Submission Date:
Question:
Pornography and public computers in libraries have gone hand-in-hand for some time and I'm doing some research on how library policies should handle addressing this in a realistic and proactive way. The question that I am researching is whether or not it is legal to explicitly list pornography as something that cannot be accessed on library computers. I understand ALA and the Intellectual Freedom Committees stance on this issue as well as the first amendment ramifications and I am certainly not advocating for censorship, however, I've seen several policies that have tried to circumvent the issue by having vague, unhelpful policies and others that have flat out said that it is not allowed. Any clarifying help from a legal standpoint would be appreciated.
My understanding is that it would not be constitutional to have a policy restricting pornography, however, there could be something in the policy that restricts the displaying of pornography or other offensive content.
Thank you.
Answer:
Because libraries are guardians of the first amendment, and because there is no consistent definition of “pornography,” the answer is: NO. I cannot offer legal guidance that simply bans porn…any more than I could suggest that a public library start charging admission. Such guidance would cut into the fundamental heart of a library’s mission.
But there is a way to achieve your underlying objective: Focus on civil rights.
How does a “focus on civil rights” keep porn off library computers, you ask?
Let’s start with the fundamentals: why would a library would need to consider limiting internet porn in the first place? The answer is pretty simple. Aside from the malware—and the abysmal amount of copyright theft perpetrated by many porn sites--[1] no one wants to work or congregate in a place where other people are watching porn.
At best, it’s icky. At worst, it creates an atmosphere of gender-based discrimination (of any gender…of any sexual orientation…and of those who do not gender-identify, too). So in New York, where the stakes for a sexual harassment claim have never been higher[2], providing a porn-free environment is an unquestioned goal at most places of employment[3]…including libraries.
And so the true question here is not if a library can outright restrict access to internet pornography, but rather, how can a library make sure it’s not honoring one civil right at the expense of another? How does a library remain a beacon for the first amendment, but stand as a bulwark of equal access and fair treatment, too?
This balance can be achieved. The key, just like in other matters involving fundamental rights, is to have a clear, well-developed policy, applied by trained professionals, well-documented and guiding you every step of the way.
Every library policy should be customized for its unique environment (and harmonized with other policies), but here is a quick example of the type of document I describe, designed to fit into a library code of conduct, patron access agreement, or other behavior-related policy:
The[INSERT NAME] library absolutely respects users’ rights to reliably and confidentially access content, but also has a duty to ensure that its shared community space is free of behavior that demeans, intimidates, or discriminates against patrons, other visitors, and employees.
Therefore, to ensure compliance with local, state, and federal civil rights laws, anyone using or displaying library resources in a manner that creates an atmosphere that could harass, sexually harass, or discriminate against others may be asked to modify their behavior.
Examples that may require staff to ask you to modify behavior include, but are not limited to:
- Prominently displaying content featuring racial, gender-based, or religious invective or insults;
- Prominently displaying scenes of violence;
- Prominently displaying sexual content;
- Printing and/or prominently displaying materials in way that appears to target others.
Any request for modification, action or determination under this policy will place the highest priority on the right of patrons to access content, and will seek ways to address the concern without restricting that access. Modification could include:
- Agreeing to move the material on another table at a less trafficked area;
- Scheduling use of a shared resource to ensure predictability of display;
- Collaborating on a solution that ensures optimal access to content as well as a safe and respectful environment for all.
In some cases, however, “modification” may simply mean a request to discontinue the behavior. Examples include but are not limited to: deliberately leaving images of violence in a children’s area; prominently displaying sexually graphic content in full view of other patrons and employees; any activity that uses content to negatively target another person in the library.
Patrons who refuse to modify their behavior or to collaboratively resolve a concern may be found in violation of the library’s Code of Conduct and subject to restriction of privileges, per library policy.
“Prominently displaying” means the content is intentionally or incidentally visible to others, risking a hostile atmosphere.
By focusing not on the restriction of “pornography,” but on the creation of a respectful and welcoming environment for all, a library positions itself to ensure optimal access to content, but to follow state, local, and federal civil rights laws, too. And since one person’s anatomy textbook is another person’s porn, a policy that allows for proactive solutions, using incremental and creative adjustment, helps balance liberty with a respectful environment.
What part of first amendment jurisprudence allows this? The first amendment does prohibit the government from abridging the freedom of speech. However, it does not guarantee that all forms of protected speech may be heard on property owned or controlled by the government. Instead, the state (just like an owner of private owner property), has “power to preserve the property under its control for the use to which it is lawfully dedicated.” Further, as in any case “where the principal function of the property would be disrupted by expressive activity,” courts will not consider the main reading and reference area of a public library to be public forum where expression cannot be regulated.[4]
Here is an example: let’s say I am working on book about inter-generational trauma. With only the best of intentions (writing a book exploring how the trauma of one generation can impact the next) I claim a table for myself near the reference desk, and start laying out books with pictures from the Jim Crow era. At the next table over, a young person sees the pictures, and suddenly finds the library is not the warm, happy place it was ten minutes ago. She gets very emotional, and the reference librarian notices. Using the policy, the librarian could then say: “I see you are working on an important project. Since this is a high-traffic area and these are some very stark imagines, can you consider moving to a table where you can access the material, but not risk a negative impact on others? That would help us serve you while also making sure the reference area is welcoming to all.”
If I say “yes,” and move, we all move on. If I say “no,” there may be a need for further discussion, but under the library’s policies, one way or another, an adjustment is made.
How could this work with a patron accessing porn on a public computer? The librarian states: “This is a public area[5] that serves many people, and its environment must be respectful of our visitors and employees. What you are viewing is not consistent with that requirement, so it cannot be displayed is this area. Please stop now.”
If I say “yes,” and move, we all move on. If I say “no,” there isn’t much need for further discussion, since under the library’s policies, one way or another, an adjustment will be made.
This is what is called in first amendment jurisprudence a “time, place, and manner” restriction. Considering the mission of the library—to serve all—a policy of keeping the common areas free of graphic violence, invective, and sexually explicit content is very reasonable…especially since most parts of a library are not considered a “public forum.” It is the same restriction that allows librarians to ask people to speak quietly or not play music on their cell phones that others can hear.
I appreciate that this approach does require library staff to make and enforce value judgments about content—and some librarians may feel uneasy about that role. But the essential function of libraries rests on the ability of librarians to make content-based decisions. In fact, because they are trained to categorize and assess various types of information, librarians are some of the best-qualified people in the world to take such a burden on.
The case Sund v. City of Wichita Falls—also called the “Heather Has Two Mommies” case—shows the importance of qualified professionals making content decisions using consistently applied, well-reasoned policy.[6] In that case, a town board tried to allow patrons to over-ride a head librarian’s decision as to where to shelve a children’s book depicting a positive, happy tale of a girl and her two mothers. When striking down the law, the judged cited the library’s careful accession policy and the level of training required of the librarian—and then confirmed that she had the final say in shelving decisions.
Librarians use such content discernment on a routine basis, and today’s civil rights laws demand they apply it to not only collections, but the library’s environment, as well. A policy that is well-developed, harmonized with other policies, and the subject of routine training and practice for staff can give this responsibility a reliable formula. Like all critical policies, such a policy should be custom-drafted and carefully considered before being approved by trustees, since if the resulting discernment is ever challenged, the board will need to stand by—or overrule—how it was applied in the field.
Balancing conflicting civil liberties requires careful analysis and diplomacy. But at the end of the day—I’m just gonna say this—unless they work in a very unique type of place, librarians have the right to expect a workplace largely free from internet porn.[7] That freedom—and the freedom of patrons to access content without undue restriction—starts with your library’s commitment to civil rights.
Thank you for this important question.
[1] The only reason I know this is because I am a copyright attorney. No, really.
[2] See the new laws passed in 2018 about increased employer liability for sexual harassment.
[3] Obviously the sound editor at an erotic film production company hopes for a steady stream of work, but that’s the exception, not the rule.
[4] See the case Citizens for Cmty Values, Inc. v. Upper Arlington Public Library Board of Trustees, 2008 U.S. Dist LEXIS 85439 (2008), United States District Court for the Southern District of Ohio.
[5] I have no pre-emptive solution for people who bring their own laptops and are able to reserve a room, unless you have a policy that employees may enter such a room at any time, in which case my same advice applies.
[6] This case is a good read for any librarian seeking a refresher on the important of clear policy and a supportive board of trustees. It is also very laudatory of the librarian who fought for the right of the library to properly shelve the book.
[7] I am not a judge, so I get to have a definition! Here is it: “Anything on the internet depicting a sex act, that comes with at least two pop-up adds.”
