Letters of the Law is a column exploring a wide range of legal issues that arise in libraries. It is written by two leading authorities: Mary Minow, a librarian with a law degree, and Tom Lipinski, a lawyer with a library degree. Together they have authored four books on the subject, including The Library’s Legal Answer Book (ALA Editions, 2003, with a new edition forthcoming in 2021), and led forums at American Library Association (ALA) conferences in collaboration with the Public Library Association (PLA).
This month, Mary Minow answers a reader question on displaying controversial books and then weighs in on patrons taking cell phone videos of library staff and the legal status of service animals.
Look for a new column by Tom Lipinski in April. Send questions or topics you’d like to hear about to Associate Editor Sallyann Price at firstname.lastname@example.org.
Is the library obligated to purchase or display books that further political conspiracy theories? What is the responsibility for the display of books that are called “nonfiction” but are not based on facts? (Submitted by Ella M., Maryland)
Generally, libraries are not required by law to acquire any particular titles, nor to put them on display (with the exception of government depositories). Publicly funded libraries (public libraries, public academic libraries, and public school libraries) are subject to constitutional scrutiny if they withdraw a title based on its content or viewpoint. The most notable case on this point is the Supreme Court’s Board of Education, Island Trees Union Free School District v. Pico (1982). Pico has been interpreted by many lower courts to ensure that a book has not been withdrawn because of the content or nature of the book’s ideas.
Private libraries are generally permitted to withdraw titles for any reason (with the notable exception of academic and school libraries in a state like California that extends free speech protections to private schools), but such a withdrawal would likely violate the library bill of rights and ALA Code of Ethics.
The responsibility for the display of books is at the discretion of a particular library or its parent organization.
What rights do patrons have to film, photograph, and record library staff, as we’ve seen with the rise of “First Amendment audits”?
Employees of public institutions are subject to the public’s First Amendment right to record public officials in public places, unlike private libraries, which have far greater latitude to make their own rules on recording. This right to record is broad but not unlimited. Even in public institutions, well-marked private offices and other areas not open to the public are off limits. And the library, as a limited public forum, can regulate some activities in its public spaces that do not align with its stated mission of providing access to information.
Many court decisions have upheld (and none have denied) the public’s right to record police officers, for example, citing significant public interest. Although there aren’t any library court cases to date, some circuit-level police recording decisions, such as Glik v. Cunniffe (2011), note that the filming of government officials engaged in their duties in a public place, such as police officers, fits comfortably within the First Amendment. For other court cases, see the Digital Media Law Project’s guidance on Recording Police Officers and Public Officials.
When it comes to patron behavior, the courts have disagreed on the nuances of time, place, and manner restrictions on speech. When trying to apply these cases to a library, it is useful to look at other reasonable time, place, and manner restrictions already in place. Essentially, behavior rules and rules against obstructing entrances can be applied. In the oft-cited Kreimer case (1992), a federal appeals court upheld the following two patron behavior rules at a New Jersey library as consistent with the First Amendment:
- Patrons shall respect the rights of other patrons and shall not harass or annoy others through noisy or boisterous activities, by staring at another person with the intent to annoy that person, [or] by following another person about the building with the intent to annoy that person….
- Patrons shall not interfere with the use of the library by other patrons, or interfere with library employees’ performance of their duties.
The more restrictive a library’s rules limiting photography and recording in its public areas, the more critical it is that the rules undergo review with a local attorney. Some longstanding rules that restrict filming may have originated as efforts to prevent disruption caused by the use of large equipment. Such rules do not necessarily apply to hand-held cameras or smartphones, when the filming is not inherently disruptive.
In general, the library should permit a person who is filming an employee to record unless it interferes with municipal operations, is disorderly, or violates other ordinances or laws, including public harassment laws.
Although state eavesdropping laws (which apply to audio and audiovisual recordings, but not silent video recordings) may come into play, they are unlikely to apply to a recording of library staff in a public place. In at least one case, a federal appellate court ruled that the free speech interests of citizen surveillance overrode a state anti-eavesdropping law, at least in the case of recording law enforcement. The court noted the importance of open conversation on the inner working of government affairs and took strong notice that the conversations in question had no reasonable expectation of privacy, as they were in a public place. See ACLU v. Alvarez (2012).
See also “Auditing the First Amendment at Your Public Library” (Intellectual Freedom blog, Oct. 2, 2019) and coverage of a session on this topic at ALA’s 2020 Midwinter Meeting.
When does a library have to allow people to bring service animals into the building?
Both federal and local law may come into play when it comes to service animals. Under the federal Americans with Disabilities Act (ADA), libraries must allow service dogs to accompany patrons with disabilities in all places where the public is permitted to go. The dog may be of any breed, and additionally miniature horses are permitted under the ADA. The dog (or miniature horse) is not required to wear a vest, and the library may not ask for certification of any kind.
If you are unsure whether the dog is a service animal, you are permitted to ask these two questions (and only these questions): Is the dog a service animal required because of a disability? And what work or task has the animal been trained to perform?
States and localities may require greater accommodation (but not less accommodation) than the federal law. Rebecca F. Wisch at the Michigan State University Animal Legal and Historical Center has compiled a table of state assistance animal laws, a useful starting point for research. While federal law does not consider “emotional support” animals to be service animals, some state, local, or campus provisions do require libraries to allow them entry. For example, San Francisco takes a more expansive approach than the federal government: It requires all city and county agencies to welcome all service and support animals, defined in that jurisdiction as an animal of any species whose presence provides assistance to people with psychological disabilities.
The library may ask a person with a disability to remove their service dog from the library if and only if the dog is out of control and the handler does not take effective action to control it, or if the dog is not housebroken. When there is a legitimate reason to ask that a service animal be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the animal’s presence. For more, review these frequently asked questions regarding ADA.
The information in this column does not constitute legal advice; nor does it necessarily reflect the views of ALA or PLA. It is meant to serve as a starting point for librarians and library lawyers who wish to research the law and consider its applications. Different jurisdictions will have different laws and may even apply the same laws differently. If you require legal advice or expert assistance, we urge you to seek out the services of a competent legal professional.