Saturday, March 16, 2013

Banned From All Libraries on Earth for Masturbating in Racine Public Library That Allows Unfiltered Internet Access; Law School Exam Question on First Amendment and Criminal Law in Public Libraries

A man has been banned from "all the libraries on the face of the Earth" for public library masturbation:
Pretend this is a constitutional/criminal law school exam (perfect for the University of Wisconsin-Madison, School of Library & Information Studies).  When answering law school exams, one uses IRAC, Issue, Rule, Application, Conclusion.  In this exam question, I'll raise some issues and some rules I think are present.  Can anyone find others?  The media did not state whether the masturbator viewed online porn in the library, but, for this hypothetical law exam question, let's assume he did as that is the consistent precursor to public library masturbation, something so common reporter Carl Monday filmed a man masturbating in a public library, right next to the children's room.  You have four hours to answer and may refer to the linked reliable sources of information, or others, as long as you provide URLs for me to check.


SafeLibraries School of Law
Constitutional/Criminal Law Final Exam



FACTS:

The Racine Public Library, Racine, WI, allows unfiltered Internet access under its "Internet Access Acceptable Use Policy," and its "Rules and Regulations Governing Use of the Internet Workstations" say, "Users should not send, receive, or display text or graphics which may be reasonably construed as obscene by community standards."  The acceptable use policy clarifies that when it comes to obscenity, "That determination is made through legislation and interpreted by the courts."  The Racine Public Library Board of Trustees has created a legal disclaimer stating, "Neither the Racine Public Library nor the City of Racine, its officers, directors, or employees shall be liable for any damages (direct or consequential), including lost profits, for any information obtained or provided on the Internet."

A man views pornography on the unfiltered Internet computers provided by the public library in full view of all employees and patrons, including children, then he openly masturbates.  He is arrested and removed. 

The library has seen persistent problems.  Consider this from 24 September 2005 Journal Sentinel (Milwaukee, WI): "Father Wants to Make Sure Porn Can't Be Seen at Library; Panel Creating Proposal on Teens' Computer Use":
The Racine Public Library is hosting a public forum to discuss its Internet Acceptable Use Policy, a discussion that comes on the heels of a citizen's complaint about teens using public computers to access adult Web sites.  ....  Java Orr of Racine became concerned when he was at the library several months ago with his 6-year-old daughter and he saw a male teenager downloading and viewing pornographic material on a computer in the adult services area.  Orr said when he brought his complaint to library officials, he was told nothing could be done to prevent the youth from viewing the material.  Orr took his fight to keep children from viewing pornographic material at the Racine Public Library to the public.  He spent hours in front of the library petitioning residents to sign his Child Friendly Library Act, which he intends to get the Legislature to pass a bill on.  So far he has more than 500 signatures on the petitions.  His goal is 1,000.  "The bill would prevent children, including young adults, from gaining access to obscene or pornographic material," Orr said.  ....  "I'm hoping to hear what the public wants," [Racine Public Library Director Jessica] MacPhail said.
Or this in the same media source dated 30 July 2005 and entitled, "Porn Access at Public Library Criticized; Dad Wants Material Kept from Youths":
After observing what he calls pornographic material being downloaded and viewed by a teenager at a public library, a Racine man is now on a mission to change the law.  Java Orr said in an interview last week that while visiting the Racine Public Library three weeks ago with his 6-year-old daughter, he observed a male teenager downloading and viewing pornographic material on a computer in the adult services area.  Orr said that when he brought his complaint to library officials, they said nothing could be done to prevent the youth from viewing the material.  "It's insane that kids can actually see and read about this kind of sexual material at a public library," Orr said.  "Furthermore, that my child or any other child can easily walk by and witness it."  Orr is taking his fight to keep children from viewing pornographic material at the Racine Public library to the public.  In the past week, Orr has spent hours in front of the library petitioning residents to sign his Child Friendly Library Act, which he hopes will get attention from the Legislature.  He has gathered more than 500 signatures and has set a goal of 1,000.  "The bill would prevent children, including young adults, from gaining access to obscene or pornographic material" at a public library, Orr said.  ....  [Racine Public Library Director Jessica] MacPhail said a separate youth services area in the library provides five computers equipped with filters to weed out such material.  She said that area is used primarily for children through eighth grade.  ....  MacPhail said the Racine Public Library does post its Internet access policies for the public.  The policies state ... it is unacceptable to use the library's Internet equipment to send, receive or display text or graphics that may reasonably be construed as obscene by community standards.


LAW:

Federal:  Internet filters are legal in public libraries since US v. American Library Association, 539 U.S. 194 (2003).  Legal porn may be legally removed from public libraries as there is no First Amendment right to view porn in public libraries.

State:  See Wisconsin Library Law, Chapter 43.  Wisconsin criminal code includes "948.10 Exposing genitals or pubic area" and "948.11 Exposing a child to harmful material or harmful descriptions or narrations," including "(4) Libraries and educational institutions."  Consider if other Wisconsin Criminal Code provisions apply.  Also consider cases such as Adamson v. Minneapolis Public Library and other library hostile environment or sexual harassment lawsuits.  Locally, consider Jackson v. County of Racine.

Local:  Consider also Racine Municipal Code, including "Sec. 66-1001. - Public nuisance prohibited."  And might there be any ordinances regarding officials failing to act in the public trust?  Any legal instrument on the statutory creation of the Wisconsin public library and whether pornography is allowable as "free access to information and diversity of ideas"?  Consider searching Google for "annoyed librarian porn ala."


QUESTIONS:

Is there a crime or other legally actionable activity or lack thereof?  What?  Who is liable?  For what?  Have the patrons been harmed?  Children?  Library employees?  What about the perpetrator?  Was there an attractive nuisance?  Might the crime not have happened in the first place had effective filters been in place?

And the code that created the library.  Did it allow for pornography?  Has the library acted outside the law by acting as an open public forum and allowing porn instead of as a quasi public forum and filtering out porn per US v. ALA

What are the duties of the municipality when a library acts outside the law, and what are the liabilities for failure to require a library to act within the law?  Is the municipality liable for anything?  What?  Does the library's legal disclaimer protect the municipality? 

What effect might there be as a result of the knowledge of persistent problems in the library occurring as a result of pornography?

If libraries and educational institutions are exempted from liability for "carry[ing] out the essential purpose of making available to all citizens a current, balanced collection of books, reference materials, periodicals, sound recordings and audiovisual materials that reflect the cultural diversity and pluralistic nature of American society," does that protection extend to pornography displayed publicly as a result of the lack of Internet filters?  Does pornography "reflect the cultural diversity and pluralistic nature of American society" to the extent that it should be allowed in libraries even when the US Supreme Court said it may be legally blocked from libraries?

Library policy states, "Websites may be brought to the Library's attention; however, staff will not review sites if viewing the content would violate the City's Anti-Harassment Policy." What might that mean?  What relevance might that have?  And the library's "Acceptable Use Policy", what effect has that had in fact and might it have in law? 

If the library policy is to exclude obscene material, but also to claim the decisions as to what is obscene "is made through legislation and interpreted by the courts," what effect might that have in fact and on any legal proceedings?  Has the library covered itself from liability?  With millions of pornographic web sites and the library's requirement that only a court can determine what is obscene, has the library set up an impossibility that effectively nullifies its claim to preclude obscenity by policy?  If the library, in setting up such an impossibility, is following the requirements of an out of state organization, has it effectively ceded control of the central policy of the library to that outside organization?  When answering, consider the American Library Association's guidance to public libraries entitled, "Guidelines and Considerations for Developing a Public Library Internet Use Policy":
Knowing what materials are actually obscenity or child pornography is difficult, as is knowing, when minors are involved, and what materials are actually "harmful to minors." The applicable statutes and laws, together with the written decisions of courts that have applied them in actual cases, are the only official guides.  Libraries and librarians are not in a position to make those decisions for library users or for citizens generally.  Only courts have constitutional authority to determine, in accordance with due process, what materials are obscenity, child pornography, or "harmful to minors."

Lastly, what might be the implications and effect of the library's legal disclaimer?


ANSWER:

[Insert answer here or in comments below.  You have four hours.]



8 comments:

  1. The Racine Public Library Internet access is filtered and has been for about 3 years now.

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    Replies
    1. Thanks, Anonymous, for commenting. The online policies do not support your observation. Further, the library is not receiving federal funding for having filtered computers as required for such funding. In addition, the library has a history of porn viewing incidents.

      That said, if you can provide hard evidence that the library is fully filtered, and that it has been for three years, please provide that information here as this post is getting hundreds of views worldwide and I aim to inform my readers with the best information.

      Delete
  2. This is the updated policy as of 2011. It began in 2009 and the rules had been updated in 2011. www.racinelibrary.inf/rules.htm. Notice paragraph 5 - Websites categorized as pornography are being filtered at all Internet workstations. Again, no filtering software is perfect. Some content in this category may pass and filtering can block appropriate sites from view. Websites may be brought to the Library’s attention; however, staff will not review sites if viewing the content would violate the City’s Anti-Harassment Policy.

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  3. correction on the url. It's www.racinelibrary.info/rules.htm

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    Replies
    1. Library policy says, "It is assumed that children and young adults from age eight through seventeen who are unattended in the Library have parental permission to use all Library resources, including the unfiltered Internet workstations."

      I think, based on that, I can safely conclude, we can all safely conclude, the library has the "unfiltered Internet workstations" it claims it has. And, based on that, I can safely say what you quoted, namely, "Websites categorized as pornography are being filtered at all Internet workstations," is inconsistent at a minimum.

      It is safe to conclude the library has unfiltered computers just as it claims.

      Like in advertising, unclear language is to be construed against the people writing the language. The policy says the children's computers are filtered and if the children use the adult computers, then the adults must supervise. Further, the policy says, "The Racine Public Library Board of Trustees is concerned that patrons should not be inadvertently exposed to materials and images that they may find personally unsuitable. To reduce the possibility of this occurring, the Library provides privacy screens for the Internet workstations." Not filters, but privacy screens. Privacy screens are useless, which, fortunately, the library acknowledges: "While these screens provide reasonable privacy for text, such as credit card numbers, users should be aware that these screens do not completely block images from all angles."

      I see that sentence you cited. It simply does not fit in with the rest of the picture and surrounding facts. Further, I am aware libraries might claim to filter in policies, then allow patrons to choose unfiltered access with the click of a button, thereby effectively eliminating the use of any filtering whatsoever. Some, like the Brooklyn Public Library in NY, have a written policy that differs from the policy in practice, and does so intentionally to commit E-Rate fraud. Millions worth, in Brooklyn's case. Well, in the Racine case, the library policy specifies the unfiltered computers, so really that solves that.

      So tell me, if you are a patron of that library, how does one get unfiltered access. With the swipe of a card? By clicking a button? By asking a librarian? By submitting a request form? By going to the unfiltered computers named in the policy? Going to a special room? Computers turned away from where people might see? Computers in carrels? Behind privacy screens? And do you know where any of that is documented? How do you ask for filters, if any, to be dropped? It appears to get unfiltered access you simply use the unfiltered computers.

      [Continued next comment...]

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    2. [... Comment continues here:]

      Furthermore, policy I have linked in the post says:

      Although users using Internet workstations in the Adult Services Department are free to access any site with content that is protected under the free speech provisions of the Constitution, it is unacceptable to use the Library’s Internet equipment to send, receive, or display text or graphics which may reasonably be construed as obscene by community standards. The determination that content of a web site is “obscene by community standards” is not made by the Library staff or the Racine Public Library Board of Trustees. That determination is made through legislation and interpreted by the courts.

      That tells me the library allows porn but not child porn, and that it will not decide whether or not something is porn or child porn or not. Indeed, the American Library Association advises libraries that librarians are not police officers and are in no position to decide what is or is not child porn. Here's the exact quote: "As for obscenity and child pornography, prosecutors and police have adequate tools to enforce criminal laws. Libraries are not a component of law enforcement efforts...."

      It appears the library's policy talks a good game but allows anything but child porn, precisely as the ALA directs, and that the library is answerable to the ALA, not to local citizens. In my legal hypothetical, such allegiance to the ALA in defiance of the public trust may be of concern. By the way, some libraries even allow child porn, like in Holyoke, MA, and others, following ALA policy to destroy records and delay police investigations, make it almost impossible to stop crime.

      And, it violates the US Supreme Court on the issue as the Court says filtering porn in public libraries violates no one's First Amendment rights. So the Racine library is misleading its patrons, let alone everything else going on.

      Anonymous, please try to dig up more information about the actual practices of the library, not just its written policy with its poorly written and contradictory language that simply regurgitates ALA policy. Hopefully you can make a personal visit; I can't. I'm still getting hundreds of views a day so I want to be as informational as possible. I've proven the policy references unfiltered computers despite saying all are filtered, so that's solved, but I'd still like to hear about your personal visit, if possible, even if you were mistaken on the filtering policy issue.

      Thanks.

      Delete
  4. I have made a personal visit. Porn is blocked. Not just child porn, all porn. All computers are filtered.

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    Replies
    1. Thanks, Anonymous. Your report is enlightening, but it goes against the library's own policy statements that specify some of its computers are "unfiltered Internet workstations." It also goes against the library having a history of controversy related to unfiltered computers and the library following ALA diktat that libraries are in no position to decide what is or is not child pornography and the like.

      It is possible the library's online policy regarding "unfiltered Internet workstations" and ALA diktat is outdated. Please ask the library if its policies are outdated, pointing out this conversation so there are no surprises, then let us know how the library responded. It will either 1) not change its policy, thereby confirming it has "unfiltered Internet workstations" and follows ALA diktat, or 2) change its policy. Of course any policy change would not happen immediately, but tell us of what response you did get.

      By the way, what is the procedure to drop the filters to view any desired site?

      Thanks.

      Delete

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