Submission Date:
Question:
I appreciate your thorough treatment of the topic of pornography in libraries, especially couching it in the larger context of objectionable content. Our library's policies and staff training take a similar approach.
In reviewing our Employee Handbook, our fairly standard Sexual Harassment Policy, and my staff training & orientation on the topic, one trustee raised the question of the library's liability in the case of minors -- specifically, minor employees -- being subjected to viewing pornography in their workplace. The trustee thinks that minors viewing pornography is flat-out illegal, and I don't understand the subject well enough to explain whether it's a civil or criminal liability, or who would be liable in the case of a child glimpsing an adult's perusal of graphic sexual content; or whether we, as employers, should have some kind of parental consent form for minor employees, as we employ Library Pages as young as 14 years old.
Assuming a set of library policies structured as you have previously advised, what, if any, liability does a library have for minors inadvertently viewing adult pornography? And what, if any, modifications to hiring, training, and workplace procedures do you recommend for minor employees?
Answer:
This submission stands at the complicated crossroads of First Amendment, employment law, library ethics, and equal protection.[1]
As such, I could write on this topic endlessly. But "Ask the Lawyer" is not here to provide endless commentary, but rather, helpful guidance inspired by real-world questions.
So here is some (hopefully) helpful guidance, centered on a real-world example (culled from my summer reading):
I recently read a powerful graphic novel called "I Know What I Am"[2] about the life and times of artist Artemisia Gentileschi.
Gentileschi was a powerhouse painter in the 17th century. She was also a survivor of sexual assault, a businesswoman, and a mother who, as portrayed in the comic book, channeled her experiences into her painting.
"I Know What I Am" pulls no punches depicting Gentileschi's life. The artwork--which re-creates many of Gentileschi's own works, including her different versions of "Judith Slaying Holifernes"[3]--is stark, bloody, and riveting.[4] The portrayals of sex and sexual abuse do not leave much blood in the gutters.[5]
Of course, as a literary work, "I know What I Am" checks all the boxes for not triggering a charge of "obscenity" as defined in New York (including having literary merit). But that said, select panels from the book could very easily be regarded as inappropriate for some audiences--and not just for "minors." The content is very raw, and for those sensitive to certain topics, could exacerbate or evoke trauma.
None of that, of course, creates a legal violation caused by the content itself--even if it is in a library being shelved by a 14-year-old--but it does show why there is a need to consider questions such as those raised by the member.
Which, using "I Know What I Am" as a focal point,[6] I will now do.
First question: [Is] minors viewing pornography ... flat-out illegal?
Answer: The word "pornography" does not appear in the New York State Penal (criminal) Law. Rather, New York uses numerous defined legal terms (such as "harmful to minors,"[7] "obscenity,"[8] "indecent material"[9] and "offensive sexual material"[10]) to describe criminal acts that can lead to a charges based on providing access to certain content under certain circumstances (including to people of a certain age).
However, because of the defenses very carefully built into these laws, none of these concepts can be accurately applied to a properly cataloged item being accessed by a minor who is doing their defined job per library policy.
That said, both internet porn and content with undisputed literary merit such as "I Know What I am" could be handled or displayed in a way considered harassing (a civil rights violation), damaging (a personal injury claim), or criminal if the access is gained or forced on/by a minor without adherence to collection and library policies, and job descriptions.
Here are some examples as to how that could happen:
- A library employee retrieves books with suggestive titles or sexual content and repeatedly leaves them in another page's locker as a prank, and even when it is reported, the library does nothing to prevent it from recurring (sexual harassment);
- A clerk knowingly and with intent to harm directs a page who is a recent sexual assault survivor to create a book display of "I Know What I Am" [11] (risking a charge of sexual harassment; possible personal injury); worker's comp claim);
- A community member donates a stack of old "adult" books for the annual book sale and the director knowingly assigns a 14-year-old to inventory them (risking a charge of material harmful to minors, which requires a "sale" element to be actionable);
- A patron repeatedly violates the library's policy about viewing sexual content on publicly viewable computers, and no one corrects the serial policy violation (risking a charge of display of sexual material, as well as sexual harassment).
Aside from the legal concerns caused by these types of extreme examples, of course, there is the very real and practical concern that parents of a minor employed by a library could take issue with some of the content their child has to work with...even if it is entirely legal.
In that regard, I can only say that inviting concerned parents to review the library's well-thought-out accession, cataloging, and appeal policies is a pro-active way to ensure parents know that the library takes both its role as an employer of their child, and as a champion of a community's intellectual freedom, seriously.[12] Parents or guardians of minors working in New York will have already had to sign working papers; no waiver or disclaimer should be further required.[18]
Which brings us back to the point the member raised in the beginning of their question: the importance of having--and enforcing--policies that govern accession, appeal, cataloging, display, and sexual harassment/discrimination (careful adherence to job descriptions and good training on how to enforce policy in the moment are essential, too).[13]
In New York, both the criminal and civil law contain robust protections for libraries working with material some may find inappropriate, offensive, or challenging, but those protections do rest on proof of operating in harmony with the law. By having clear policies and documenting adherence to them, a library can be ready to weather accusations of illegal conduct.
Which brings us to the member's last questions:
Assuming a set of library policies structured as you have previously advised, what, if any, liability does a library have for minors inadvertently viewing adult pornography?
If the viewing was truly "inadvertent," and any policy violation that allowed it to occur is quickly corrected, nothing further is needed.[14]
And what, if any, modifications to hiring, training, and workplace procedures do you recommend for minor employees?
Speaking as a former "minor employee" of a public library,[15] a good employee orientation, and regular reinforcement, on the fundamentals of library ethics and the policies that protect employees is a very valuable thing.
This is already something most libraries are doing, but here are some helpful points to reinforce:
- Prior to hire, a minor employee should review the job description with their supervisor, and have a chance to ask questions;
- All employees must be trained to respect patron confidentiality and be trained on how to deftly demur requests by third parties for patron information;[16]
- All employees are entitled to respectful treatment from patrons and co-workers, and should know to whom they can direct questions and concerns about their employee experience;
- The library has a suite of policies for selecting, challenging, cataloging, and weeding books, and minor employees who might not have direct responsibility under those policies should know they exist, and how to direct questions about them;
- Minor employees, in particular, should be trained on how to immediately report observed or reported policy violations (including those related to pornography and harassment);
- Library employees who are not legal adults (18) should feel free to ask questions, should know to whom those questions and concerns can be directed, and should get meaningful and timely answers so they feel respected.
All of this should be reflected in a hire letter or orientation packet, so parents, if they choose to ask their child to view the terms of their work,[17] can do so.
Not too much to remember in your day-to-day life keeping the library up and running, right???
Thank you for an excellent question.
[1] And even a bit on the law defining what a "minor" is--a status that can shift based on which law is being applied, where.
[2]https://bepl.ent.sirsi.net/client/en_US/default/search/detailnonmodal/ent:$002f$002fSD_ILS$002f0$002fSD_ILS:2101819/one?qu=9781683962113
[3] Here is one version: https://www.theguardian.com/artanddesign/2020/oct/09/artemisia-gentileschis-judith-slaying-holofernes.
[4] Being a businesswoman myself, I found the "business" parts just as compelling as the violent parts, although much of the drama in that part is subtext.
[5] "Blood in the gutter" is a phrase from comics book publishing, meaning the violence happens between panels.
[6] I could also have picked something a bit more salacious to use as an example (something that only barely makes the "literary value...for minors" test) but why waste the opportunity to tout a great book?
[7] NY Penal Law 235.20
[8] NY Penal Law 235
[9] NY Penal Law 235.21
[10] NY Penal 245.11
[11] I know, this is a very far-fetched example. At least, I hope it is, since it illustrates truly sociopathic behavior.
[12] If a library wants to go even further and have minors only work in the Children's Room, where they will by policy only work with materials cataloged for youth, that could be an extra precaution, although it is not personally one I endorse. Library work, like legal work, is for people who can approach all of life's variety with maturity and aplomb.
[13] As referenced by the member, past discussion of how policy plays into managing concerns about pornography is here: https://www.wnylrc.org/ask-the-lawyer/raqs/60.
[14] From the legal perspective. I can't say if counseling, getting ready for picketing, or bracing employees for an angry phone call from parents is in the future.
[15] New Hartford Town Library, when I was 16 and 17.
[16] I know this isn't quite on point, but the balance between respecting patron confidentiality, and enforcing respect for employees, can be tricky if people don't grasp the fundamentals. Just because you have to keep mum on what a patron is checking out doesn't mean you keep mum about inappropriate comments!
[17] The topic of a guardian or parent viewing or interceding with the employment relationship of their child is too big for this reply.
[18] Update 11/05/2021: We received a request for clarification about when to use this tactic. As posted in the clarification here [Follow-up to Minor Employees and Obscenity in Libraries] I intended this guidance to convey that the information about accession, cataloguing and appeal policies be supplied only after a parent expresses concern.
