In June 2018, the American Library Association (“ALA”) adopted a revision to its meeting rooms interpretation of the Library Bill of Rights. The revision stated:
Public libraries are bound by the First Amendment and the associated law governing access to a designated public forum. A publicly funded library is not obligated to provide meeting room space to the public, but if it chooses to do so, it cannot discriminate or deny access based upon the viewpoint of speakers or the content of their speech. This encompasses religious, political, and hate speech. If a library allows charities, non-profits, and sports organizations to discuss their activities in library meeting rooms, then the library cannot exclude religious, social, civic, partisan political, or hate groups from discussing their activities in the same facilities. Allowing religious groups to use the library’s meeting rooms and spaces does not constitute a breach of the First Amendment’s Establishment Clause.(1)
The inclusion of the terms “hate speech” and “hate groups” stirred controversy among rank and file librarians and library advocates nationwide. On August 16, 2018, ALA rescinded the updates to the meeting room interpretation. A new draft is in the works with plans for a final vote prior to ALA Midwinter in January.
Librarians are not the only professionals who struggle with the notion of extending rights and protections to so called “hate groups” and “hate speech.” The United States Supreme Court has struggled for years to balance the government’s interests in protecting victims from fear and disruption on one hand and preserving expressive and individual autonomy on the other. The uproar surrounding the revisions to the meeting room interpretation demonstrates a similar struggle in the library profession, which has historically been comprised of passionate advocates for the concepts of free expression and proliferation of ideas, regardless of viewpoint.
The legal principle that led ALA to include the terms “hate speech” and “hate groups” in the revisions to the meeting room interpretation is the same one that supports the library profession’s faithful commitment to intellectual freedom: the guarantee contained in the First Amendment of the United States Constitution that the government is prohibited from abridging free speech. But the idea of inviting those whose purpose is to demean others on the basis of race, ethnicity, gender, religion, age, disability, or any other similar grounds into the meeting rooms of our public libraries is understandably repugnant to librarians who strive to make the institution a place that is open and welcoming to all.
First Amendment scholars contend that the purpose of free speech protections is to prevent the government from deciding and dictating how individuals should think, believe, or feel. Therefore, offensiveness of speech is not a factor in evaluating whether it is expression that is entitled to protection. Relying on the same First Amendment fundamentals, courts have held that a public library cannot impose restrictions on the use of its meeting room that are content- or viewpoint-based (2). In other words, the affiliation of the group wishing to use the room or the topics to be discussed cannot be considered in the library’s decision on whether to allow use of the meeting room.
But, First Amendment rights are not absolute; the Supreme Court has carved out exceptions to protected expression including speech that threatens, harasses, defames, or incites persons to imminent violence. (3) Therefore, it would be reasonable to assume that library meeting rooms can be kept free of gatherings of those with ill intent toward others, i.e., hate groups. The key questions, however, are how to (1) define “hate groups” and (2) identify the group’s intended use of the library meeting room.
In 1990, Congress enacted the Hate Crime Statistics Act, which mandates that the federal government collect and manage hate crime data. The duties under the Act have been delegated to the Federal Bureau of Investigation (“FBI”). Hate groups are defined by the FBI as social groups whose “primary purpose is to promote animosity, hostility, and malice against persons belonging to a race, religion, disability, sexual orientation, or ethnicity/national origin which differs from that of the members of the organization.” (4) The FBI does not, however, identify specific organizations that it considers “hate groups.” Instead, the focus is on the activities in question and whether crimes committed contain the added element of bias against a protected characteristic. The FBI expressly states, “[H]ate itself is not a crime.” (5)
Likewise, library administrators must realize that the expression of hate, prejudice, or bigotry is not unlawful and cannot form the basis for denial of access to otherwise public spaces within a library. Relying on First Amendment doctrine, courts have routinely ruled against public libraries that have denied access to controversial groups. (6) While the bulk of these cases involve a public library’s efforts to prevent religious services from being conducted in meeting rooms, courts addressing concerns about the volatility of subject matter and risk to public safety have been unsympathetic to libraries as well. (7)
It is only when expression crosses into the areas of harassment, true threats, or defamation that First Amendment protections disappear. Certainly, a public library is not required to allow access to a gathering for illegal purposes or for expression not protected by the First Amendment. Rarely, however, would an application for use of a public library meeting room reveal intent to conduct illegal activities. Therefore, regardless of the language settled on by ALA in its meeting rooms interpretation, any decision to deny access to “hate groups” or to prohibit “hate speech” must be made with the knowledge that a court challenge is likely, and without strong indicators that the group in question will delve into criminal activity, a public library will have difficulty in defending such a challenge.
Footnotes
(1) “Revision to Meeting Rooms: An Interpretation of the Library Bill of Rights,” American Library Association, June 26, 2018, accessed August 24, 2018, https://www.oif.ala.org/oif/wp-content/uploads/2018/08/cd-19-3-19-8-62518-18AC_links.pdf.
(2) Minow, Mary Tomas A. Lipinski, and Gretchen McCord. The Library’s Legal Answers for Meeting Rooms and Displays. Q. 3, 2016. Internet resource.
(3) Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words are not protected under the First Amendment); Brandenburg v. Ohio, 395 U.S. 444 (1969) (words which instigate imminent action to violence are excepted from First Amendment protections); Virginia v. Black, 538 U.S. 353 (2003)(true threats do not receive First Amendment protections); Miller v. California, 413 U.S. 15 (1973) (defamatory speech is not protected under the First Amendment); Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629(1999) (harassing speech, words which cause a material disruption to the life of another individual, is an excepted from First Amendment protections).
(4) Federal Bureau of Investigation, Hate Crime Data Collection Guidelines (U.S. Department of Justice, 1999).
(5) Federal Bureau of Investigation, “What We Investigate: Hate Crimes,” accessed August 26, 2018, https://www.fbi.gov/investigate/civil-rights/hate-crimes.
(6) Concerned Women for America, Inc. v. LaFayette County, 883 F.2d 32 (5th Cir. 1989) (public library enjoined from denying use of its public auditorium to a prayer group); Pfeifer v. City of West Allis, 91 F.Supp.2d 1253 (E.D. Wis. 2000) (public library’s denial of use of a public meeting room for a program on creationism violated the First and Fourteenth Amendments); Citizens for Community Values, Inc. v. Upper Arlington Public Library Bd. of Trustees, 2008 WL 3843579 (S.D. Ohio Aug. 14, 2008) (public library enjoined from prohibiting use of its meeting room for religious activities).
(7) Hale v. Shaumburg Township District Library, No. 1:01-CV-2220 (N.D. Ill. June 7, 2001) (public library agreed to allow white supremacist to speak in its auditorium after district court refused to dismiss the suit filed by the speaker).
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