by Kathleen T. Henn and Gregory T. Smith

Part IV of this Library Law series on the First Amendment focused on material selection.  This final part of the series will address the remaining issues of patron behavior and appearance in libraries.  A library can limit First Amendment challenges to policies regarding patron behavior, including hygiene policies, by having written policies that: 1) are posted; 2) contain specific, clear and unambiguous language so that patrons and library staff understand what is expected; and 3) are objective and equally enforced by library staff so that patrons are not subject to the discretion of library staff.  In addition, the policies must provide for due process in connection with the suspension or termination of library privileges. 

Disruptive Behavior

Libraries may regulate the use of their facilities and patron behavior as long as its regulation is reasonable and applied in a non-discriminatory manner.  Brown v. State of La., 383 U.S. 131, 143 (1966).  A library should neither prohibit nor interfere with non-disruptive patron behavior occurring on library grounds, because this may be seen as an abrogation of First Amendment rights. 

In Kreimer v. Bureau of Police of the Town of Morristown, et al., 958 F.2d 1242 (3rd Cir. 1992), the court upheld the library’s behavior policy which 1) required patrons to respect the rights of other patrons; 2) prohibited patrons from harassing or annoying others through noisy or boisterous activities; 3) prohibited staring or following another with the intent to annoy; and 4) prohibited patrons from behaving in a manner which reasonably could be expected to disturb other patrons or staff.  Similarly, a library may prohibit patrons from making threats against staff and fellow patrons.  Hunt v. Wise, 2009 WL 2163108 (M.D. Fla. 2009).  Such a policy is permissible, though patrons have a First Amendment right to enjoy the library, because the library must be able to achieve its goal of providing services to the public.  It is clear that “all patrons have the right to the use of the public library without being subjected to annoying, perhaps criminal, conduct.”  Doyle v. Clark County Public Library, 2007 WL 2407051 (S.D. Ohio 2007).

Hygiene Policies

Hygiene policies are typically upheld, so long as they are drafted with the goal of minimizing disruptions in the library.  Such policies are valid because a library has a significant interest in maintaining a harmonious atmosphere – where a hygiene policy is narrowly tailored to define offensive bodily hygiene as that which affects the ability of others to use the library facilities as intended, the policy will be upheld.  Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242 (3rd Cir. 1992).

Where a library hygiene and appearance policy is unconstitutionally vague and overbroad and fails to give notice to patrons of what is prohibited, the policy will be found unconstitutional. Armstrong v. District of Columbia Public Library, 154 F. Supp.2d 67(D.C. 2001).  For example, the District of Columbia federal court decided in 2001 that a policy which prohibited patrons from having an “objectionable appearance (barefooted, bare-chested, body odor, filthy clothing, etc.)” and that provide that a patron could be ejected if he “interferes with the orderly provision of library services” was unconstitutionally vague because there was no objective way to interpret and enforce the rule.

Suspension or Termination of Library Privileges

When the suspension or termination of library privileges is contemplated, a hearing must take place to provide due process to the patron.  To avoid claims of First Amendment violations, all behavior polices should provide that patrons who are subject to suspension or banishment must have an opportunity for a pre-deprivation hearing before the Library Director (or her designee), and a post-deprivation hearing before the Library Board. The policy should require a written notice stating which policy was violated, the way in which the policy was violated, the resulting staff decision regarding the length of the suspension or banishment, and that notice be given informing the patron of the process for requesting a hearing before the Library Board.

A post-deprivation hearing takes place after a patron’s access to the library is cutoff.  Doyle v. Clark County Public Library, 2007 WL 2407051 (S.D. Ohio 2007).  A library must ensure that a post-deprivation hearing requires, at a minimum, that notice of the charges against patron be given in a timely manner, an opportunity for the patron to see all the evidence of his wrongdoing, and a hearing for the patron before the ultimate decision maker.

Enacting and closely following library policies regarding suspension or termination of library privileges is very important, as at least one court has held that terminating a patron’s right to use computers in a library “is at least as significant a deprivation as a 10-day suspension from school” and the patron may therefore sue a library if the procedures for termination of computer use privileges are not properly enacted or followed.  Miller v. Northwest Region Library Board, 348 F.Supp.2d 563, 571 (M.D. N.C. 2004).  In Miller a patron’s internet use rights were terminated after a librarian observed nude women on the computer screen he was using.  The patron claimed that the photo popped up without his permission.  The librarian terminated his privileges permanently and the patron sued in federal court, claiming that he had a right to access information in the library under the First Amendment, which included the use of library computers.  The library asked the court to dismiss the case, arguing that any deprivation the patron suffered was too small to support his claims.  The court disagreed and allowed the case to move forward, noting that the right to access the internet in a library is a constitutionally protected right.

            As you can see, the First Amendment shapes the ways in which your library may restrict and direct patron behavior.  You should closely analyze your patron behavior policies in light of First Amendment principles to ensure that they do not infringe on your patrons’ rights.   

Kathleen T. Henn is a partner and Gregory T. Smith is an associate attorney 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 May 19, 2010 in vol. 4, iss. 10 [View]