SOCIAL MEDIA, LIBRARY MEETING ROOMS, AND THE

FIRST AMENDMENT.John Giacomantonio, Rising Third-Year Law Student at Indiana

University Maurer School of Law and Summer Legal Intern at the Indiana State Library

This presentation is legal information NOT legal advice.

A Word of Caution

• I am a law student intern, not a lawyer.

• That said, this presentation is to provide legal information NOT legal advice.

• If you have questions about how the law applies to your specific factual situation, discuss this with your lawyer.

• I will be happy to clarify points that I make in the presentation, but I cannot answer questions about facts specific to your library.

What will be covered?

• Overview of the first amendment

• Brief discussion of “forum analysis”

• Social Media

• Library Meeting Room Policies

• Library Bulletin Board/Display Policies

The First Amendment

A Brief Overview

First Amendment: Basics

• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.– http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

Protected Speech

• The first amendment, as courts interpret it, covers a broad array of speech ranging from the sacred to the profane.

• Courts are also concerned with vague or overbroad laws and policies that restrict speech.

• Even though the amendment says, “Congress shall make no law” the courts have acknowledged that not all speech is protected by the first amendment.

Does the first amendment protect all speech?

• “There are certain well defined and narrowly limited classes of speech . . . .”– The lewd and obscene– The libelous– Insulting or fighting words– Those that inflict injury or tend to incite an immediate

breach of the peace. • Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942).

• Some laws that restrict speech are allowable.• Courts often refer to these categories as

“unprotected” and are more receptive to government regulations.

Unprotected Speech

• Examples include:• Child Pornography – Call the Police

• A range of federal and state statutes outlaw this.– To view some of the federal laws prohibiting child pornography see,

http://www.justice.gov/criminal/ceos/citizensguide/citizensguide_porn.html

• Obscenity – This is a very narrow category• Miller v. California established a three-part definition of

obscenity. (Indiana adopts a similar formulation at IC 35-49-2-1).– Obscenity is not the same thing as nudity.

• Material Harmful to Minors• Federal law prohibits this in a variety of sections within the U.S.

Code. State law does as well.– To view some of the federal laws prohibiting obscenity and material harmful to minors see,

http://www.justice.gov/criminal/ceos/citizensguide/citizensguide_obscenity.html

Unprotected Speech

• Child Pornography: 18 USC 2256(8) (defining child pornography) other sections within that title criminalize the means of accessing, producing, or distributing child pornography, obscenity, and obscene depictions of children. See also, Ferber v. New York 458 U.S. 747 (1982). At the State level, I.C. 35-42-4-4 criminalizes child pornography.

• Obscenity: Miller v. California, 413 U.S. 15, 24 (1973) (defining a three-part obscenity test that asks “(a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”

• Material Harmful to Minors: At the federal level Congress has enacted legislation to prevent minors from exposure to obscene or harmful materials on the internet, see 47 U.S.C. 223(d) and 47 U.S.C. 231. see I.C. 35-49-2-2.

Forum Analysis

Protecting speech by location

Does where you speak matter?

• Traditional Public Forum– Any regulation must be content neutral and viewpoint neutral.

• Designated Public Forum– Government must have a an important interest in regulating the

speech and it must be both subject matter and viewpoint neutral

• Limited Public Forum– Restriction must be reasonable in light of the purpose served by the

forum and be viewpoint neutral.

• Nonpublic Forum– Government may regulate speech if the regulation is reasonable and

viewpoint neutral.

For an outline of forum doctrine see http://www.law.cornell.edu/wex/forums

Traditional Public Forums

• Content-based restrictions are allowed if they are necessary to a compelling state interest and are narrowly tailored for that purpose.

• Examples include streets and parks.

• But . . . a Supreme Court case said that sidewalks around a post office – because they were intended for customer traffic – were not a traditional public forum. See US v. Kokinda, 497 US 720, 727-28 (1990) (Justice Kennedy, however, thought it was not necessary to decide whether the sidewalk was a nonpublic forum 497 US 720, 738).

Designated Public Forum

• These are forums that the government opens to expressive activity

• Examples include university buildings, municipal auditoriums, and school-board meetings.

• An example of a designated public forum is a State university opening its facilities to registered student groups. If the university did so, it cannot discriminate against student groups on the basis of content. Widmar v. Vincent 454 US 263 (1981).

Limited Public Forum

• Forums opened for specific groups or for discussion of specific topics.

• Very tricky category.

• A recent court decision has stated it this way: “Governmental entities establish limited public forums by opening property ‘limited to use by certain groups or dedicated solely to the discussion of certain subjects’ . . . in such a forum, a governmental entity may impose restrictions on speech that are reasonable and viewpoint neutral.”– Christian Legal Society v. Martinez 130 S. Ct, 2971, 2984 (2010).

Nonpublic Forum

• “In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.” Perry Educator’s Association v. Perry Local Educator’s Association, 460 U.S. 37, 46 (1983).

• No viewpoint discrimination but overall the government has more latitude to regulate speech in this category.

Social Media

Speech on the Internet

Social Media

• These tools are great for interaction, dialogue, and outreach with patrons, but…

• Does a Facebook Wall qualify as a public forum?

Social Media

• This is a new area of the law.

• The library’s policy sets out the guidelines for the type of forum it establishes.

• Not a lot of case law on this issue, but . . . – A federal court in Hawaii is hearing a case about

comments posted by two users and deleted by the Honolulu Police Department, ultimately leading to the ban of the users from the department’s site. The site advertised itself as an open forum.

Decide whether to allow comments

• Library can choose to allow comments, but if comments are allowed, it is best to allow both favorable and unfavorable ones.

• Determine how open (or closed) to make the page.

• Can remove obscene, offensive, or vulgar comments if the policy provides guidelines for what will be removed.– Review Facebook terms of service agreement with a lawyer

to see what types of comments Facebook will allow.

Let’s look at a sample policy

• Library of Congress’ Comment and Posting Policy available at http://www.loc.gov/homepage/commentspolicy.html

• “We welcome your participation and comments on the Library’s blogs and social media.”– Opening the space for comment

• “Our social media sites are governed by the general rules of respectful civil discourse.”

• “The Library of Congress does not discriminate against any views.”

Sample Policy, cont’d

• “We will remove comments that contain abusive, vulgar, offensive, racist, threatening or harassing comments, personal attacks of any kind, or offensive terms that target specific individuals or groups.”

• Explains the types of comments that will be removed.

• Consistent with the statement that “the general rules of respectful civil discourse” govern the library’s social media sites.

Sample Policy, cont’d

• “We will remove spam, comments that are clearly off-topic, that promote services or products, or that involve political campaigning or lobbying.”

• “Clearly off-topic” – should be defined by the purpose of the Facebook page. If the page is open to general comments, it might be hard to specify precisely what would constitute “off-topic.”– In a “limited forum” comments outside the scope of the

page can be removed.

For Comparison

LOC• “We welcome your participation

and comments on the Library’s blogs and social media . . . the library may monitor any user-generated content . . . and reserves the right to remove content for any reason whatsoever. We will remove comments that contain abusive, vulgar, offensive, racist, threatening or harassing comments, personal attacks of any kind, or offensive terms that target specific individuals or groups . . . [w]e will remove spam, comments that are clearly off-topic, that promote services or products, or that involve political campaigning or lobbying.”

State of South Carolina• “Offices will submit to the

Communications Director . . . the type of content to be posted . . . The State Library will consider carefully whether to allow comments before launching a social media initiative. However, if comments are allowed, user feedback should remain regardless of whether it is favorable or unfavorable to the agency. Comments will be deleted only if they are offensive, abusive, racially inflammatory, threatening or clearly off topic. Comments that endorse a political candidate, party or commercial product will be deleted.”– Available at

http://www.statelibrary.sc.gov/docs/board/201109_com_scsl_social_media_policy.pdf

For Comparison

LOC• More specific about “offensive

comments” – they have to be targeted.

• “Welcomes participation” – could create a forum otherwise default is nonpublic forum

South Carolina• Includes language about

favorable/unfavorable comments.

• “Type of content to be posted’ – might suggest a limited forum.

• No mention of “off-topic” comments.

Library Meeting Rooms

Meeting Rooms

• Library can choose to designate rooms for specific topics of discussion or for particular groups.

• Consistently enforced policies with appeals process for a group that has been rejected will help.

• Require permission before entry.

• Content-Neutral Restrictions are ok (i.e. noise level, time and frequency of use)

Who can use a meeting room?

• Library policy should spell out which groups can have access.

• Library can have priority for its own programming before choosing to allow community groups to participate

• Libraries can limit access to community groups with educational, cultural, or charitable goals. – Watch out about not discriminating on the basis of

viewpoint within these categories.

What about religious, political, or commercial groups?

• Religious groups can use the rooms.

• A library cannot exclude a religious group to avoid an establishment clause problem.– Talk to your lawyer for specific questions about use of

library rooms by religious groups.

• Libraries can specify in policies that meeting rooms can’t be used by groups hosting partisan political meetings but not political meetings generally.

Commercial Groups or Solicitors

• Some policies restrict use to non-profit groups.

• This gives the library a basis to limit use by particular speakers. (For example, for-profit groups.)

Disclaimer Language

• “The fact that a group is permitted to use a library meeting room does not in any way constitute endorsement of the group's policies or beliefs by the Library. No advertisements or announcements implying such endorsements will be permitted. The Library Board may consider exceptions to any of these policies.”

Let’s take a look at a case

• Pfeifer v. City of West Allis 91 F.Supp.2d 1253 (E.D. Wis. 2000).

• This is a case that arose in our circuit.

• It gives an example of how the court applied “forum analysis” to a public library’s meeting room policy.

Pfeifer v. City of West Allis

• Facts: Public library had a meeting room (the Constitution Room) that it used primarily for its own programming but also for “[p]rograms open to the public which are sponsored by local non-profit organizations.” This was done to “encourage wide availability of the room to local community organizations” but politically partisan meetings, religious services or instructions, commercial sales or presentations, and regular meetings of clubs or organizations were excluded. The library had a process for groups that wanted to reserve the room.

Pfeifer v. City of West Allis

• Patron had a nonprofit Christian instruction organization to “educate the public” about creationism. The workshop had a religious content, but he also used science textbooks. The library director denied patron’s application to use the meeting room for a “creation science workshop” that would be “open to the public” because it involved “religious instruction.”

Pfeifer v. City of West Allis

• Court said: Library policy was unconstitutional and engaged in a “public forum analysis.”

• Court said the “Constitution Room” was the relevant forum, but it was relevant to the analysis that the room was in a public library.

• Library mission was to serve the local community and promote availability of the room to local community organizations. The court found that the Constitution Room was “a forum for expressive activity by nonprofit organizations serving the West Allis community.”

Pfeifer v. City of West Allis

• Because the library “aspire[d] to provide information on virtually all subjects . . . [the] goal suggest[ed] a kinship with a traditional public forum.”

• Exclusion of “regular meetings” was a content-neutral regulation consistent with the library’s goal of “encouraging wide use of the room.”

• Exclusion of commercial sales was narrow because the library limited use to “nonprofit organizations.”

Pfeifer v. City of West Allis

• Court found that the Constitution Room was a designated public forum.

• Regulations have to be content-neutral.

• Very fact-specific inquiry

Displays/Bulletin Boards

Library Displays• Libraries can choose to open areas for public displays or

exhibits by community groups or for specific purposes or topics.

• They can also choose to restrict use of the display for their own programming.

• Another option is to prioritize the space for their own programming even when they allow other groups to use it.

• A display within a library lobby may fall somewhere between a limited forum and a nonpublic forum.

Other Court Cases

• Brown v. Louisiana, 383 US 131, 142 (1966). (A library is a “place dedicated to quiet, to knowledge, and to beauty”).

• Kreimer v. Bureau of Police, 958 F.2d 1242, 1259 (3rd Cir. 1992) (Explaining that a library was a limited forum).

• Faith Center Church Evangelistic Ministries v. Glover, 462 F.3d 1194 (9th Cir. 2007). (Library could prohibit religious worship but not religious speech).

• Citizens for Community Values v. Upper Arlington Bd. of Trustees, 2008 WL 3843579 (August 14, 2008) (determining the “inherent elements of a religious service” [is] “unlawful viewpoint discrimination”).

Summary

• This is a complicated area of law lacking in clear-cut answers.

• Policies that attempt to regulate speech sometimes fare poorly if they are litigated.

• Spell out clear policies stating the type of comments that can be removed from a Facebook page.

Summary

• Consider limiting discussion to a specific topic and providing for removal of comments that are off topic.

• Establishing the scope of expression the forum permits, is helpful for meeting rooms, display case, and bulletin board policies.

• Consistently enforce policies and steer clear of viewpoint-based restrictions.

Conclusion

• You can contact me at jgiacomantonio@library.IN.gov– I will only be at ISL until July 31.

• Thank you for attending today.

– Remember this presentation is for legal information NOT legal advice. I cannot give legal advice because it would be illegal for me to do so.