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Friday, August 30, 2019

Library Bill of Rights Means 'Nothing': Berry v. Yosemite Community College District

A United States District Court judge has ruled that the American Library Association's so-called "Library Bill of Rights" actually means "nothing to indicate that there would be a private cause of action based upon a violation."  It is "not a federal statute."  Rather, it is "an unambiguous statement of principles that should govern the service of all libraries" that is "promulgated by the American Library Association."

In other words, when your local librarians cite the Library Bill of Rights as if it were some hard and fast rule of law equivalent to the Bill of Rights, or when your library board of trustees incorporates it into its own policy statements, you'll know four things—1) that's fake, 2) the Library Bill of Rights is meaningless in your community since it comes from ALA and not from your local law, or any law for that matter, 3) that's a sort of bullying by puffing up a mere promulgation of ALA as it if were real law, and you're labeled as the censor if you don't obey or if you insist that local law trumps a "statement of principles" from some organization based in Chicago, IL, and 4) they are hiding something.

It implies, for example, that it would be age discrimination to keep children from material inappropriate for them.  In reality, it's perfectly appropriate, and that's why Judith Krug and her ALA lost in the US Supreme Court where the Court said unanimously in United States v. American Library Association, 539 U.S. 194 (2003), "There are substantial Government interests at stake here: The interest in protecting young library users from material inappropriate for minors is legitimate, and even compelling, as all Members of the Court appear to agree."

ALA, on the other hand, says, "V. A person's right to use a library should not be denied or abridged because of ... age...."  See the difference?  By the way, the "V." is to give the appearance of legal legitimacy akin to the real Bill of Rights.

So, almost literally, a court has ruled ALA's so-called Library Bill of Rights means nothing, except to ALA itself and its members.

It is more of an "aspirational creed" than anything else: Reality Bites: The Collision of Rhetoric, Rights, and Reality and the Library Bill of Rights.

Here's what the United States District Court judge said about ALA's Library Bill of Rights in Berry v. Yosemite Community College District, Case No. 1:18-cv-00172-LJO-SAB. (E.D. Cal. Apr. 17, 2018):
E. Library Bill of Rights 
Plaintiff contends that Defendants violated Article III of the Code of Ethics of the Library Bill of Rights because they did not take the necessary legal steps before breaching her confidential library records and reporting them in the joint status report. However, the Code of Ethics of the Library Bill of Rights is not a federal statute, but is promulgated by the American Library Association. The Library Bill of Rights is an unambiguous statement of principles that should govern the service of all libraries. While the documents represent the polices of the American Library Association, there is nothing to indicate that there would be a private cause of action based upon a violation. See Interpretations of the Library Bill of Rights available at http://www.ala.org/advocacy/intfreedom/librarybill/interpretations (last visited April 16, 2018).
Which reminds me.  Libraries assert the Library Bill of Rights is the reason for allowing Drag Queen Story Hour to proceed.  But as we've seen the Library Bill of Rights means nothing.  What does mean something is the law that created the library.  Such laws require libraries to act for the benefit of the public, and Drag Queen Story Time actually harms the public, so it's against the law and can be stopped by application of the law—if people were only aware of the law.  But librarians don't want you to know that, that your own library law may preclude Drag Queen Story Hour.  They only want you to know about the Library Bill of Rights that in reality means nothing.  Isn't that interesting?  Makes you think.  This is what they are hiding by asserting the Library Bill of Rights, namely, that local laws controls, not some aspirational creed of an out-of-state organization.  See, for example:

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at 2 comments:

Saturday, August 17, 2019

Egli v. Chester County Library System, No. 18-4012 (E.D. Pa. Aug. 12 2019)

CHRISTOPHER EGLI, Plaintiff,
v.
CHESTER COUNTY LIBRARY SYSTEM, et al., Defendants.

Civil Action No. 18-4012.
United States District Court, E.D. Pennsylvania.
August 12, 2019.

CHRISTOPHER EGLI, Plaintiff, pro se.

CHESTER COUNTY LIBRARY SYSTEM, Defendant, represented by GUY A. DONATELLI, LAMB & MCERLANE, P.C.

MONTGOMERY COUNTY LIBRARY SYSTEM, Defendant, represented by JOHN P. GONZALES, MARSHALL DENNEHEY WARNER COLEMAN AND GOGGIN, P.C. & MONICA L. SIMMONS, MARSHALL DENNEHEY.

PENNSYLVANIA CABLE NETWORK & NATIONAL PUBLIC RADIO, Defendants, represented by MICHAEL BERRY, BALLARD SPAHR LLP & LESLIE MINORA, BALLARD SPAHR.

WHYY, INC., "RADIO TIMES", Defendant, represented by RONALD A. GILLER, GORDON & REES LLP & SARAH L. TOMKIN, GORDON REES SCULLY MANSUKHANI LLP.

MEMORANDUM OPINION

CYNTHIA M. RUFE, District Judge.

 Pro se Plaintiff Christopher Egli filed suit against Defendants Chester County Library System ("CCLS"), Montgomery County Library System ("MCLS"), Pennsylvania Cable Network ("PCN"), National Public Radio ("NPR"), and WHYY, Inc., asserting violations under 42 U.S.C. § 1983, the Civil Rights Act of 1964, the Cable Communications Policy Act of 1984, and the Equality Act of 2010. Defendants have filed motions to dismiss Plaintiff's Complaint, and Plaintiff has filed a motion to add Lower Merion Township to the list of Defendants. Upon consideration of the motions and responses thereto, Defendants' motions to dismiss will be granted, Plaintiff's claims will be dismissed with prejudice and without leave to amend, and Plaintiff's motion to add Lower Merion Township will be dismissed as moot.

I. BACKGROUND[1]

In early 2018, Plaintiff published a book titled "The Phantom Ogre; Exploring the Upside-Down World of anti-Semitism." According to Plaintiff, the book "examines the issue of anti-Semitism, offering ideas and thoughts about its causes and origins" while "simultaneously offering a critique of Judaism." Plaintiff sought to publicize his book and opinions at local libraries and through other media sources, without success.

In June and July 2018, Plaintiff allegedly contacted CCLS, which comprises 18 libraries, including Easttown Library. The "Materials Selection Policy" section of its website states that CCLS "strengthens and leverages the power of the public libraries in [its] community to ensure that every resident of Chester County has access to exceptional opportunities to read, learn, create, connect and contribute to a better quality of life." The Adult Program Coordinator of CCLS initially expressed interest in Plaintiff's presentation and asked for a copy of his book to review, but later emailed him back stating that the book talk does not meet CCLS' programming guidelines and included the following passage:
As with all Library-sponsored events, only those programs that promote and extend the Library's collections, services, goals and mission will be considered. A Library-sponsored program must not promote the services, products, or philosophy of an individual group.
Plaintiff alleges that this rejection was improperly based on the political content of the book, rather than according to the policy.

Plaintiff alleges that MCLS engaged similar conduct in rejecting his book and offer to present, which according to Plaintiff, consists of over 25 libraries, including Ludington Library. Despite Plaintiff's admitted inability to locate any specific policies of MCLS, he nonetheless alleges that MCLS cannot "pick and choose which religious views to promote — or exclude," particularly when it is publicly funded.

Plaintiff also alleges that PCN is a Pennsylvania-based television network which offers its programming throughout the Commonwealth in most cable packages. According to Plaintiff, PCN "is funded through subscriber fees paid by participating cable companies, and is regulated under 'The Cable Act.'" Plaintiff allegedly receives the network in his home through his Xfinity contract, and occasionally watches its "PA Books" program, which "offers one-on-one interviews with authors whose books are 'of interest to Pennsylvanians.'" Plaintiff wrote to PCN to request that he be featured on its "PA Books" program. PCN's director asked for a copy of Plaintiff's book to review, and a few weeks later, told Plaintiff that PCN was not "interested in interviewing him, adding[ ] 'the PA Books series focuses on nonfiction books with a Pennsylvania connection.'" Plaintiff alleges that PCN's decision in declining to interview him on its program reflected a "double standard" in deciding what was related to Pennsylvania, and that PCN simply did not want "to air political content [it] found objectionable."

Plaintiff alleges that he regularly listens to NPR, which he states is "partly funded by taxes, and [ ] regulated by the FCC." He admits in his Complaint that he has a long history of contacting NPR, "clogging NPR inboxes with emails, tweets, and comments to Management and the Ombudsman." Although NPR allegedly has broadcast some of his views "on general topics such as regulations, elections, the 2nd amendment, or other issues," it has never broadcast his criticisms of Israel. As Plaintiff explains, he submitted "hundreds of comments to NPR throughout 2017 and 2018 criticizing Israel and decrying NPR's coverage of anti-Semitism." Additionally, after writing his book, he allegedly wrote dozens of emails to two NPR radio shows to appear as a guest, "[n]one of [whom] were interested in discussing or disseminating [his] views." Such disinterest by NPR, according to Plaintiff, reflects "a policy . . . of stifling free speech where Israel is concerned" and that "NPR excluded his views because they were critical of one particular religion — Judaism — that is regularly accorded preferential treatment in NPR reporting."

Finally, Plaintiff brings claims against WHYY, which allegedly airs an interview program called "Radio Times" in Philadelphia and, like NPR, is "partly funded by taxes, and [ ] regulated by the FCC." According to Plaintiff, the program "routinely presents Israel in a favorable and sympathetic light, rarely including critics of Israel as guests." Plaintiff allegedly has written to the program "with some regularity" in the past few years, and although some of his comments have been accepted and sometimes read on air, he alleges that his opinions about Israel have always been screened by someone who told him that his "phone connection was bad, or put him on hold till the program was over." Additionally, after announcing the publication of his book and his desire to become a guest on WHYY's program, he received no reply from WHYY, which he attributes to "policies favoring Israel."

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's "plain statement" lacks enough substance to demonstrate that he is entitled to relief.[2] In determining whether a motion to dismiss should be granted, the court must consider only those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party.[3] As Plaintiff is proceeding pro se,the Court "must liberally construe his pleadings."[4]

Courts are not, however, bound to accept as true legal conclusions framed as factual allegations.[5] Something more than a mere possibility of a claim must be alleged; a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face."[6]The complaint must set forth "direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory."[7] Deciding a motion to dismiss, courts may consider "only allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim."[8]

III. DISCUSSION

     A. Section 1983 Claims and the First Amendment

Plaintiff brings claims under 42 U.S.C. § 1983 against Defendants based on violations of his First Amendment rights. Section 1983 is not a source of substantive rights, but a means of vindicating violations of federal constitutional and statutory rights committed by state actors.[9] To state such a claim, a plaintiff therefore must allege (1) a deprivation under the Constitution or laws of the United States, (2) by a person acting under color of state law.[10]

          1. Library Defendants: CCLS and MCLS

Municipalities and other bodies of local government are considered to be "persons" within the meaning of § 1983, and can be sued for damages under the statute.[11] As Plaintiff has alleged that CCLS and MCLS comprise public libraries, which are "funded through taxes on the residents of their respective counties,"[12] and as these Defendants have not at this stage argued otherwise, they will be treated as municipalities and therefore state actors for purposes of their motions to dismiss.[13]

Even assuming that CCLS and MCLS are state actors, however, Plaintiff also must allege a constitutional injury that was caused when the municipality acted pursuant to a custom or policy.[14] There cannot be redress under § 1983, particularly where a custom or policy is at issue, without establishing an underlying violation of a federal constitutional or statutory right.[15] Plaintiff asserts that his constitutional injury stems from an improper content-based rejection of his offer to provide his book and present on it at libraries in violation of the First Amendment.[16] Thus, Plaintiff does not argue that he has been denied access to the libraries' facilities, but that the library has not made his book available to other patrons.[17]

Libraries have broad discretion in determining the content of their collections. As the Supreme Court's plurality decision in United States v. American Library Association[18]("ALA") held in the context of content-based internet filtering, library internet access is "no more than a technological extension of the book stack,"[19] and public libraries require and merit "broad discretion" to make content-based decisions in collection and internet management since their purpose is to offer selective access of information to the public.[20]

CCLS and MCLS, according to the allegations of the Complaint, exercised that discretion here. Plaintiff cannot allege a claim associated with a library's rejection of a particular book. Libraries are not required to accommodate every book or proposed talk, but instead must determine based on their professional judgment which materials are deemed to have "requisite and appropriate quality" to occupy the limited space available.[21] There is nothing in the Complaint to suggest that either MCLS or CCLS had policies or customs that are inconsistent with this constitutionally permissible discretion or that target certain viewpoints. He alleges only that his book and proposed talk were not accepted, but as Plaintiff does not have a constitutional right to be included in a library collection, he has failed to state a plausible § 1983 claim against CCLS and MCLS.

          2. Media Defendants: PCN, NPR, and WHYY

Defendants PCN, NPR, and WHYY argue that the § 1983 claims against them should be dismissed for failure to state a claim because Plaintiff has failed to allege that they are state actors, and Plaintiff has no First Amendment right to be granted airtime by these entities. This Court agrees.

Section 1983's "color of state law element is a threshold issue; there is no liability under § 1983 for those not acting under color of law."[22] A private entity may be considered a state actor under limited circumstances, where "there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself."[23] In order to assess whether such entity may be deemed a state actor, three tests apply:
(1) whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state; (2) whether the private party has acted with the help of or in concert with state officials; and (3) whether the state has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity.[24]
Each of these inquiries focuses on whether the government is responsible for the specific conduct alleged by Plaintiff.[25] Determining whether these Defendants are state actors therefore necessitates a fact-based analysis of the allegations in the Complaint.[26]

The Third Circuit has explicitly held over the last two decades that private entities do not transform into state actors under § 1983 simply because they may receive extensive government regulation and funding.[27] In the context of the First Amendment cases, the Supreme Court has held that extensive government regulation does not transform a private entity into a state actor.[28] Rather, "a private entity can qualify as a state actor in a few limited circumstances— including, for example, (i) when the private entity performs a traditional, exclusive public function; (ii) when the government compels the private entity to take a particular action; or (iii) when the government acts jointly with the private entity."[29]

Here, Plaintiff solely alleges that PCN is a Pennsylvania-based television network which "is funded through subscriber fees paid by participating cable companies, and is regulated under 'The Cable Act.'"[30] Plaintiff also alleges that NPR and WHYY are both "partly funded by taxes, and [] regulated by the FCC."[31] Plaintiff has not adequately alleged in his Complaint that any of these Defendants "acted under color of state law" when each of them allegedly refused Plaintiff's request to discuss his book and opinions on the air.[32]

Moreover, even if PCN, NPR, or WHYY could be considered a state actor, Plaintiff's allegations that he has been deprived of his First Amendment rights to appear on their programs are without constitutional merit. The Supreme Court held over 20 years ago that in the context of government-owned and operated media, "the First Amendment of its own force does not compel public broadcasters to allow third parties access to their programming."[33] In Arkansas Education Television Commission v. Forbes, a public television station's editorial judgments regarding private speech presented to its viewers did not violate any First Amendment rights because:
Public and private broadcasters alike are not only permitted, but indeed required, to exercise substantial editorial discretion in the selection and presentation of their programming. . . . Were the judiciary to require, and so to define and approve, pre-established criteria for access, it would risk implicating the courts in judgments that should be left to the exercise of journalistic discretion.[34]

Although Plaintiff alleges that PCN decided it did not want "to air [Plaintiff's] political content [that PCN] found objectionable,"[35] it is well within the broad discretion of broadcasters such as PCN to choose among speakers expressing various viewpoints.[36] "Much like a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum, a broadcaster by its nature will facilitate the expression of some viewpoints instead of others."[37] Similarly in the context of radio broadcasting regarding NPR and WHYY, "radio broadcasting station[s] [are] not [] public utilit[ies] in the sense that [they] must permit broadcasting by whoever comes to [their] microphones."[38] Because Plaintiff lacks any First Amendment rights to freely access PCN, NPR, or WHYY, all of whom exercised their constitutionally broad discretion in rejecting his requests, Plaintiff has failed to assert a viable § 1983 claim under the First Amendment.

     B. Cable Communications Policy Act of 1984

Plaintiff has brought prior cases asserting claims under § 531(e) of the Cable Communications Policy Act of 1984, and such claims "have been rejected repeatedly."[39] Nevertheless, Plaintiff again asserts such a claim against Defendants in this case.[40]Although Plaintiff did not cite to any specific section of the statute, it appears that he is bringing his claims under § 531(e) since it provides that "a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity . . . except [where it] contains obscenity, indecency, or nudity."[41] As has been explained repeatedly, there is no private cause of action under § 531(e).[42]

Moreover, none of the Defendants in this case are "cable operators," which are defined as:
[A]ny person or group of persons (A) who provides cable service over a cable system and directly through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.[43]
"Courts have routinely interpreted the term 'cable operator' under the statute to apply to cable companies such as Verizon, Comcast, and Time-Warner, rather than individual television stations . . . or station managers."[44] Here, Plaintiff is alleging claims against a television network, two radio companies, and two public library systems, none of which could be construed as falling within the statute. Thus, Plaintiff's claims will be dismissed with prejudice.

     C. Civil Rights Act of 1964

Plaintiff also asserts a claim under the Civil Rights Act of 1964, but does not specify which Title of the Act is implicated in his claim. To the extent that he may potentially be asserting a claim for a violation of Title II, which prohibits discrimination in places of public accommodation, his claim is without merit.

Title II of the Civil Rights Act of 1964 provides: "All persons shall be entitled to full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin."[45] Plaintiff fails to allege whether any Defendant qualifies as a place of public accommodation.[46] Moreover, even if any of the Defendants could qualify as public accommodations, Plaintiff has not asserted any viable claim as to a denial of his ability to enjoy the full use of Defendants' facilities and privileges on the basis of his membership in one of the listed protected classes under this statute.[47] Instead, Plaintiff demands that Defendants provide a forum for his views, which goes far beyond access on the same terms as others, and which clashes with Defendants' broad discretion within the confines of the First Amendment to determine what information may be relayed through their facilities. Plaintiff therefore has not been denied any right under the statute. As such, Plaintiff's claims under the Civil Rights Act of 1964 will be dismissed with prejudice.

     D. Equality Act of 2010

Plaintiff alleges that Defendants violated "the tenants of the Equality Act of 2010." The statute to which he refers appears to be a legislative act of the Parliament of the United Kingdom, and therefore is not applicable to this action.[48]

IV. LEAVE TO AMEND AND MOTION ADD DEFENDANT

In civil rights cases generally, the Third Circuit has held that courts must allow amendment, unless doing so would be inequitable or futile.[49] In this particular case, because Plaintiff has stated no plausible claims against Defendants, including any violations of his First Amendment rights under § 1983, the Court finds that amendment would be futile.[50] Thus, leave to amend will be denied and Plaintiff's pending motion to add Lower Merion Township to the Complaint will be dismissed as moot.[51]

V. CONCLUSION

For the foregoing reasons, Defendants' motions to dismiss will be granted, Plaintiff's claims will be dismissed with prejudice and without leave to amend, and Plaintiff's motion to add Lower Merion Township will be dismissed as moot.

An appropriate order follows.


____________________


[1] The following facts, unless otherwise noted, are taken from the Complaint and assumed to be true for purposes of the motions.

[6] Id. at 570.

[7] Id. at 562 (internal quotation marks and citations omitted).

[12] Compl. [Doc. No. 1] ¶ 1.

[13] The Third Circuit has previously held in the § 1983 context that the Commonwealth of Pennsylvania's involvement with a public library was significant enough to find that the state was a joint participant with the library. Hollenbaugh v. Carnegie Free Library, of Connellsville, Pa., 545 F.2d 382, 385 (3d Cir. 1976). The decision was based on applying a nexus test to determine whether the library could be considered a state actor, weighing a series of factors including the percentage of the library's funds which came from state and local government financing, the number of the library's trustees appointed by governmental bodies, the fact that local municipalities passed resolutions designating the library as their agent, and that the city enacted an express tax to support the library. Id. at 384; cf. Chalfant v. Wilmington Inst., 574 F.2d 739, 758-59 (3d Cir. 1978) (holding that because the Wilmington Institute imposed no express tax, its Board of Managers was privately appointed, and there was little evidence of significant governmental involvement, it was not considered a state entity for purposes of § 1983).

[14] Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992) (citation omitted).

[16] Compl. [Doc. No. 1] ¶ 13.

[17] The Third Circuit's decision in Kreimer v. Bureau of Police, for instance, addressed library policies which regulated the behavior and personal hygiene of persons wishing to freely access the information provided by a library. 958 F.2d 1242 (3d Cir. 1992). In Kreimer, a homeless man was expelled from public library premises due to his history of disrupting other library users and lack of personal care. Id. at 1247. After challenging the library's policy in part under the First Amendment right to receive information, the Third Circuit held that the policy prohibiting behavior inconsistent with the library's purposes in acquiring "knowledge through reading, writing and quiet contemplation" were upheld under a reasonableness standard. Id. at 1261-63. The personal hygiene policy, on the other hand, was subjected to strict scrutiny, but the court upheld that policy as sufficiently narrow in maintaining the library's facilities in a sanitary manner. Id. at 1264.

[18] 539 U.S. 194 (2003).

[19] Id. at 207 (internal quotation marks and citation omitted).

[20] See id. at 205 ("Public library staffs necessarily consider content in making collection decisions and enjoy broad discretion in making them."); cf. Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 871-72 (1982) ("As noted earlier, nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools. Because we are concerned in this case with the suppression of ideas, our holding today affects only the discretion to remove books. In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books . . . .").

[21] See ALA, 539 U.S. at 204 ("Although they seek to provide a wide array of information, their goal has never been to provide 'universal coverage.'" (citation omitted)).

[23] Borrell v. Bloomsburg Univ., 870 F.3d 154, 160 (3d Cir. 2017) (citation and emphasis omitted); see also Glunk v. Noone, 186 F. Supp. 3d 453, 460 (E.D. Pa. 2016) ("The necessary 'close nexus' exists where the state exercises coercive power or provides 'such significant encouragement, either overt or covert,' deeming the conduct state action." (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999))).

[25] Id.

[27] See Gross v. R.T. Reynolds, Inc., 487 F. App'x 711, 719 (3d Cir. 2012) ("[A] private entity does not become a state actor for the purpose of § 1983 simply because it is subject to state regulations or receives funding from the state." (citations omitted)); Crissman v. Dover Downs Entm't Inc., 289 F.3d 231, 244 (3d Cir. 2002) ("[T]he presence of both these elements—regulation and flow of funds—that are separately unpersuasive in the state action inquiry does not amount to more than each alone; the combination brings no greater result— namely, no state action.").

[28] See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (providing that the First Amendment's Free Speech Clause "prohibits only governmental abridgment of speech" (emphasis in original)); Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) ("The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State . . . .").

[29] Halleck, 139 S. Ct. at 1928 (internal citations omitted)).

[30] Compl. [Doc. No. 1] ¶¶ 1, 14.

[31] Id. ¶ 2.

[32] See Halleck, 139 S. Ct. at 1932 ("[T]he 'being heavily regulated makes you a state actor' theory of state action is entirely circular and would significantly endanger individual liberty and private enterprise."). Additionally, it is worth noting that PCN has provided through its publicly accessible website that it is a private, non-profit organization, which "receive[s] no federal or state funding" and "is supported through a monthly per-subscriber fee paid by participating cable companies that carry us on their channel lineup." Reply to Resp. to Mot. [Doc. No. 33] at 5. NPR has noted that various district courts and circuit courts have held that it is a non-profit organization and is not a state actor. Mem. of Law in Supp. of Mot. to Dismiss [Doc. No. 26-1] at 7 (citing Shulman v. Facebook.com, No. 17-764, 2017 WL 5129885, at *4 (D.N.J. Nov. 6, 2017); Abu-Jamal v. Nat'l Pub. Radio, No. 96-594, 1997 WL 527349, at *4 (D.D.C. Aug. 21, 1997), aff'd, 159 F.3d 635 (D.C. Cir. 1998) (per curiam)). As expressed by the Third Circuit, "members of the media and a media company . . . generally do not qualify as state actors." Chambers v. Phila. Media Network Inc., 548 F. App'x 755, 756 (3d Cir. 2014) (citation omitted).

Finally, Plaintiff's primary support in opposition to these Defendants' motions to dismiss derives from two cases involving public, educational, and governmental ("PEG") cable channels which expressly permitted citizens to broadcast their own programs on the stations' channels. Pl.'s Br. [Doc. No. 31] at 2 (citing Demarest v. Athol/Orange Cmty. Television, Inc., 188 F. Supp. 2d 82, 84-85 (D. Mass. 2002); Halleck v. Manhattan Cmty. Access Corp., 882 F.3d 300, 306 (2d Cir. 2018)). Not only are these two opinions unrelated to the instant case, as Plaintiff fails to allege that PCN, NPR, or WHYY are PEG channels or provide PEG channels, but the Supreme Court overruled the Second Circuit case he cites to in Halleck, and held that private non-profit corporations operating PEG channels are not state actors. Halleck, 139 S. Ct. at 1926. Neither of the Defendants are allegedly similar to the PEG channel in the District of Massachusetts case either, which provides: "[PEG] channels are often the video equivalent of the speaker's soap box or the electronic parallel to the printed leaflet. They provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas." Demarest, 188 F. Supp. 2d at 84-85. Although PEG channels may in some cases be treated more analogously to public libraries, as there is more open use allowed by the general public, it cannot be said from the face of the Complaint that PCN, NPR, or WHYY may be viewed in the same manner.

[34] See id. at 673-74.

[35] Compl. [Doc. No. 1] ¶ 19.

[36] See Forbes, 523 U.S. at 673 ("[T]elevision broadcasters enjoy the 'widest journalistic freedom' consistent with their public responsibilities." (citations omitted)). Furthermore, Congress rejected the argument that "broadcast facilities should be open on a nonselective basis to all persons wishing to talk about public issues." Id. (quoting Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 105 (1973)).

[37] Id. at 674.

[38] McIntire v. Wm. Penn Broad. Co. of Phila., 151 F.2d 597, 601 (3d Cir. 1945); see also Columbia Broad. Sys., Inc., 412 U.S. at 107-08 (noting that Congress rejected an attempt to impose "a limited obligation on broadcasters to turn over their microphones to persons wishing to speak out on certain public issues").

[40] Additionally, the Court reminded Plaintiff that "he is bound by Federal Rule of Civil Procedure 11 and may be subject to sanctions for future filings that are frivolous or presented for an improper purpose." Id.

[41] 47 U.S.C. § 531(e).

[42] See, e.g., Strimel, 251 F. Supp. 3d at 840 ("Plaintiff cannot assert a claim under Section 531(e) of the Cable Communications Act because that provision provides no private right of action . . . ."); Egli v. Strimel, No. 14-6204, 2015 WL 5093048, at *3 n.5 (E.D. Pa. Aug. 28, 2015) (Restrepo, J.) ("Plaintiff's claim under 47 U.S.C. § 531(e) would fail because Section 531(e) does not provide for a private right of action to enforce violations." (citation omitted)); Egli v. Comcast of Pa., No. 03-6231, 2004 WL 2166301, at *1 n.1 (E.D. Pa. Sept. 22, 2004) (Padova, J.) ("Congress did not intend to create a private right of action for public access users to enforce violations of § 531(e).").

[43] 47 U.S.C. § 522(5).

[45] 42 U.S.C. § 2000a(a).

[46] See id. § 2000a(b) (listing types of facilities covered as public accommodations).

[47] See id. § 2000a(a) (listing "race, color, religion, or national origin" as protected classes under the statute).

[48] Equality Act 2010, c. 15 (U.K.), Table of Contents, https://www.legislation.gov.uk/ukpga/2010/15/contents (last visited August 9, 2018).

[49] Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Dover Steel Co., Inc. v. Hartford Accident & Indem. Co., 151 F.R.D. 570, 574 (E.D. Pa. 1993) ("While under the Federal Rules of Civil Procedure leave to amend pleadings is to be granted with liberality, the allowance is not intended to be automatic." (internal citations omitted)).

[50] See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) ("Futility means that the complaint, as amended, would fail to state a claim upon which relief could be granted." (internal quotation marks and citation omitted)).

[51] In his motion, Plaintiff asks the court to permit him to add Lower Merion Township since he discovered that it owns Ludington Library, which allegedly denied Plaintiff his First Amendment rights, and not Defendant MCLS. Pl.'s Mot. to Add Lower Merion Township to List of Defs. [Doc. No. 21]. Because of his desire to pursue his claims related to the First Amendment under § 1983, which have been determined to be insufficient beyond repair, his motion to add Lower Merion Township will be dismissed as moot.


—
at No comments:

Monday, August 5, 2019

How To Remove Drag Queen Story Hour From Libraries, Part 1: FOIA Library Law

Existing library law and policy can be used to remove so-called "Drag Queen Story Hour" from public libraries.  First get the law by filing a FOIA (Freedom of Information Act) request (using model state FOIA requests from NFOIC and my example below).  Then read the law to see how it applies in your community to prevent harmful activities in your libraries—introducing gender theory to young children is a harmful activity.

Below is the second FOIA request I filed with St. Mary's County Library, and it's to obtain the library law.  Use it as a model for your own FOIA requests.  My first FOIA request to the library and the library's responses thereto can be seen here: "Fulfilling FOIA Requests Is 'Disruptive,' Says Public Library Director."

A major way to know finding and applying existing library law and policy to remove DQSH is effective is that DQSH activists stay intentionally silent on that very point.  Not even the American Library Association discusses this.  DQSH activists completely leave out any mention of existing law and policy that may apply in a library, completely ignoring what the US Supreme Court ruled about the First Amendment in public libraries.  Instead they repeat over and over and over that the First Amendment controls so anything, absolutely anything goes.  See, "Maryland County Punishes Library for Hosting Drag Queen Story Hour, but Atheist and LGBTQ Organizations are Fighting Back," by American Atheists, American Atheists, 30 July 2019, emphasis mine:
  • "The Commission’s action of partially defunding the Library ... raise[s] serious First Amendment concerns."
  • "The undersigned write to advise both the Commission and the Library of their obligations under ... the First Amendment."
  • "Moreover, the partial defunding ... ha[s] a chilling effect on the expressive activities of SMASH and PFLAG of Leonardtown. A government agency violates the First Amendment when it takes a regulatory or proscriptive action that creates 'a non-speculative and objectively reasonable chilling effect' sufficient to deter '[a] person of ordinary firmness' from engaging in disapproved expressive conduct."
  • "As a center of knowledge and haven for freedom of speech, it is essential that the Library not be pressured into censoring events held in spaces open to the public."
  • "The First Amendment does not permit a 'heckler’s veto.'"
  • "The First Amendment prohibits the vesting of such unbridled discretion in a government official."
  • "When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant."
That's a lot of First Amendment arguments—so it must be true, right?

Here are the American Atheists arguments about the law that defines the library and the duties of the library board of trustees to properly manage the library, and the right and duty of the County Commissioners to ensure the library board acts within the law, perhaps by charging the library for its excesses that have occurred as a result of a failure to comply with the law and their own policy:
  • Nothing.
  • Silence.
  • Don't look at the law, instead, look over here: First Amendment, censorship, freedom of speech, heckler's veto, and more First Amendment.  This is America!
The First Amendment does not apply to harmful activities that violate library laws and policies.  As to the law and the policy that does apply, the American Atheists won't even mention that.  That's on purpose.  They don't want people to know existing law and policy can be used to block or remove drag queen story times from public libraries if only people and their governments become aware of those laws and actually applied them.

By the way, it does not help the American Atheists already false arguments to flat out lie to St. Mary's County Commission in its 29 July 2019 email. American Atheists, a tiny business in a light industry industrial park in Cranford, NJ, on the side of the New Jersey Parkway, inflated its membership 100 times to appear like a significant organization.  Its letter says it has "more than 350,000 members and supporters across the country," but its 2017 Form 990 says, "THE ORGANIZATION HAS OVER 3,500 MEMBERS IN ALL 50 STATES OF THE USA."  To be thorough, I checked the American Atheists Inc 2016 Form 990 and it too lists 3,500 members, 2015 Form 990 = 3500 members, 2014 = 3500, 2013/3500, 2012/3000, 2011/3000, 2010/3000.  Before that no numbers are reported.  So they are misleading the Commissioners about their membership numbers by saying 350,000 instead of 3,500.  And isn't it odd membership numbers only changed once over the course of eight years?  How can this organization that misleads the Commissioners and appears to mislead the federal government about membership numbers be trusted to assert knowledge of First Amendment law, or anything for that matter?

And one of the signers of that letter, Samantha McGuire, made a public admission that drag queen story hour is not about literacy, it's about "normalizing abnormal behavior" with flat out false information—remember, libraries block any positive material at all about ex-gays or reparative therapy because librarians view that as flat out false, but someone saying there are an unlimited number of genders, which is flat out false, somehow is supposed to have a First Amendment right to "sneakily" push that false view on children in public libraries:
T-Bone: What do you say, what do you say to people who say this, what you're trying to do is trying to legitimize or, for lack of better word, normalize abnormal behavior?  
Samantha McGuire: So I would argue it's not necessarily abnormal behavior, firstly. Um, and I would say that yes, I am trying to normalize it. I'm trying to normalize the idea that there are, um, infinite versions of human beings on this planet and why is that wrong?" 
Source: "T-Bone and Heather With Samantha McGuire," Conversations With T-Bone and Heather, YouTube, 18 July 2019 at 16:39.
Here is my second FOIA to St. Mary's County Library that can be used as 1) a model for filing your own FOIA for library law and that 2) explains how library law and policy should run local libraries, not the American Library Association that specifically trains librarians to circumvent communities and laws so as to target children:


Second FOIA Request:


FOIA Request - St. Mary's County Library - #02

From: Safe Libraries Sat, Aug 3, 2019 at 3:47 AM

To: smclboard
Cc: csmc@stmarysmd.com, Michael Blackwell , info@stmalib.org

Dear St. Mary’s County Library Board of Trustees,

This is a FOIA request.  Under the Maryland Public Information Act Title 4, I request copies of public records, specifically, the statutory basis for St. Mary's County Library.  I ask that they be made available to me via electronic means such as attaching a PDF document in a response to this email.

Please waive all fees since the disclosure of the requested information is in the public interest and will contribute significantly to the public’s understanding of how the library is managed and whether it acts in compliance with the law and its own policies, as I will explain further below.  This has become a concern ever since the County Commissioners have acted to require the library trustees to pay for police services provided to the library board at the so-called “Drag Queen Story Hour” on June 23, 2019.  It raises the issue that the library may have acted outside the law, and the County Commissioners may have acted to force compliance with the law.  I have been reporting on libraries violating various laws and policies for almost two decades and this request is related to news gathering purposes.  This information is not being sought for commercial purposes.  Should you refuse to provide free records to the media for disclosure to the public in a noncommercial fashion, then if there are any fees for searching or copying these records, please inform me if the cost will exceed $25.

The Maryland Public Information Act requires a response to this request within 30 days.  If the records I am requesting for ultimate public disclosure will take longer than this amount of time, please contact me with information about when I might expect copies of the requested records.

If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law.

Thank you for considering my request.

Here are the documents for which copies are requested.  Keep in mind I am attempting to determine what the law says about the scope of what St. Mary's County Library may do legally.  For example, it may be unlawful for the library to present or allow to be presented to the public programs that are harmful to the public.  If the library acted outside the law, then the County Commissioners are not constrained by the library's autonomy to act within the law, and indeed may have a duty to act to restrain the library trustees to act within the boundaries of the law that created the library.  If that is the case, the County may not only have had the right to charge the library for the police security fee, but it may have a duty to stop the library from acting outside the law by any means it deems fit.  And if the library is acting outside the law, then all First Amendment arguments are fruitless.  There is simply no First Amendment right to violate the law that created the library—for example there is a First Amendment right to Internet p-rn-graphy but the US Supreme Court ruled it may be legally blocked from public libraries.  Similarly, there is a legitimate and even compelling concern that "Drag Queen Story Hour" is a harmful activity, harmful to the children attending the event, harmful to the LGBT community itself, and harmful to the County by allowing itself to be exposed to liability for actions that may fall outside the law, some of which are exemplified in, "Parents Explode As Republicans Refuse to Defend Kids From Library Drag Queens”: https://www.lifesitenews.com/news/parents-explode-as-republicans-refuse-to-defend-kids-from-library-drag-queens   And having parents who wish their children to attend such events is not a reason for the library to violate the law that created it—the parents can simply go to a bookstore or public park or other venue that is presenting "Drag Queen Story Hour." For right now, it is important for the public to see the law that created the St. Mary's County Library.  Therefore, please provide:

1)  Copies of public records that comprise the statutory basis for St. Mary's County Library, including the powers or duties of its Board of Trustees and its Library Director.  In other words, I seek a copy of the most recent statute or statutes that created St. Mary's County Library at its inception, including a copy of the most recent statute or statutes that lists the powers or duties of St. Mary's County Library Board of Trustees and St. Mary's County Library Director.

That is all I seek in this MPIA/FOIA request.

Here I wish to report that correspondence from the Library Director to me within the past two days has been unprofessional and he has even stated he will ignore further emails from me, "In the interim, I shall not respond to communications from you."  My understanding is he is the designated FOIA officer and as such he may be acting illegally by threatening not to read my emails and perhaps even by not responding to this FOIA request for the law that instantiated the library.  Please ensure that MPIA/FOIA is not subverted by his unprofessional actions.  I may have to report his actions to the state's Attorney General depending on the circumstances related to him—I simply will not be bullied by his unprofessional behavior and he has no right to block the public from public documentation to which it is entitled under MPIA, and I am an investigative reporter working to expose documents material to the public's interest.

I already have grounds to report what appears to be his illegality to the AG.  Micheal Blackwell is playing fast and loose with the law, thereby thwarting the legislative intent and even the plain language of MPIA.  I want you to consider this so that you can exercise some sort of control over his unprofessional and likely unethical and illegal behavior, in both this FOIA response and in the response to my FOIA request of a few days ago.

Let me explain.  My FOIA request of a few days ago requested 10 things.  He responded that he could get me a certain subset in about two hours, but the rest would take a really long time to find and cost a large amount of money.  He charged another reporter about $1,600.00 for a FOIA response, but I digress.  “My time is valuable,” he scolded me.  So I responded by dropping my requests for the material he said would take a long time to get and cost a lot of money, including even the request for records about whether the drag queen was given a background check and what were the results.  Basically, Blackwell’s bullying ballestra worked to hide records from the public, even after they were requested by an investigative reporter.

With the dropping of the longer requests I only kept the ones he said he could get in two hours: “Since any communications on points 1 – 5, exclusive of #3 as already discussed, would have been addressed to me or to an online system for reserving meeting rooms, or involve payments made to us, I can probably prepare responses to them in two hours.”  So, after amending my initial FOIA request to just what he said he could get in probably two hours, I expected to get the response quickly so I could report to the public quickly.  But it was not to be.  Even though I had dropped the longer/costly requests to only those he said he could get in two hours, he decided instead to break the law and to make me wait 30 days for what he already said would take only two hours to get: “You will have my response to your request by 30 days, August 31st.”  This is illegal.  This violates MPIA.  How do I know?  I looked at the MPIA Manual published by the AG: http://www.marylandattorneygeneral.gov/OpenGov%20Documents/PIA_manual_printable.pdf  Quoting, “C. Time for Response; Under GP § 4-203(b)(1), if a custodian determines that a record is responsive to a request and open to inspection, the custodian must produce the record ‘immediately’ after receipt of the written request. An additional reasonable period ‘not to exceed 30 days’ is available only where the additional period of time is required to retrieve the records and assess their status under the PIA. A custodian should not, however, wait the full 30 days to allow or deny access to a record if that amount of time is not needed to respond.”  Michael Blackwell stated he needed probably two hours of time to obtain the records, and he stated the records that would take probably two hours to get would be delivered in 30 days.  “A custodian should not, however, wait the full 30 days to allow or deny access to a record if that amount of time is not needed to respond.”  Michael Blackwell is already acting illegally.  And it’s the people for whom the law was written who are suffering as a result, not me personally.

The library director's actions are so egregious I have written about them here: “Fulfilling FOIA Requests Is 'Disruptive,' Says Public Library Director” https://safelibraries.blogspot.com/2019/08/fulfilling-foia-requests-is-disruptive.html

This present document request seeking the law that created the library is of extreme interest to the public.  Why?  So the public may learn what is and what is not allowed by law in its public library.  You see, there is a question whether the public library is being responsive to the public or to the American Library Association, an organization based in Chicago, IL, that has made “social justice” its top goal, specifically setting aside literacy.  If the library trustees were responsive to the public, they would follow the law.  If they are responsive to the ALA, they would jettison or simply ignore the law, as it appears they may be doing right now.

You see, libraries are usually created statutorily for the use and benefit of the public.  You cannot have just anything at all in public library, it has to be for the use and benefit of the public or it has to be proper.  Just because there’s a First Amendment right to something does mean the library must allow it.  There’s a First Amendment right to Internet p-rn-graphy, for example, but that right does not extend to public libraries.  ALA lost big on this case, United States v. American Library Association, 539 US 194 (2003): http://caselaw.findlaw.com/us-supreme-court/539/194.html  Here are quotes from the SCOTUS case, “Public libraries pursue the worthy missions of facilitating learning and cultural enrichment.”  “Although they seek to provide a wide array of information, their goal has never been to provide ‘universal coverage.’ …. Instead, public libraries seek to provide materials ‘that would be of the greatest direct benefit or interest to the community. …. To this end, libraries collect only those materials deemed to have ‘requisite and appropriate quality.’”

Facilitating learning.  Cultural enrichment. Direct benefit.  Requisite and appropriate quality.  These are the concepts that make a library.  This are embodied in the laws that instantiate libraries. P-rn-graphy is not included in that, so it may be legally blocked from libraries.  Well the same goes for so-called “Drag Queen Story Hour.”  It’s a cute name and there are rainbows and butterflies and happy songs and silly dances, but studies are showing that inducing gender confusion in children may cause harm.  We all know this but are bullied into not saying this publicly.  And ALA is using that squeamishness to push into public libraries something that is just as harmful to communities as is Internet p-rn-graphy—indeed even St. Mary’s County Library’s own children’s librarian Tess Goldwasser works with ALA to “sneakily” push ALA agenda on children.  Sure, we all have a First Amendment right to such material, but in a public library, such material may be legally excluded despite the First Amendment.

And even if parents say they what their children to be exposed to “Drag Queen Story Hour,” that still does not give the library the right to subvert the law to make that happen in a library.  If parents want that, go to a bookstore or other private business like Whole Foods or even a public park to see that, but something harmful is simply illegal in libraries, gender confusion is harmful for children, and “Drag Queen Story Hour” is specifically about gender confusion—and not literacy, by the way.  So to make a determination of what is and what is not legal in St. Mary’s County Library, one must look at least to the statute that created the library.  That is what I am seeking in this MPIA/FOIA request.  That is why this request is so important to the public.

By the way, my request is for the law that instantiated St. Mary’s County Library, not for general laws such as § 23-405(f) “Each board of trustees may: … (6) Do anything else necessary for the proper control and development of the library.”  That general law is significant too, but so is the specific law that instantiated St. Mary’s County Library.  Notice the general law requires library trustees to do things for the “proper control and development of the library.”  Introducing children to gender confusion, among other concerns about “Drag Queen Story Hour” such as its use for virtue signaling without even the slightest concern about the LGBT community, is not “proper” in a public library, and Maryland law specifically requires “proper control and development of the library.”  Why is that word “proper” even there if it doesn’t mean what it says?  But let’s also see the law that created the library in the first place, let alone what the US Supreme Court said.

It is especially important for the public to know the law since the bullying tactics are mounting up to force the County Commissioners to allow the library trustees to do what ALA wants instead of doing what the law says:

In a July 19 Facebook post, MD House Delegate Brian Crosby says: “The fact is that in this situation, our commissioners are playing politics with our library. …. Second, this is really about denying the constitutional rights to free assembly and free speech. …. These commissioners are circuitously denying people their first amendment rights. …. Lastly, I know many of you are curious about an ACLU and AG lawsuit. I am aware and am in contact with several legal offices. I’m not sure where they will go with this, but I can assure you that restricting constitutional rights because of a personal disagreement isn’t a game, and I’d proffer returning the $2,500 penalty instead of using taxpayer dollars to fund a legal defense.” https://www.facebook.com/bc4md/photos/a.1911753509073805/2300404876875331/

In a July 25 report, “County Attorney David Weiskopf confirmed Tuesday that he would be speaking with officials from the Maryland Attorney General’s Office this week about the county’s dealing with the library system. …. ‘Our office will be having a conversation this week… to get the details of the event and the transfer of funds,’ Coombs said. ‘We are just having a conversation at this point.’” https://countytimes.somd.com/archive/2019/07-jul/2019-07-25.pdf

In a July 30 report, “Yesterday, American Atheists, Southern Maryland Area Secular Humanists (SMASH), PFLAG National, and PFLAG’s Leonardtown chapter sent a letter to the commission warning that the organizations ‘are prepared to seek judicial remedies for [the] violation of their rights.’” https://www.atheists.org/2019/07/drag-queen-story-hour-maryland/

These are all bullying tactics meant to force a decision fast, without anyone taking the time to think and to look at the law.  This MPIA/FOIA request is part of an effort to get to that law.  The County government may not control what a library does when it acts within the law that created it (§ 23-401(a): “The governing body of each county may establish … a county public library system free from political influence.”), but when library trustees step outside the law, and it is quite possible they may have by allowing harmful material—and it doesn’t matter whether that was in the library itself or in one of the library’s public meeting rooms, whether or not the room was rented—then the County Commissioners have the right and the duty to force the library trustees to act within the law.  That minor $2,439.38 security fee shifting from the library may be the County Commissioners acting quite legally to ensure the library trustees comply with the law, and indeed, that may have been the most efficient, least obtrusive way to go about requiring the library to act within the law, both the state law and the law I am seeking with this MPIA/FOIA request.

So let’s look at the law.  Certainly that can be obtained and returned to me within a day, right?  It’s the library’s founding document, after all.  Michael Blackwell will not be blocking my receipt of that law for 30 days, right?

By the way, has anyone noticed what the library’s public meeting room policy says in bold type, and it’s the only text in bold type?  “Any use of the room which disturbs library customers or operations is prohibited.” Besides the law, are the library’s own policies being ignored as well?  That could be a subject of investigation for a future FOIA request. https://www.stmalib.org/about-us/library-policies/meeting-room-policy/

Thank you very much for your attention to this matter.

Sincerely,

Dan Kleinman
SafeLibraries® brand library educational services
641 Shunpike Rd #123
Chatham, NJ 07928
973-610-8296



NOTE ADDED 6 AUGUST 2019:

The library replied to my second FOIA request, basically saying go fish, and I responded to that, basically saying they are not complying with the law.  Both are below.  Don't be bullied!  Notice they leave out the FOIA officer Blackwell who threatened to stop corresponding with me, so I added him back since he's the FOIA officer.


Response From Library Board of Trustees:


FOIA Request - St. Mary's County Library - #02

From: smclboard Mon, Aug 5, 2019 at 11:00 AM
To: Safe Libraries , smclboard
Cc: "csmc@stmarysmd.com" , info

Dear Sir,

St. Mary’s County Library, with the duties of its Trustees and Director, was established under the “Laws of Maryland Relating to Public Libraries.” We continue to operate under them.  They are a matter of public record and easily located online.  Please find them through a web search.

The Trustees of St. Mary’s County


Response From Me To Library's Response:


FOIA Request - St. Mary's County Library - #02

From: Safe Libraries Mon, Aug 5, 2019 at 10:56 PM
To: smclboard
Cc: "csmc@stmarysmd.com" , info , Michael Blackwell

Greetings, 

Thank you for responding quickly, however, the response is not substantive. So I still await a substantive response. 

I did not request a citation of what law applies, especially since I cited and quoted that law in my request. FOIA requests may only seek documents, not answers to questions. I received only answers to a question I did not ask. 

I requested a document. Look again at what I requested, “Copies of public records that comprise the statutory basis for St. Mary's County Library, including the powers or duties of its Board of Trustees and its Library Director.  In other words, I seek a copy of the most recent statute or statutes that created St. Mary's County Library at its inception, including a copy of the most recent statute or statutes that lists the powers or duties of St. Mary's County Library Board of Trustees and St. Mary's County Library Director.”

I did not ask for the laws of libraries in Maryland state generally. I asked for the legislation or the like that was passed into law that specifically instantiated SMCL: “I seek a copy of the most recent statute or statutes that created St. Mary's County Library at its inception.” That is the document I seek. I even added the “in other words” section to be clear I was asking for the law/document that instantiated SMCL. 

Please provide a copy of that document and any others related to my original document request, and the original filing date stands since the response so far has been nonsubstantive. 

And, "We continue to operate under them" is a conclusory statement still being investigated.  We already know violating your state's FOIA law is becoming a pattern.

Lastly, public laws are not public records.  So, "They are a matter of public record and easily located online" is false and merely amounts to yet another in what's becoming a string of delaying tactics to avoid making public records public.

To forestall your next delaying tactic, yes, I asked for the law, but I don't want a citation to the law. I want the actual document that instantiated SMCL. It may contains signatures, vote counts, official seals, who knows.  We shall see, yes?

Thank you. 

Dan Kleinman




NOTE ADDED 8 AUGUST 2019:

Yesterday I received a substantive response to this "FOIA Request - St. Mary's County Library - #02" and I republish it below.  It proves Drag Queen Story Hour in the St. Mary's County Library, which presents harmful gender theory, is ultra vires, thus all agreements with the organizers of Drag Queen Story Time in St. Mary's County Library are void ab initio, and the Commissioners of St. Mary's County have the right and duty to stop the library from presenting harmful material in violation of the law.  Drag Queen Story Time may proceed outside the library grounds and not otherwise presented by the library, but may not occur inside the library.

Why?  Look at the law that created the library, freshly uncovered in this FOIA response.  Look at the 1 March 1948 Certificate of Incorporation of the St. Mary's Memorial Library Association, page 1 of the "within instrument," wherein the very first description of the library—the first because it is so important and is the key to the whole library—is that the library must "benefit" the people: "1. To conduct a library for the benefit of the people on a strictly non-profit basis."  This library may not do things that are harmful to the people.  It may only "conduct a library for the benefit of the people."  Drag Queen Story Hour is harmful to the people in a number of different ways, but that's not the subject of this publication.

Suffice it to say harmful activities are not allowed in the library under the law, specifically the Certificate of Incorporation of the St. Mary's Memorial Library Association, the library board is not empowered to act outside the law, and the local government has the right and duty to force compliance with the law.  For example, the Commissioners security fee shifting move regarding police security for the Drag Queen Story Hour is, in itself, legal as the action of the government to force compliance with the law.

Read the law that created your library for yourselves and think, think for yourselves, don't be bullied by the library representatives misleading you about the law or the First Amendment or about me as a reporter of what I uncovered.  You in St. Mary's County have an existing law that requires your library to be for the benefit of the people, DQSH harms the people, so it has no legal basis in your library, and your government has the right and duty to force compliance with the law.  It's that simple.  Take your own law, read it, and apply it!



Here is the library's response to me today, with the attachments linked and renamed by my for clarity reasons:


Substantive Response from Library Board of Trustees


RE: FOIA Request - St. Mary's County Library - #02

From: smclboard Wed, Aug 7, 2019 at 3:42 PM
To: "safelibraries@gmail.com"
Cc: smclboard , Michael Blackwell , "csmc@stmarysmd.com" , "joshua@brewsterlegal.com"

Dear Mr. Kleinman,

I have asked our director, Michael Blackwell, to provide for me the documents you have requested.  He is “responsible for the day-to-day administration and operations of the Library,” and your request is in his purview.

I provide for you three documents of possible relevance.  The first two, dating from 1948, are about the incorporation of the library. They make no mention of the roles of Trustees and Director, but we include them for your consideration.

The library would have been established under the laws of Maryland at the time.  We have no such documents from the state from that time, or any other time.  You might wish to apply to the State of Maryland to see if any such incorporation documents exist, with statute, and if they mention the roles of Trustees and Director. Laws may have changed since 1948. We operate under current “Laws of Maryland Relating to Public Libraries,” of which you are aware.

We have one document that sets out the roles of Trustees and Director, and it is attached.  It is derived from “Laws of Maryland Relating to Public Libraries,” to which you should refer for a full legal statement of those relations.

I, and our other Trustees, am aware of your statements of various legal interpretations and about “bullying tactics meant to force a decision fast, without anyone taking the time to think and to look at the law.” We cannot comment individually or as a board, or recommend action on your statements, without a meeting. Our next Trustees meeting is in September. We may consider your points then.

All future requests for documents should go directly to Mr. Blackwell, whom we empower to conduct daily library operations and to whom we will refer all requests for action. Our board cannot conduct public business without meeting, and I do so now individually only reluctantly in response to this specific request since providing documents does not involve board discussion or a need to vote and since Mr. Blackwell provides them as part of his duties. Your email to us has included several legal interpretations from you. Because of this, any email to us or to Mr. Blackwell should also include our attorney, Joshua Brewster, who is copied on this email.

Carolyn Guy, President, Board of Library Trustees for the St. Mary’s County Library  

3 attachments
  1. 2019 04 16 - Bylaws of the Board of Library Trustees St Marys County.pdf 244K
  2. 1948 03 01 - Certificate of Incorp of the St Marys Memorial Library Assn.pdf 2M
  3. 1948 01 - Articles of Incorp of the St Marys Memorial Library Assn Inc.pdf 257K




—

Top graphic credit—coincidentally another county government that stopped another drag queen story hour in a library.


at 3 comments: