt, no shoes Equal protection claim lost ND didn’t seem to matter 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) Library won expansive reading of dress code No Bare Feet Reasonable or Intermediate? :  No Bare Feet Reasonable or Intermediate? Test for “Symbolic Speech” 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: 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:  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:  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 :  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 :  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:  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:  FLORIDA Registration and Circulation Records 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) Slide76:  dlis.dos.state.fl.us/barm/genschedules/gs15.doc 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. Subpoenas v. Search warrants:  Subpoenas v. Search warrants Issued by court IMMEDIATELY EXECUTABLE Administrative Criminal Civil … generally gives time to see lawyer Slide78:  www.llrx.com/features/draftsearch.htm Summary: FEND off lawsuits :  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? Sexual harassment? Trespass? Further Resources:  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:  WE ARE THE GOVERNMENT

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