Sunday, July 23, 2017

Civil and Criminal Liabilities for Libraries Related to Using or Failing to Use Internet Filtering Software or Other Content Screening Mechanisms

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Civil and Criminal Liabilities for Libraries Related to Using or Failing to Use Internet Filtering Software or Other Content Screening Mechanisms

Legal Memorandum
by Jenner & Block
August 1998
reprinted under US Copyright § 107 Fair Use
and obtained thanks to Archive.org

SUBJECT: Civil and Criminal Liabilities For Libraries Related to Using or Failing to Use Internet Filtering Software or Other Content Screening Mechanisms

The American Library Association has asked us to prepare a memorandum summarizing the potential liability if a public library uses filtering software or other content screening mechanisms for Internet access, or decides not to use filtering software or other content screening mechanisms.

Before we begin that analysis, we must caution that this memorandum is merely a general discussion of these issues, and is not an opinion letter. Because laws differ from state to state, this memorandum necessarily cannot serve as the basis for legal judgments for any library deciding whether to use filtering software or other content screening mechanisms. Additionally, the law related to Internet use and filtering is changing rapidly as new legislation is adopted and new court challenges are filed. Libraries that offer Internet access should seek legal advice for an analysis of their own particular situation and the current laws of their own state and jurisdiction.

In Reno v. American Civil Liberties Union,117 S.Ct. 2329 (1997), the United States Supreme Court held unanimously that the governmentcould not criminalize the "display" on the Internet of material that would be "indecent" or "patently offensive" for minors, because such a ban would restrict adult access to constitutionally protected material. The Supreme Court held that the Communications Decency Act was unconstitutional because the government had failed to demonstrate that less restrictive alternatives were unavailable, such as user-based filtering software that parents could use to block or filter their child's access to certain materials.

In some jurisdictions, government authorities are now mandating use of such filtering software by libraries, sometimes out of concern that libraries will be liable under existing statutes if a minor accesses material deemed "obscene," "indecent," or "harmful to minors." The use of filtering software by public libraries rather than by parents raises serious First Amendment concerns.

It is important to note that this memorandum is a discussion merely of potential liability. There are no final, definitive judicial rulings at this time. These issues are percolating throughout the country. Indeed, the Library Board of Trustees in Loudoun County, Virginia was sued on December 23, 1997 for installing filtering software on library computers. A patron has sued the Free Library of Philadelphia on the ground that Internet screening practices interfere with his First Amendment rights. There is likely to be further litigation in other jurisdictions.

There is a serious risk that libraries will be found to have violated the First Amendment if they use filtering software to prevent access to constitutionally protected speech. Given that serious risk, libraries in jurisdictions where "harmful to minors" statutes exist must work with state and local legislatures to ensure that they can protect important First Amendment rights while at the same time avoiding potential civil or criminal liability.
  1. CIVIL LIABILITY FOR INSTALLING FILTERING SOFTWARE ON LIBRARY COMPUTERS

    Many courts have held that public libraries are limited public fora, open to the public for "the communication of the written word."1 The First Amendment prohibits the state from discriminating based on content in public fora unless it can demonstrate that the restriction is necessary to achieve a "compelling" government interest and there are no less restrictive alternatives for achieving that interest.2 Thus, libraries cannot ban books on abortion, even if the ban encompassed both books supporting and opposing abortion, because the ban would be based on the content of the material, i.e., the subject of abortion (rather than other content-neutral criteria such as quality of writing, placement on best sellers' lists, etc.).3 Filtering and other screening mechanisms are, at the least, "content-based" because the filter is based on the sexual, violent or other (presumed) content of the material, and they are often "viewpoint" based because they block certain viewpoints (i.e., anti-semitic speech). These mechanisms can only be utilized, therefore, if the government (in this case, the library) can demonstrate both a compelling need and that the means utilized is the least restrictive means available to achieve that purpose. In a recent challenge to filtering software in Loudoun County, Virginia -- where the library has installed X-Stop filtering software on all terminals -- a district court held in a preliminary ruling that libraries are limited by the First Amendment in their ability to block patron access to the Internet. The Library Board had argued at oral argument that "a public library could constitutionally prohibit access to speech simply because it was authored by African- Americans, or because it espoused a particular political viewpoint, for example pro-Republican." Feb. 27, 1998 Hearing Transcript at 48. The district court rejected that argument, holding that "the First Amendment applies to, and limits, the discretion of a public library to place content-based restrictions on access to constitutionally protected materials within its collection." Slip Opinion at 26. The district court held:
    By purchasing Internet access, each Loudoun library has made all Internet publications instantly accessible to its patrons. Unlike an Interlibrary loan or outright book purchase, no appreciable expenditure of library time or resources is required to make a particular Internet publication available to a library patron. In contrast, a library must actually expend resources to restrict Internet access to a publication that is otherwise immediately available. In effect, by purchasing one such publication, the library has purchased them all. The Internet therefore more closely resembles plaintiffs' analogy of a collection of encyclopedias from which defendants have laboriously redacted portions deemed unfit for library patrons. As such, the Library Board's action is more appropriately characterized as a removal decision. We therefore conclude that the principles discussed in the . . . [Board of Education v. Pico, 457 U.S. 853 (1982)], plurality are relevant and apply to the Library Board's decision to promulgate and enforce the Policy.
    Slip Opinion at 23.
    The following are various options libraries are considering and some of the potential liabilities associated with each.
    1. Library uses commercially available blocking software to block broad categories of material on all terminals.

      Commercially available blocking software typically blocks broad categories of materials, including materials that are not obscene and do not constitute child pornography and thus are protected by the First Amendment. Adult users could successfully sue public libraries who use filtering software on all terminals because the software would prevent adults from accessing constitutionally protected material. In concluding that the Communications Decency Act was unconstitutional, the Supreme Court held:
      It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. . . . But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not "reduc[e] the adult population . . . to . . . only what is fit for children."
      Reno v. A.C.L.U., 117 S.Ct. at 2346 (citations omitted). Thus, the use of filtering software is almost certain to be found unconstitutional if it prevents adults from accessing constitutionally protected material.

      Older minors also could sue on First Amendment grounds. Minors have First Amendment rights.4 Filtering software that broadly blocks access to content would almost certainly prevent minors from accessing material that has serious value and would be constitutionally protected for older minors, even if that material might be considered harmful and unprotected for younger minors. For example, the Fourth Circuit upheld a Virginia law restricting the display in newsstands of material deemed "harmful to minors" only after the Virginia Supreme Court had interpreted the law to exclude from its prohibition any material "found to have a serious literary, artistic, political or scientific value for a legitimate minority of normal, older adolescents."5 The Eleventh Circuit went even further, holding that a "harmful to minors" restriction could not constitutionally be applied to material in which "any reasonable minor, including a seventeen-year-old, would find serious value."6 Since there are almost certainly less restrictive means of keeping harmful material from young minors, see discussion below, courts would likely sustain an older minor's challenge to blanket use of filtering.

      Even younger minors could potentially sue on First Amendment grounds because filtering software would prevent them from accessing constitutionally protected material that is neither obscene nor "harmful" to anyminors. Commercially available software often restricts very broad categories of material. Thus, filtering software often blocks sites with the name "sex" or "breast." As a result, sites with information on "breast cancer" and "safe sex" might be blocked -- even though such sites plainly would not be "obscene," "indecent," or "patently offensive" (under most definitions) and plainly would contain constitutionally protected material for everyone.

    2. Library installs filtering software on all terminals with option for adults to request that software be turned off.

    3. Courts have suggested in some instances that requiring recipients to affirmatively request protected speech to which stigma might attach is unconstitutional. See generally Denver Area Telecommunications Consortium, Inc. v. Federal Communications Commission, 116 S.Ct. 2374 (1996). Proponents of filtering have argued that no stigma attaches if the adult must simply ask for unfiltered access rather than for access to a particular site. In fact, librarians have reported that patrons in their libraries plainly would be stigmatized by having to request unfiltered access, especially if they have to request access to particular sites. In the Loudoun County cases, the district court rejected the Library Board's argument that the ability of patrons to submit a written request to have a site unblocked eliminates any First Amendment problems. The court held that "the unblocking policy forces adult patrons to petition the Government for access to otherwise protected speech." Slip Opinion, at 35.

      Additionally, permitting adults to request that filtering or blocking be removed would not address the constitutional rights of minors for whom filtering would almost certainly block constitutionally protected material. As explained above, minors have First Amendment rights that could be violated by broadly applied filtering software.

    4. Library installs filtering software on terminals in children's section of library with unfiltered access on other terminals in library.

      Although under this scenario adults would have unfettered access to everything on the Internet, minors still could sue if they were banned from using the non-filtered terminals, because they would not have access to constitutionally protected material of serious value for minors. Because this area is untested, it is not certain whether a minor would be successful in such a suit.

      The Supreme Court long has recognized that minors enjoy First Amendment rights. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). It is also well established that minors' First Amendment rights include the right to receive information. Board of Education v. Pico, 457 U.S. 853 (1982) (plurality opinion). The First Amendment rights of minors are limited in two ways. First, the Supreme Court has held that school officials have significant latitude, in the context of curriculum decisions, to restrict the rights of minors.7 Of course, that curriculum rationale would not extend to officials at public libraries or, presumably, school libraries. Unlike classrooms, libraries serve to provide the community with a broad array of information and are not entrusted with fulfilling specific educational goals, or with inculcating values.

      Second, the rights of minors also are limited to the extent that states may deem certain materials "obscene" for minors even if the materials are not deemed "obscene" for adults.8 Accordingly, most states have enacted "harmful to minors" statutes in an attempt to restrict minors' access to materials that would be protected by the First Amendment for adults. There are, however, limits on restricting minors' access to "harmful" material. For example, the Supreme Court has made clear that states may not simply ban minors' exposure to a full category of speech, such as nudity, when only a subset of that category can plausibly be deemed "obscene" for them.9Additionally, some decisions have suggested that states must determine "obscenity" as to minors by reference to the entire population of minors -- including the oldest minors. Accordingly, any court that reviews a filtering policy would have to take minors' First Amendment rights into account.

    5. Library provides minors unfiltered access to Internet only with parental permission or provides unfiltered access only if the parents affirmatively object to filtered access.

      While some proponents of restricted Internet access have advocated that no minor should have unfiltered access to the Internet in a public library -- even if that minor's parent would permit such access -- others have proposed parental permission requirements in lieu of mandated filtering for every child. Parental permission requirements also pose significant constitutional concerns. Minors have some constitutional rights that exist regardless of whether their parents want them to exercise those rights. For example, even where states require parental notification or consent if a minor is seeking an abortion, those states have been required, as a constitutional matter, to provide a bypass mechanism for a young woman who demonstrates either that she is mature enough to make the decision herself or that parental notification is not in her best interests. Lambert v. Wicklund, 117 S. Ct. 1169 (1997). Surely the potential consequences of an abortion are far greater, and of more legitimate concern to parents, than the consequences of reading a website discussion about abortion.

      The American Library Association Library Bill of Rights recognizes that parents, not librarians, should be responsible for what their own children read or borrow from the library.10The Library Bill of Rights recognizes that librarians should not be in the position of determining what minors can and cannot read. Libraries and librarians should not be instruments of control over the reading selections of minors. Of course, it also is not technologically or administratively possible for libraries to install the infinite range of filtering mechanisms that would be needed to reflect the range of parental choices regarding what would be appropriate for their children. Some parents might want their children to have unlimited access to the Internet; others might want their children to have no access. Some parents might want to filter all "sexual" materials, but nothing else; others might want to filter all "violent" materials, but nothing else. Some parents might want to filter any violence or sexual material; others might want to filter only "excessive" violence or sex. Some parents might want to filter all references to drugs; others might want to filter all references to political information. Obviously, in the context of Internet access, the ALA's policy supporting parental control does little to answer the difficult questions libraries must confront. Libraries will of necessity be forced to make whatever filtering decisions they deem most consistent with the primary library mission of providing access to a broad and diverse range of materials.

      But although libraries cannot provide whatever filtering options individual parents might desire, librarians certainly can facilitate parental decision-making by providing clear notification to parents about whatever choices the library has made regarding Internet use and filtering. Thus, for example, if parents are notified that a particular public library has decided to offer unfiltered access to the Internet for all patrons regardless of age, parents can decide not to send their own minor children to the library, or could decide to accompany their children to the library.

      There are no judicial cases addressing the constitutionality of parental permission requirements for unrestricted Internet access. Thus, imposing parental permission requirements could subject a public library to lawsuit alleging that such requirements infringe minors' First Amendment rights.

    6. The Academic Library

      Different standards likely will apply in academic library settings as opposed to public library settings. Academic libraries will certainly be given greater latitude than public libraries, on the basis of educational objectives, when restricting access. In Loving v. Boren, 1997 U.S. Dist. Lexis 2921 (W.D. Ok. Jan. 28, 1997), a district judge approved the University of Oklahoma's segregation on its news server of certain newsgroups the university believed might contain obscenity. The university makes the excised newsgroups available only to adults who state that they are using the material for academic or research purposes. Although Loving did not thoroughly address the many difficult First Amendment issues surrounding filtering or access restriction, and is therefore not a strong precedent, the court found that the First Amendment did not prevent the university from allowing access to newsgroups only for "the very [purposes] for which the system was purchased." Id. at *6. It also found that the university computers are not a public forum, see ibid., a finding that may limit the decision's relevance for public libraries and that suggests that some courts might treat public libraries and school libraries differently.

      In Urofsky v. Allen, 1998 U.S. Dist. Lexis 2139 (E.D. Va. Feb. 26, 1998), Virginia had enacted a law prohibiting state employees from using state-provided computers to access sexually explicit content on the Internet. The law allowed agency heads to grant waivers in cases where an employee's work required access to forbidden material; information about all waivers would be available to the public. Several state university professors challenged the Act, claiming it interfered with their research. Judge Leonie M. Brinkema (the same judge presiding over the Mainstream Loudoun case) struck down the law on First Amendment grounds. Judge Brinkema analyzed the law as a mass restriction on public employee speech; accordingly, she applied the balancing test of Pickering v. Board of Educ., 391 U.S. 563 (1968), as modified by United States v. National Treasury Employees Union, 513 U.S. 454 (1995). She concluded that the law significantly burdened public employees' access to information and the public's right to benefit from public employees' use of that information in their work. On the other side of the balance, Judge Brinkema found the law both overinclusive and underinclusive as to the government's stated interests of preventing workplace distractions and avoiding hostile work environments, and she noted the existence of content-neutral alternatives to serve those interests. She dismissed the waiver process as unduly stringent, designed to intimidate agency heads into denying waivers, and unworkable in practice.

    1. CIVIL LIABILITY FOR INSTALLING FILTERING SOFTWARE THAT FAILS TO FILTER OBSCENE MATERIAL OR MATERIAL DEEMED HARMFUL TO MINORS

      The use of filtering software also might subject libraries to other types of litigation. If a library uses filtering software and a minor is nevertheless able to access obscene or "harmful" material on the Internet, a parent might sue the library for failing to "protect" the minor. Although the parent ultimately may be unsuccessful in demonstrating that the library had a duty to "protect" the minor from accessing certain materials on library computer screens, or that the minor was actually harmed by such exposure, the litigation itself would be costly and time-consuming.

      In the context of interpreting the provisions of the Communications Decency Act, some groups took the position that the "good Samaritan" provision of that Act would provide blanket immunity from civil liability for anyone who, in good faith, uses filtering in order to protect children from inappropriate material. This theory is untested. A library contemplating the use of filtering software should, therefore, seek the advice of legal counsel to determine whether state "harmful to minors" statutes provide such protection from civil suit for the failure of filtering software to filter out material later deemed to be harmful to minors. There also remains the unanswered question of how much filtering is sufficient to provide blanket immunity to the library. Must the library filter out material that would be deemed harmful for all minors or only for young minors? Neither the courts nor the legislatures have answered this question.

    2. CIVIL LIABILITY FOR FAILURE TO USE FILTERING SOFTWARE

      There is also the potential that a parent might sue a library that fails to use filtering software, alleging that his or her child was harmed by being able to access obscene or harmful material from the Internet through library computers. It is not clear whether the tort law of any state would impose a duty on the library to protect minors from harmful material in the library. Nor is it at all certain that a parent suing the library could demonstrate that actual harm occurred because of such Internet access. Laws will differ from jurisdiction to jurisdiction. Libraries must seek legal advice in their own jurisdictions to determine whether such civil liability exists.

      Although there are no guaranteed methods for avoiding civil liability, it would be prudent for libraries to take the following precautions in order to foster positive community relations with patrons and to alert patrons to library policies. Libraries should post their Internet policies in a clear and conspicuous manner, thereby alerting parents to the fact that filtering software is not used (if that is the case). Libraries should offer minors access to Internet sites and direct links to sites developed for children, thereby reducing the already slight chance that a minor would accidentally access any obscene or harmful material.11 Libraries can also adopt and conspicuously publicize a clear policy statement -- posted at computer terminals with Internet links -- that library policy prohibits the use of library equipment to access material that is obscene, child pornography (or, in the case of minors, harmful to minors).

    3. CRIMINAL LIABILITY FOR FAILURE TO USE FILTERING SOFTWARE UNDER OBSCENITY, CHILD PORNOGRAPHY AND HARMFUL TO MINORS STATUTES 

      States prohibit the distribution of obscenity and child pornography. Such material is also prohibited by federal criminal statutes. In many jurisdictions, it also violates state statutes to display material that is deemed "harmful to minors." State statutes governing obscenity, child pornography and "harmful to minors" material differ from jurisdiction to jurisdiction. Some jurisdictions provide a library exemption. Others do not. Many libraries are concerned that the existence of obscenity, child pornography and "harmful to minors" statutes requires them to use filtering software to limit their potential criminal liability under such statutes. Librarians in such jurisdictions must carefully examine their potential liability. However, it is far from certain that such statutes would apply in the context of Internet access from a library computer.

      First, such statutes will have scienter requirements. In other words, these criminal statutes will require some "knowledge" on the part of the accused. The library must determine whether the criminal obscenity, child pornography and harmful to minors statutes in its jurisdiction require that the library "know" that harmful material or obscene material was displayed to minors, or whether it would be sufficient to impose liability simply because the defendant failed to take reasonable precautions to prevent the display of such material to minors. The library must explore with counsel whether it would be sufficient to provide notice to Internet users that the library facilities may not be used to access illegal material, and that the privilege of using the Internet at the library is subject to being revoked if the policy against accessing illegal materials is violated.

      Second, the library must seek legal advice to determine whether the definitions governing criminal conduct are vague or overbroad. If the statute does not provide a clear definition for the type of material that would be deemed obscene or "harmful" to minors, then the library probably could not be held liable for violating the statute.

      Third, the library must determine whether the obscenity, child pornography and harmful to minors statutes in its jurisdiction apply to Internet displays. The library must determine whether providing access to the Internet is sufficient to satisfy "display" or "distribution" criteria in the criminal statutes.

      Finally, in some jurisdictions, a library can avoid criminal liability by taking "reasonable precautions" to prevent the display of "harmful" or obscene material to minors. Arguably, under such statutes there must be precautions short of resorting to filtering software that would be deemed reasonable because, as explained above, using filtering software for all patrons would almost certainly result in First Amendment violations. This is, however, an untested area. We would suggest, therefore, that libraries vigorously urge their legislators and municipal leaders to draft legislation that provides libraries with exemptions from liability under criminal statutes.

      While legislative efforts are pending, libraries also should consider seeking Attorney General opinions to clarify the extent of their obligations under obscenity, child pornography and harmful to minors statutes. Libraries -- perhaps through their State Library Associations -- can ask the Attorney General of their state to interpret their obligations under their criminal statutes. Libraries can ask for guidance on how to take reasonable precautions that protect the library from criminal liability, but do not put the library in the position of violating the First Amendment rights of its patrons. Although such opinions generally are only advisory and not binding on courts, they certainly will provide the library with useful guidance and will allow the library to show that it was acting in a good faith effort to comply with all statutory and constitutional obligations.

    4. CIVIL LIABILITY FOR AN ALLEGED HOSTILE WORK ENVIRONMENT RELATED TO PATRON OR EMPLOYEE INTERNET USE 

      Federal civil rights laws afford employees the "right to work in an environment free from discriminatory intimidation, ridicule and insult." Meritor Savings Bank FSB v. Vinson, 477 U.S. 63, 65 (1986). The argument has been made that Internet access to materials that are offensive due to their sexually explicit nature or their messages regarding race and ethnicity may subject the library to liability for creating a hostile work environment for its employees. Employers can be subject to liability for the actions of their employees in creating a hostile work environment for another employee. Courts recently have held that an employer can be held liable for the actions of a customer or non-employee when the employer ratifies or acquiesces in harassing behavior by failing to take prompt remedial action and the employer knew or should have known of the offending behavior.12

      It is a fundamental principle of First Amendment jurisprudence, however, that a person has a constitutional right to send and receive non-obscene material that may be offensive to others. The government cannot ban speech merely because it is offensive. Libraries thus have the obligation both to provide a non-hostile work environment, and also to insure that patrons and employees can fully exercise their constitutional rights. There is very little guidance from the courts on how these potentially conflicting responsibilities can be resolved.

      These issues can, of course, arise regardless of whether the Internet is involved. An employee or patron can bring materials from outside the library to harass an employee of the library. There are several principles that a library must consider in determining what policy is necessary. First, in determining whether behavior is harassment, a court will look to whether it is physically threatening or humiliating, or merely an offensive utterance, and whether it unreasonably interferes with the victim's work. Courts have held that where sexually explicit material was for private use only, read only in private places or shared consensually, the prohibition on possessing such material in the workplace in furtherance of a sexual harassment policy violated the reader's First Amendment rights. Johnson v. County of Los Angeles Fire Dep't, 865 F. Supp. 1430 (C.D. Cal. 1994). A court thus should conclude that an image on an Internet screen alone does not create a hostile work environment for the librarian that happens to see the screen. A hostile work environment might be created, however, if the patron taunted a library employee with images on the Internet screen or left printed images of the materials with the librarian for the purpose of harassing that employee.

      Second, there are some steps a library can take to minimize its potential liability. For example, a library should adopt a policy making clear that the library does not condone, encourage or tolerate the harassment of employees by other employees or by patrons through the use of any means, whether or not those means include images from the Internet. The library also should establish a procedure for immediately addressing complaints of a hostile work environment by an employee. Such complaints should without delay be directed for investigation to an employment counselor or legal counsel. Finally, the library can take steps to minimize the exposure of employees to images from the Internet that might be deemed offensive by placing Internet terminals in more private areas of the library.

      Filtering would not, however, appear to be the solution to this problem. Filtering cannot guarantee that offensive material will be blocked. Nor can filters prevent employees or patrons from using other materials to harass an employee. The obligation of the library as employer to provide its employees with a non-hostile work environment extends beyond the Internet.

      ********

      The use of currently available filtering software by public libraries poses serious First Amendment concerns because such filtering would almost certainly restrict adults, older minors or even younger minors from constitutionally protected material.

    1Kreimer v. Bureau of Police, 958 F.2d 1242, 1259 (3d Cir. 1992); see also Concerned Women for America, Inc. v. Lafayette County, 883 F.2d 32, 34 (5th Cir. 1989) (library auditorium); Wayfield v. Town of Tisbury, 925 F. Supp. 880, 884-85 (D. Mass. 1996) (holding that state law created a due process right of access to library); Brinkmeier v. City of Freeport, 1993 U.S. Dist. Lexis 9255, *10 (N.D. Ill. July 2, 1993); but see AFSCME Local 2477 v. Billington, 740 F. Supp. 1, 7 (D.D.C. 1990) (holding Library of Congress not a public forum).

    2Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983).

    3Banning material because of viewpoint would be unconstitutional not only in a public forum, but also in a non-public forum. R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545-46 (1992)City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1994).

    4Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 511 (1969) (affirming minors' First Amendment rights).

    5American Booksellers Ass'n v. Virginia, 882 F.2d 125, 127 (4th Cir. 1989) (quoting Commonwealth v. American Booksellers Ass'n, 372 S.E.2d 618, 624 (Va. 1988)) cert. denied, 494 U.S. 1056 (1990).

    6American Booksellers v. Webb, 919 F.2d 1493, 1504-05 & n.20 (11th Cir. 1990) cert. denied, 500 U.S. 942 (1991). (emphasis added).

    7Board of Education v. Pico, 457 U.S. 853, 871 (1982)Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

    8Ginsberg v. New York, 390 U.S. 629(1968).

    9Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-14.

    10Free Access to Libraries for Minors, An Interpretation of the LIBRARY BILL OF RIGHTS (providing that "[l]ibrarians and governing bodies should maintain that parents -- and only parents -- have the right and the responsibility to restrict the access of their children -- and only their children -- to library resources").

    11Of course, libraries should use care in selecting the sites to which children are directed because the risk to the library would increase substantially if those sites contained material that would be obscene or harmful to minors. The American Library Association recently compiled a list of sites for children at http://www.ala.org/parentspage/greatsites.

    12See, e.g., Rodrigues-Hernandez v. Miranda-Velez, 132 F.3d 848 (1st Cir. 1998); Folkerson v. Circus Circus Enterprises, Inc., 107 F.3d 754 (9th Cir. 1997); Powell v. Las Vegas Hilton Corp., 841 F. Supp. 1024 (D.Nev. 1992).


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Monday, July 17, 2017

Staff Harassment by Patrons: Why Administrators Flinch

Staff Harassment by Patrons: Why Administrators Flinch

by Nancy Milnor Smith
American Libraries 25:4, April 1994, p316
reprinted under US Copyright § 107 Fair Use

Supervisors are trying to duck the issue of increased abuse of their staff.

Click graphic for full view.

Will Manley's columns in the July/August through October 1993 American Libraries on sexual harassment of staff by patrons, as well as my observations of what my staff suffers in this area, have led me to take a hard look at the environment in which public library service must now be carried out and what effect it is having on library staff and leadership.

Although Manley's survey is admittedly not a scientific one, the responses it provoked indicate clearly that public service staff in many libraries cannot rely on their administrators to protect them from harassment. In fact, many respondents reported that their supervisors gave strong signals that they do not even want such harassment reported to them. When I read about these attitudes, I was both appalled and filled with wonder (in both meanings of the word) that so many administrators are reluctant to try to protect their employees.

In his September column (p. 756), Manley posits several reasons for this reluctance to act, from isolation from reality to fear of publicity, but I think he gets at the crux of the problem when he says, "There is a natural tendency for people to endure a difficult problem rather than face the pain and trouble of solving it." However, I believe that the problem is more complex than the cliched "ignore it and it will go away" reaction.

When I started to work as a reference librarian in a public library in 1976, there was an occasional "odd person" hanging around, and the "peeper" has been with us since the first library door opened. Even so, I did not feel threatened when I was at the reference desk. I believe that as our society has turned increasingly dysfunctional the situation of the reference librarian has changed to a marked degree. The "problem patron" who in the mid-70s was a mere annoyance is now often perceived as a real threat. Many of the people who walk through the doors of public libraries today are frightening in aspect and behavior and appear to be deranged. They are victims of homelessness, hopelessness, unemployment, or a mental health system that has abandoned them. Following them across the threshold are twisted men from all walks of life who apparently believe that any woman in a public place is offering herself for their delectation.

Threats of all kinds


In addition, public service staff must also endure people who believe they have the right to be verbally abusive if they are simply not pleased. It must not be forgotten that harassment is not only sexual in nature -- the perception of a possible threat to one's life is more distressing to most people than a threat to one's virtue, and foul language is an assault weapon in its effect on some people. Both physical and psychological well-being are impinged upon. Reference staff (and other public service staff), who are harassed and feel threatened frequently, are all too aware of random acts of violence against librarians that have occurred in recent years. Most administrators know this; so why do they turn their backs on this knowledge?

Perhaps many administrators do not want specific incidences of the problem reported to them because they do not know how to solve the problem. Their impotence makes them feel frustrated and vulnerable as managers; thus they would rather not be reminded of the problem they cannot solve.

I do not shrink from confronting the harassment problems that are reported to me, and I am willing to use all legal means available to thwart harassment of my staff, but I cannot provide a completely comfortable or truly safe environment in which to work. I cannot make the majority of people walking through the doors kind, gentle, and in possession of all their faculties: and I cannot, until they commit some illegal act, keep out those who are not. And I know that therefore I cannot alleviate the state of anxiety that my public service staff functions in. This realization causes me to have constant anxiety and even feelings of guilt. Guilt is perhaps the most difficult human emotion to cope with, and thus we all try to avoid situations that bring it on. I particularly hate contemplating a scenario in which things get worse in our society and thus in our libraries, but I see no indications that they are going to improve.

If things do get worse -- if the guns begin to be toted by preschoolers and no adult stranger is to be trusted within an arm's reach -- what will public libraries be like? Will we deliver reference materials and information from behind bullet-proof screens? Will pages have to be accompanied by armed guards while they put books, videos, and CDs back on the shelves? Will the reluctance of librarians to be in the physical presence of patrons spur the move to delivery of information by electronic means? I can envision librarians sitting at terminals in a locked room, with the public service areas of libraries occupied by banks of other terminals, reminiscent of the TV ad in which the poor bank customer inquiring about a loan finds that the only communication available to him is video images.

This may be scoffed at by some as a science fiction scenario, but I do not believe that's necessarily the case. Many of those librarians who responded to Manley's survey would be happy, right now, today, to have a protective screen between them and the patrons they serve. Administrators cannot presently provide any type of screen, except that of whatever security system is in place -- and even that is nonexistent in many libraries.

I do not know what administrators may eventually be forced to do to protect their employees from an increasingly threatening environment; but along with TQM and surfing the Internet, it is something we must think about. We cannot hide from it by refusing to acknowledge the problem. That is not a satisfactory response and those who resort to it need to be made to know that. This issue needs to be placed at the top of the agenda of concerns to be discussed by the profession at its gatherings, and it has to become part of the management milieu.

~~~~~~~~

Nancy Milnor Smith is executive director of the Rosenberg Library in Galveston, Tex. She has served as a public library administrator for 12 years in four different states and has dealt repeatedly with sexual harassment of staff by patrons.

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Monday, July 10, 2017

Survey: Sexual Harassment of Librarians


Civitello and McLain reported that during their research on the topic they found few articles written about the matter in the last 10 to 20 years: it appears for the most part that the ALA has ignored this subject or aggressively tried to pretend that it's not happening and these female employees are not being sexually harassed in the workplace.
....
Civitello and McLain conducted a survey of library employees that produced interesting results, obtained via FOIA production.
.... 
One day library employees are going to band together and start suing the libraries that allow this abuse to fester and taxpayers are going to be stuck with the bill for all of those lawsuits.
.... 

Download the survey reference documents here:
Part 1  –  Part 2  –  Part 3  –  Part 4

Saturday, April 1, 2017

FOIA Requests Seek Documents on Sexually Harassed Librarians

Here are rare FOIA requests seeking documents on sexually harassed librarians:

If you are a sexually harassed librarian, I will FOIA any library for you.  Simply contact me and I'll keep your confidentiality and anonymity in place.  

American Library Association will not help you.  ALA people will actively work to silence you, like Michael Sauers did.  

I will try to help you.  I may be the only person who will at least try.  Basically, I will file FOIA requests and I will publish any response and any other information I am provided or that my research uncovers.  

In a profession so bent on free speech, sexually harassed librarians are intentionally censored out.  Let me help you overcome that hurdle, that censorship.  I may be the only person willing to listen without being judgmental, and I'm willing to help.

Thursday, January 19, 2017

EEOC Seeks Input on Sexual Harassment Enforcement

The United States Equal Employment Opportunity Commission [EEOC] seeks public input on Proposed Enforcement Guidance on Unlawful Harassment.  Comments will be accepted thru 9 February 2017.

Librarians, here is a possible chance to speak directly to the EEOC about your libraries.  And I'll do it for you if you wish to remain anonymous.

Are you working in a sexually hostile environment as a result of unfiltered Internet computers and all the porn being viewed there?  Has your management ignored you because American Library Association [ALA] misled them that Internet pornography is a First Amendment right in public libraries?  Are you afraid to loss your job for speaking up about the problem?  Have you spoken up and been told to shut up or quit?  Have you shut up or quit?  Now's your chance to have a say, directly to the EEOC.

See:

WASHINGTON - The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has voted to release for public input a proposed enforcement guidance addressing unlawful harassment under the federal employment discrimination laws. The proposed Enforcement Guidance on Unlawful Harassment is available for input until Feb. 9, 2017 at https://www.regulations.gov/docket?D=EEOC-2016-0009.

    This proposed guidance, which is the product of extensive research, analysis, and deliberation, explains the legal standards applicable to harassment claims under federal employment discrimination laws. The laws enforced by EEOC protect individuals from harassment based on race, color, religion, sex, national origin, disability, age, or genetic information.
      ....
        "Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the actions they can take today to prevent and address harassment in their workplaces," said Chair Jenny R. Yang. "The Commission looks forward to hearing public input on the proposed enforcement guidance."
        Remember, ALA will not help you because it is the cause of the problem:


        Should I respond, I'll post my response in a future publication here.

        Should anyone wish to respond anonymously, send me what you would like to submit and I'll submit it for you while omitting your identity, contact information, and any substantive information that might identify you.

        Sunday, January 8, 2017

        The Dog Not Barking: Sexual Harassment of Librarians

        I want my readers to understand the American Library Association [ALA] intentionally hides the dog not barking when it advises local communities, namely, the sexual harassment of librarians and library employees.  I provide as evidence a recent news story where ALA is misleading yet another community, potentially leaving its library employees and librarians to work in a sexually hostile work environment.  Instead of writing more, read the letter I am sending to the library, local government and local media:

        sbrown2@townofchapelhill.org

        mayorandcouncil@townofchapelhill.org; library@townofchapelhill.org; tgrubb@newsobserver.com; news@heraldsun.com

        Dear Chapel Hill Public Library Director Susan Brown,

        I’m Dan Kleinman of SafeLibraries and I have information for you, the library board, and the town council to consider regarding library Internet filters and how they are negatively portrayed by the American Library Association [ALA].  My opinion will be based on over a decade of my activity in this area and on the Durham Herald-Sun article entitled, “Chapel Hill Town Council to Ponder Online Filter at Library,” by Tammy Grubb, 7 January 2017 ( http://www.heraldsun.com/news/chapel-hill-town-council-to-ponder-online-filter-at-library/article_9e8aea20-d513-11e6-b7ed-0bbaff37e801.html ).  When linking to sources on my own publications, I merely provide a convenient means to present primary source material for your consideration, such as the video of a library employee speaking out about the sexual harassment she suffered as a result of the library’s adherence to ALA policy that allowed a hostile work environment instead of adhering to the law; management told her don’t let the door hit you on the way out if you don’t like it.

        First, a member of the Federal Communications Commission [FCC] has said library Internet filters work well and libraries not using them should reconsider past decisions to not use them.  I have written about this here: “FCC: Library Filters Work, Having Them is a Community Decision, and Libraries Should Revisit CIPA Filters Due to Technological Advances” ( http://safelibraries.blogspot.com/2014/08/visser.html ).

        Second, former American Library Association President Carla Hayden, testifying before US Congress before being confirmed as Librarian of Congress, said filters work well and libraries should block Internet pornography.  I have written about this here:  “Librarian of Congress Nominee Carla Hayden Misleads Congress But Speaks Truth About Filtering” ( http://safelibraries.blogspot.com/2016/05/carla-hayden.html ).

        Third, even ALA leadership itself admitted library filters work well and no longer block “breast cancer,” for example, when forced into it by a National Public Radio [NPR] affiliate in response to a court deciding libraries need not unblock porn sites for patrons: “ALA Admits Library Filters Work; Barbara Jones Bursts Her Own Breast Cancer Bubble” ( http://safelibraries.blogspot.com/2012/02/ala-admits-library-filters-work-barbara.html ).

        This is remarkable as just a week before ALA wrote in the Huffington Post that filters block “breast cancer.”  Only when forced into it on an NPR affiliate did the truth come out.  This is a 100% turnaround in only a week, and it only came about only after ALA was publicly challenged.  This is an example of why ALA refuses to participate in any public challenges of its harmful policies (but is happy to have the media blindly repeat them).

        Fourth, the US Supreme Court ruled against the American Library Association on the issue of library filters.  In 2003, US v. ALA held that there is no First Amendment protection for viewing Internet pornography in public libraries since libraries have traditionally blocked porn ( http://caselaw.findlaw.com/us-supreme-court/539/194.html ).  ALA, having lost this case, misleads people by intentionally not talking about porn as US v. ALA did repeatedly but instead calling it “constitutionally protected material.” Yes, Internet porn is indeed constitutionally protected material, but SCOTUS ruled that is not the case in public libraries.  And notice in the Durham Herald-Sun article ALA is using this same deception to mislead your own community: “The American Library Association does not recommend Internet filters, saying they can block ‘constitutionally protected speech, including content on social networking and gaming sites, compromises First Amendment freedoms and the core values of librarianship.’”

        Those “core values of librarianship” are not the core values of any community.  The “core values” include that it is “age” discrimination to keep children from reading any material whatsoever.  It’s in ALA’s so-called “Library Bill of Rights,” as if it were some kind of document of national importance.  Yet obviously communities think it perfectly appropriate to protect themselves including their children from inappropriate material.  As the Court in US v. ALA put it, “The interest in protecting young library users from material inappropriate for minors is legitimate, and even compelling, as all Members of the Court appear to agree” ( http://caselaw.findlaw.com/us-supreme-court/539/194.html ).  So the “core values of librarianship” are not the core values of anyone else.

        Fifth, ALA uses a disgraced expert to claim filters do not work.  It even touts a recent report it had drafted on the topic, but the author of that merely cited to the disgraced expert’s work.  This is of relevance since ALA is now misleading your community on this point.  As the Durham Herald-Sun article states, “The association notes the software can be unreliable, blocking too much or too little content, and letting experienced computer users circumvent the filters.”  That comes from the disgraced expert.  You see, her work was conducted many years ago, at a point when filters really did cause trouble.  But times have changed, as the FCC and the Librarian of Congress have noted.  The disgraced expert’s work has not been updated.

        And I say disgraced because she is the only member of a three person team who did not apologize for making false claims of sexual harassment against a fellow librarian.  After a year and a half of harassment by those librarians, the man lost his career.  Two of the librarians admitted they lied and apologized, but ALA’s disgraced filtering expert never did, likely because that would call into question her false claims about library filtering, and she’s ALA’s one and only expert on the subject.  I have written about this here: “TeamHarpy Faked Sexual Harassment, Hurting True Efforts to Stop It” ( http://www.librarians.cc/2015/03/teamharpy-faked-sexual-harassment.html ); “RIP Nat Hentoff: He Exposed the Shame of the American Library Association” ( http://safelibraries.blogspot.com/2017/01/rip-nat-hentoff.html ).

        So, literally, ALA is misleading your community to think filters do not work based on old research by a woman who destroyed a man’s career with false claims of his being a “sexual predator.”

        In a more insidious way of misleading your community, ALA is not advising your community that library filters have vastly improved and even the FCC and the Librarian of Congress now say so.

        One can sense the reporter at the News & Observer could smell a rat since the next paragraph points to another library having no trouble at all with filters: “The Orange County Public Library hasn’t had any problems with its software, in place for several years, director Lucinda Munger said. The filters meet the minimum requirements, which can let offensive materials slip through, she said.”

        Sixth, there is also the question of state law.  Does your state law punish obscenity?  Are libraries exempt?  Does your state law have an exemption from sexually hostile work environments for public libraries?  Does your state law allow for the creation of public libraries for anything whatsoever or for the use and benefit of the public? Internet pornography is neither for the use nor for the benefit of the public. Providing Internet porn in libraries, the natural result of having no filters, may violate state law.  A library may be autonomous, but only to act within the law, not to exceed it.

        ALA has bullied its law-defying ways into many libraries.  Much harm has resulted from that, including the sexual harassment of librarians that ALA says never happened and never will.  I have written about this here: “Sexual Harassment of Librarians Never Happens; Child Pornography is Intellectual Freedom” ( http://safelibraries.blogspot.com/2014/12/sexual-harassment-of-librarians.html ).

        Indeed, ALA does not advise that a lack of Internet filtering can lead to legal actions against libraries and municipalities.  It’s like the dog not barking.  I would think knowing a lack of Internet filters may increase liability risks for taxpayers may be of interest to decision makers.  ALA is promoting its own policy by leaving out that libraries might be sued over sexual harassment caused by Internet porn-viewing patrons.  But such harassment occurs frequently and victims are often afraid to speak out.  Here’s a library employee/victim who spoke out, only after eight years after she quit, and I present video and a transcript: “Library Insider Linda Zec Gives Scoop on Porn in Libraries” ( http://www.librarians.cc/2015/01/linda-zec.html ).

        Conversely, ALA advises that blocking Internet pornography might lead to a library/municipality being sued.  That has never happened and never will, precisely because SCOTUS ruled there’s no First Amendment right to Internet porn in public libraries, there’s no free speech right to Internet porn in public libraries.  When I made that statement in the Chicago Tribune, ALA piped up to say I was false, that libraries have been sued for blocking porn, and gave as an example a legal case that was about blocking LGBT material but not porn.  ALA literally lied to make that statement because the same ALA leader just a year and a half earlier made a different statement about the same case.  As this shows, ALA will intentionally mislead to convince people to think whatever it wants them to think.  I have written about this here: “ALA Admits Libraries Have Never Been Sued for Blocking Porn” ( http://safelibraries.blogspot.com/2013/11/NeverBeenSued.html ); “ALA Misleads on Internet Pornography in Libraries” ( http://safelibraries.blogspot.com/2013/11/ALAMisleads.html ).

        So ALA advises libraries might be sued for blocking Internet porn, which will never happen, and leaves out that libraries and municipalities are indeed sued for failing to block Internet porn, thereby creating a hostile work environment.  It even scoffs at that idea after I forced it to discuss the issue, as I linked above.  Does anyone want to work in a hostile work environment that invites sexual harassment?  Yet ALA misleads communities into rationalizing why Internet filters should not be used in public libraries.  Do you want your community and your library employees, librarians, trustees, and patrons to be subjected to a sexually hostile work environment?  Of course not.

        Hopefully the words of the FCC and the Librarian of Congress will guide you instead of the misleading diktat of the ALA that is in part derived from an outdated and disgraced expert who lied and thereby destroyed a man’s career.  Hopefully you’ll think about what I said and decide to comply with the law and community standards, let alone common sense, instead of with ALA’s intentionally deceptive diktat.

        I’ll be happy to answer any questions, of course, from you or from those whom I have CC’d.  Feel free to write or call me at 973-610-8296.

        Dan Kleinman


        NOTE ADDED 25 JANUARY 2017:

        The town voted down the filters claiming, falsely, that certain words will prevent finding medical information: "'Certain words can cause you not to see an entire website that might have medical or pertinent information that you're researching,' said Chapel Hill Mayor Pam Hemminger:
        Well she's wrong, so I commented as follows:

        "'Certain words can cause you not to see an entire website that might have medical or pertinent information that you're researching,' said Chapel Hill Mayor Pam Hemminger."

        That is openly false and has been for years.

        Any harm that results from unfiltered Internet computers, including s3xually harassed librarians and library employees, can now be laid directly at the feet of the Chapel Hill government. That government should then be sued, as others have, to the full extent of the law. That mayor should be sued personally as well.

        Anyone reading this in the future needing help suing for damages, please contact me.

        That lady should be thrown out of office at the next election and replaced with someone who will comply with the law, common sense, and community standards.

        Evidence of community standards is as follows, a poll showing 84% favoring pornography filters:
        I'm considering using FOIA to find out what led this awful government to do exactly what the ALA wanted instead of what the community wanted and what the law states.


        NOTE ADDED 27 JANUARY 2017:

        I have filed the following FOIA request:

        Regarding the Mayor and others in the government who decided not to use Internet filters in the public library or who contributed in any way with the decision, I’ll call them “the government” either individually or as a group.  Media reported a decision was made by the government not to use Internet filters in the library, in part because words or phrases would cause the filters to block health information.  I’ll call that the “decision.”

        This FOIA request seeks all communications in all formats (letters, emails, social media messages private and public, tweets, audio recordings, etc.) sent to the government and responses from the government that pertain to the decision, laws relating to public libraries, or any other topic related to the decision, including communications to/from the library director, anyone else locally, anyone else nationwide, any group such as the American Library Association, or any filtering supply company.  No one should be excluded.

        Note this FOIA includes those CC’d and BCC’d on emails.  BBC is a convenience for the letter writer, not a means to evade FOIA.  Similarly, use of direct messages in social media is a convenience for the people involved, not a means to evade FOIA.

        Note that where a distribution list is used that is under the control of the government, the individual addresses/emails/identities/names contained in that distribution list is also requested via this FOIA request, whether that distribution list is used in the TO, CC, or BCC section of the relevant document.

        I also ask for all notes taken by the government as a result of reading or participating in the various communications, whether handwritten or electronically recorded, and for all written or verbal/audio directives to destroy such notes no matter who or what group made the directive.

        I am not asking for attorney-client privileged information.

        However, if a person is a lawyer, but no legitimate attorney-client relationship is present, then any FOIA response must include information from such a person.  I say this to be clear that communication cannot be withheld even if it comes from a lawyer, unless that lawyer is in a non-sham attorney-client relationship with the government.

        If any information is withheld on the basis of attorney-client privilege, please identify the name and address of the person having entered any attorney-client relationship with the government.

        Certainly the decision by the government was not made in a vacuum.  I know I, for example, sent you information on the issue.  I expect that to be including in the other information included in the FOIA response.  It’s only a single email from me and perhaps a tweet or two from @SafeLibraries so this should not be burdensome in the slightest.

        The information returned under this FOIA will be published by me on SafeLibraries and/or on Sexual Harassment of Librarians after my investigation.  This is a matter of public importance and public safety, so please waive any fees.

        I request that where possible the documents provided in response to the FOIA request be made available in PDF format, and all audio recordings be made in common audio formats such as MP3.  All should be provided as attachments to an email sent to SafeLibraries@gmail.com.

        Thank you very much.