Free Speech for the Smartphone Era

Exploring the First Amendment’s implications for social media and video

January 26, 2020

When the First Amendment was written, no one could have imagined library patrons walking around with video cameras in their pockets and massive social networks at their fingertips. How can libraries balance the right to free speech with the complex realities of the smartphone era?

Deborah Caldwell-Stone, director of ALA’s Office for Intellectual Freedom (OIF), and Theresa Chmara, general counsel for the Freedom to Read Foundation, led a session on these hot-button legal issues in a January 25 session at ALA’s Midwinter Meeting. The presentation focused on the responsibilities of the public library in moderating social media commentary and regulating photography and videotaping on their premises.

Chmara reviewed some relevant legal principles and case law, clarifying the public library’s role as a designated public forum—designated for the specific purpose of providing access to information. Any restrictions on speech in library spaces, even a Facebook page, are subject to strict scrutiny.

Though no case specifically addressing social media in public libraries has yet made it to trial, Chmara pointed to case law around meeting room policies as a useful analog. In multiple cases, courts have found that the library did not have a compelling interest in banning specific groups from meeting rooms. She also reviewed similar cases regarding social media and government entities, such as a sheriff’s office that removed a critical comment from its Facebook page (Robinson v. Hunt County, Texas, 2019).

In the last several months, libraries across the country have reported experiences with self-proclaimed “First Amendment auditors” attempting to capture government wrongdoing, and perhaps gain YouTube fame.

“Given the possible chilling effect on individuals’ library usage, the threat to the library user’s right to privacy, and potential threat of harassment posed by third-party photography or recording, it is reasonable for the library to regulate that behavior in a manner that preserves the individual patron’s right to receive information free from harassment, intimidation, or threats to their safety, well-being, and privacy rights,” Caldwell-Stone wrote in a blog post on the subject.

Chmara urged libraries to carefully review their mission statements and written policies around patron behavior, keep thorough documentation of any incidents that led to changes in policy, and keep language specific and straightforward. She also highlighted the importance of staff training for such encounters.

“The folks doing this are going to be aggressive and they’re going to put your staff in a tight spot,” she said. “It’s going to be uncomfortable, it’s going to intimidating, and you want them to know exactly how to handle it.”

Read more about libraries experiencing First Amendment audits in our January/February issue, and explore OIF’s resources for public libraries.


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