by Kathleen T. Henn and Gregory T. Smith

When it comes to the First Amendment, libraries have a special place. Public libraries are described as "the quintessential locus of the receipt of information" and, therefore, the right to of access to a public library is constitutionally protected by the First Amendment right to receive information. Kreimer v. Bureau of Police, 958 F.2d 1242, 1255 (3rd Cir. 1992). Libraries deal with many First Amendment issues due to the services they provide. For example, libraries need to determine how their meeting rooms may be used, how and whether to filter information available on the Internet, how to deal with specific patron behavior and other issues that must be considered in conjunction with the First Amendment. Courts also frequently rule with respect to First Amendment issues. For that reason, we present the general rules in approaching a First Amendment issue in Part 1 of this series of articles on the First Amendment in libraries. For most First Amendment analysis, a fact-specific approach and review and review of the most recent case law is necessary to determine what is permissible. We will address use of meeting rooms, filtering, material selection, patron behavior and related issues in future parts.

Forum Analysis

In order to analyze what restrictions apply and what type of regulations are permissible when the First Amendment applies, we engage in what is referred to as “forum analysis.” We use a forum analysis to determine the limits on a governmental entity’s ability to regulate speech in a particular forum. Public property can be a traditional public forum, limited public forum (sometimes referred to as a designated public forum), or a non­public forum. Rabbi Abraham Grossbaum and Lubavitch of Indiana, Inc. v. Indianapolis -Marion County Building Authority, 100 F.3d 1287 (7th Cir. 1996). Traditional public fora are properties like streets and parks that have always been used for the purpose of communication and the discussion of public questions. Designated or limited fora are public properties deliberately opened by the public body to the public for expression. Non-public fora are all other public properties that are not opened for public expression. Id.

Traditional Public Forum

A traditional public forum is a place which “by long tradition or by government fiat has been devoted to assembly and debate. Perry Educ. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45 (1983). City or village right-of-ways, public sidewalks and parks are examples of traditional public fora. Public speech in a traditional forum can be regulated only by reasonable, content-neutral, time, place and manner restrictions, or by narrowly drawn regulations that advance a compelling interest of the governmental body.

Limited Public Forum

A limited public forum is created when a library opens spaces such as meeting rooms or display spaces for public use, but reserves their use or the groups that use them for the discussion of certain topics. Rosenberg v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 829 (1995). A designated forum may be limited as to speakers or as to subject matter, if the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral. Bronx Household of Faith v. Community School District No. 10, 127 F.3d 207 (2nd Cir. 1997). Reasonable time, place and manner restrictions may also be imposed to limit expressive activity. Perry Education Assn. 460 U.S. at 46.

Non-Public Forum

Public libraries are typically classified as non-public fora unless the board of library trustees has taken action to actively open parts of the library for public speech purposes. A non-public forum exists in public facilities or spaces that are not intended for free expression and their use is reserved for a particular class of speakers who must obtain permission to use them. Gay Guardian Newspaper v. Ohoopee Regional Library, 235 F. Supp.2d 1362 (S.D. Ga. 2002). In a non-public forum, i.e. where the public property is not by tradition or designation a forum for public communication, the library can regulate speech so long as such regulation is viewpoint neutral and reasonably related to a legitimate governmental interest. Perry Educ. Assn., 460 U.S. 37.

Examples

Different spaces within a single library could be considered all three types of fora depending on the area of the library involved and the activity taking place therein. For example, a sidewalk outside of a library is most likely to be considered a traditional public forum. A display case, where a library has written a policy limiting what can be displayed, would be considered a limited public forum. Furthermore, a reading or study room of a library may be considered a non-public forum, because the permitted uses of the study or reading room is limited by policy and practice although the room is located inside an otherwise public facility.

The next part of this series on First Amendment issues will discuss meeting room policies.

Kathleen Henn is a partner and Gregory Smith is an associate attorney with the law firm of Klein, Thorpe & Jenkins, Ltd. which is an Illinois law firm with offices in the Civic Opera Building at 20 North Wacker Drive in Chicago and at 15010 S. Ravinia, Orland Park. The firm concentrates in the representation of local libraries, Library districts and Library systems, as well as other local governmental units.

Published January 20, 2010 in vol. 4, iss. 2 [View]