by James W. Fessler and E. Kenneth Friker

In the first part of our series on First Amendment issues, we explained that a “forum analysis” is utilized to determine the ability of a governmental entity or library to regulate constitutionally protected speech and freedom of expression in a particular forum. We then described the three fora, namely (1) a traditional public forum or public property like parks and sidewalks that have always been used for the purpose of communication and discussion of public questions; (2) a designated or limited forum or public property which is deliberately opened by a public body to allow for public expression; and (3) a non-public forum or all other public property which is not opened by a public body to allow for public expression. We finally explained that libraries as public bodies are subject to this “forum analysis” when First Amendment issues arise. In this portion of our First Amendment series, we address meeting room and bulletin board policies.

Depending upon the policies created for their use, meeting rooms and bulletin boards in libraries can be characterized as traditional public fora, designated or limited fora or nonpublic fora. In fact, your library may have multiple meeting rooms and bulletin boards, each of which is subject to a different forum analysis because of its designated use. Indeed, when use of a meeting room is open to the public and its use is not limited in any way, it may be considered a traditional public forum. Likewise, when use of a bulletin board is open to the public and its use is not limited in any way, it too may be considered a traditional public forum.

On the other hand, when use of a meeting room is limited to certain members of the public and/or for certain uses by the public, it may be considered a designated or limited public forum. Similarly, when use of a bulletin board is limited to certain members of the public and/or for certain uses by the public, it too may be considered a designated or limited public forum.
Finally, when the public is prohibited from using a meeting room, it may be considered a non-public forum. At the same time, when the public is prohibited from using a bulletin board, it too may be considered a non-public forum.
In light of the foregoing, a library should create carefully drafted, attorney-reviewed policies regarding meeting room and bulletin board use from the very beginning. A library must then consistently and objectively enforce these use policies or risk a claim or suit alleging an abrogation of an individual’s constitutional rights to free speech and freedom of expression under the First Amendment. Finally, libraries should review these use policies every two to three years.

By no means are we advising you to close your meeting rooms and bulletin boards to public use. Instead, we want you to understand and be aware of the consequences and potential issues relating to meeting rooms and bulletin boards when drafting policies regarding their use and enforcing those policies. Indeed, meeting room and bulletin board use policies must take into consideration the needs of the community, the ideas of the library and the requirements of the First Amendment.

When first drafting a meeting room or bulletin board use policy, you must consider the importance of parameters and the uses that the library board would like to allow. With regard to meeting rooms, among other things, you may want to limit the hours and times at which they can be accessed by the public. You may also want to limit the use of amplifiers, speakers, the playing of live or recorded music or the use of raised or singing voices. You may also want to limit the number of people that can congregate in light of the size of the room.

With regard to both meeting rooms and bulletin boards, you may want to create an application for their use and limit their use to library related activities. You may want to prohibit commercial uses or limit use to non-profit organizations for educational, cultural, intellectual or charitable activities. You may also want to prohibit their use to promote or oppose specific candidates for public office or a question or referendum on a ballot. By no means is the foregoing an exhaustive list, but your use policies must clearly define what can and cannot be done.

When a use policy is vague or overly broad, the library is likely to have less control over its meeting rooms and bulletin boards, and will have less of an ability to limit, restrict or deny its use. On the other hand, a clear, unambiguous and narrowly tailored use policy is likely to give a library greater control over its meeting rooms and bulletin boards, and a greater ability to limit, restrict or deny its use.

Finally, enforcement of use policies cannot be overlooked. Indeed, while a carefully drafted use policy is undeniably important, objective and consistent enforcement of that policy is equally important. In fact, subjective and/or inconsistent enforcement of a use policy will only lead to problems. Likewise, failure to enforce use policies will lead to problems. For example, if a group that is prohibited by policy from using a meeting room or bulletin board is allowed access, you may not be able to later prevent another prohibited group from using them.

The next portion of this series on First Amendment issues will address filtering and material selection.

E. Kenneth Friker and James W. Fessler are partners with Klein, Thorpe and Jenkins, Ltd., a law firm with offices in the Civic Opera Building at 20 North Wacker Drive in Chicago and at 15010 S. Ravinia in Orland Park. The firm concentrates in the representation of local libraries, Library Districts and Library Systems, as well as other local governmental units.

Published February 17, 2010 in vol. 4, iss. 4 [View]