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:

• "Man Forbidden From 'All Libraries on the Face of the Earth,'" by Stephanie Jones, The Journal Times (Racine, WI), 14 March 2013.
• "Wisconsin Man Banned From 'All the Libraries on the Face of the Earth' As Condition of $1,000 Bond; Tyree S. Carter is Accused of Openly Masturbating in the Racine Public Library Last Week; A Witness Told Investigators Carter Was Out in the Open, Not Trying to Conceal His Act," by The Associated Press, New York Daily News, 15 March 2013.

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.]

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