Friday, December 03, 2010

Webinar Notes: On Writing a Library Behavior Code

I sat in my office for the Infopeople November 18, 2010 webinar on the topic of "Writing a Library Behavior Code." You can get to the archived webinar as well as handouts at the link. What follows are some of the notes I took as I listened, which I am jotting here mostly for reference purposes. The handout on resources has a good summary of cases with explanations (link to PDF, but the webinar link also has option for a Word Doc).

I make the same disclaimer the presenter made: this is NOT legal advice. We are discussing legal information.

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Can a library enforce rules? For behavior, a library may set reasonable rules related to mission (for example, rules on no bathing in the restroom or sleeping). You need to be more cautious about speech restrictions. Analyze your space, how it is set up. Is a limited public forum created? It is best to restrict on the basis of time, place, manner, not content. Reminder that you may need to check with an attorney.

For example, tobacco in the library is a behavior issue, so you can set rules.

A dress code is a more complicated issue; we are looking at patrons now. Rely on legal standards (issues like public indecency laws). Again, you may need to check with an attorney.
  • On the one hand, there is Armstrong v. D.C. Public Library, 154 F. Supp. 2d 67 (D.C. 2001)(library policy: “objectionable -barefooted, bare-chested, body odor, filthy clothing, etc.” overturned by court).
  • On the other hand, there is Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. N.J. 1992)(library policy “shirt or other covering of their upper bodies” upheld by court).
  • Bare feet is seen (usually) as a health/safety issue, so courts often uphold this restriction. 
On breastfeeding. In California at least, it is protected by law. Check for laws in your state

On "smoochy patrons." This is a behavior issue, so the library can make reasonable rules, which need to be enforced evenly.  (overall, a common theme is whether you have a behavior versus an expression issue. Behavior, it seems, can be better regulated. Anything dealing with freedom of expression is trickier, and it should be avoided).

On tees with bad language. This is an expression issue, so you have to let it in. The government cannot make distinctions regarding individual taste and style. However, there can be limits. For instance, this would be different in a school library given that schools can and do set dress codes.

Soliciting. This depends and can vary. Analysis says it is ok to restrict it in the library reading room/main area. Basically that is because the purpose for the space is not for a soapbox.
  • What about the grounds (outside)? It is ok to ban all types of solicitation, but not on the basis of viewpoint (pro-life versus pro-choice for instance) if the grounds are just a path (as opposed to a gathering place. To be honest, I think this may be applicable to the new garden space my library has, where it is clearly a gathering place. While this has not been an issue yet, it may be something to keep in mind if say, for example, some itinerant preacher shows up). 
  • But if you have an area (again, I am thinking our gardens for example). Consider the time, place, manner principles. You may have a strong legal justification to restrict monetary solicitations versus just someone distributing literature. Again, do not restrict based on content.
Sex offenders in the library:
  • Easy: if you have something like looking up skirts (exhibiting the behavior), you call the cops. 
  • If not exhibiting an offensive behavior (for instance, someone just points it out to you), you need to be a bit more careful. In addition, due to First Amendment issues, you can't just ban someone from the library on the basis of offender status; however, you could limit their access to certain hours (for example, not during children story time hours). 
On civility:
  • Try to focus on behavior and loudness. Don't base on what someone may be saying but rather on the fact they are disturbing others and creating a disruption. See the Kreimer case ("intent to annoy" would be the applicable principle). The protection of speech is crucial, but there are exceptions, such as threats. 
Reminder: FEND= Free speech (tread carefully), Equal protection, Notice, Due Process (appeals). 

Another note, new ADA rules go in effect on March 15, 2011. You may want to visit the ADA website now. In terms of disabilities, you can't discriminate based on a disability unless you can show there would be a fundamental program alteration (this is in the context of questions of a special needs adult in a children's story hour or in a children's table areas).

A final question for now: Is a permanent prohibition ever possible? You need to be cautious, consult an attorney due to many First Amendment issues.

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