RAQs: Recently Asked Questions

Topic: Follow-up to Minor Employees and Obscenity in Libraries - 11/05/2021
[NOTE:  This question was submitted in response to the guidance posted at https://www.wnylrc....
Posted: Friday, November 5, 2021 Permalink

MEMBER QUESTION

[NOTE:  This question was submitted in response to the guidance posted at https://www.wnylrc.org/ask-the-lawyer/raqs/228].

After sharing your reply with my board, we have a follow-up question seeking clarification. The question is in regards to the following paragraph:

In that regard, I can only say that inviting concerned parents to review the library's well-thought-out accession, cataloging, and appeal policies is a pro-active way to ensure parents know that the library takes both its role as an employer of their child, and as a champion of a community's intellectual freedom, seriously. Parents or guardians of minors working in New York will have already had to sign working papers; no waiver or disclaimer should be further required.

My president reads your first sentence (and the word "pro-active") and thinks that your advice is to reach out to parents upon or before the hire of a minor in order explain these policies and allay any concerns. If so, then which? Before, or after?

Whereas, I read your second sentence and think that you're saying that we're not liable -- we already have the parent's permission -- but that parents who then express their "concern" to me about any of the training materials should be given said spiel.

Can you please clarify? Thank you!

WNYLRC ATTORNEY'S RESPONSE

This question is an example of why clear, precise writing is so important.

To make sure no reader is in suspense, first I'll answer the member's question: I intended the guidance to convey the member's interpretation (with the information about accession, cataloging and appeal policy being supplied only after a parent expresses concern).

Re-reading my answer, I can see how the member’s president interpreted this guidance not as a reaction, but as a preemptive strategy to head off parental concerns.[1]  But that is NOT the guidance I intended, and I have since added a footnote[2] to the original posting to clarify that.[3]

While I have your attention on this, I will add: except for factors required by law (like requiring working papers, limiting certain activities in certain industries, and abiding by child labor laws), I don't advise treating minor employees differently than any other employee. If a library wouldn't contact the parents of a 40-year-old worker to alert them to the fact that, from time to time, a library worker may be exposed to content or communications they find objectionable, it shouldn't be done for a 17-year-old either. Except for when it is required by law, employees should not be differentiated by age, just as they should not be differentiated by gender, race, or religion.

Thank you very much to the member for giving me this chance to post a clarification, and this caveat.



[1] That is what I get for using a buzzword like "pro-active."  Although...is it a "buzzword" anymore? What happens when a buzzword gets tired?  Is it a "dunzzword"? 

[2] Here is the footnote: "We received a request for clarification about when to use this tactic.  As posted in the clarification here [https://www.wnylrc.org/ask-the-lawyer/raqs/241] I intended this guidance to convey that the information about accession, cataloguing and appeal policies be supplied only after a parent expresses concern."

[3] I could of course just have made an edit, but we don't hold with that 1984-style memory adjustment here.

 

Tags: Employee Rights, First Amendment, Management, Policy, Obscenity

Topic: Minor Employees and Obscenity in the Library - 08/06/2021
I appreciate your thorough treatment of the topic of pornography in libraries, especially couching...
Posted: Friday, August 6, 2021 Permalink

MEMBER QUESTION

I appreciate your thorough treatment of the topic of pornography in libraries, especially couching it in the larger context of objectionable content. Our library's policies and staff training take a similar approach.

In reviewing our Employee Handbook, our fairly standard Sexual Harassment Policy, and my staff training & orientation on the topic, one trustee raised the question of the library's liability in the case of minors -- specifically, minor employees -- being subjected to viewing pornography in their workplace. The trustee thinks that minors viewing pornography is flat-out illegal, and I don't understand the subject well enough to explain whether it's a civil or criminal liability, or who would be liable in the case of a child glimpsing an adult's perusal of graphic sexual content; or whether we, as employers, should have some kind of parental consent form for minor employees, as we employ Library Pages as young as 14 years old.

Assuming a set of library policies structured as you have previously advised, what, if any, liability does a library have for minors inadvertently viewing adult pornography? And what, if any, modifications to hiring, training, and workplace procedures do you recommend for minor employees?

WNYLRC ATTORNEY'S RESPONSE

This submission stands at the complicated crossroads of First Amendment, employment law, library ethics, and equal protection.[1]

As such, I could write on this topic endlessly.  But "Ask the Lawyer" is not here to provide endless commentary, but rather, helpful guidance inspired by real-world questions. 

So here is some (hopefully) helpful guidance, centered on a real-world example (culled from my summer reading):

I recently read a powerful graphic novel called "I Know What I Am"[2] about the life and times of artist Artemisia Gentileschi.

Gentileschi was a powerhouse painter in the 17th century.  She was also a survivor of sexual assault, a businesswoman, and a mother who, as portrayed in the comic book, channeled her experiences into her painting.

"I Know What I Am" pulls no punches depicting Gentileschi's life.  The artwork--which re-creates many of Gentileschi's own works, including her different versions of "Judith Slaying Holifernes"[3]--is stark, bloody, and riveting.[4]  The portrayals of sex and sexual abuse do not leave much blood in the gutters.[5]

Of course, as a literary work, "I know What I Am" checks all the boxes for not triggering a charge of "obscenity" as defined in New York (including having literary merit).  But that said, select panels from the book could very easily be regarded as inappropriate for some audiences--and not just for "minors."  The content is very raw, and for those sensitive to certain topics, could exacerbate or evoke trauma.

None of that, of course, creates a legal violation caused by the content itself--even if it is in a library being shelved by a 14-year-old--but it does show why there is a need to consider questions such as those raised by the member. 

Which, using "I Know What I Am" as a focal point,[6] I will now do.

First question:  [Is] minors viewing pornography ... flat-out illegal?

Answer:  The word "pornography" does not appear in the New York State Penal (criminal) Law.  Rather, New York uses numerous defined legal terms (such as "harmful to minors,"[7] "obscenity,"[8] "indecent material"[9] and "offensive sexual material"[10]) to describe criminal acts that can lead to a charges based on providing access to certain content under certain circumstances (including to people of a certain age). 

However, because of the defenses very carefully built into these laws, none of these concepts can be accurately applied to a properly cataloged item being accessed by a minor who is doing their defined job per library policy.

That said, both internet porn and content with undisputed literary merit such as "I Know What I am" could be handled or displayed in a way considered harassing (a civil rights violation), damaging (a personal injury claim), or criminal if the access is gained or forced on/by a minor without adherence to collection and library policies, and job descriptions.

Here are some examples as to how that could happen:

  • A library employee retrieves books with suggestive titles or sexual content and repeatedly leaves them in another page's locker as a prank, and even when it is reported, the library does nothing to prevent it from recurring (sexual harassment);
  • A clerk knowingly and with intent to harm directs a page who is a recent sexual assault survivor to create a book display of "I Know What I Am" [11] (risking a charge of sexual harassment; possible personal injury); worker's comp claim);
  • A community member donates a stack of old "adult" books for the annual book sale and the director knowingly assigns a 14-year-old to inventory them (risking a charge of material harmful to minors, which requires a "sale" element to be actionable);
  • A patron repeatedly violates the library's policy about viewing sexual content on publicly viewable computers, and no one corrects the serial policy violation (risking a charge of display of sexual material, as well as sexual harassment).

Aside from the legal concerns caused by these types of extreme examples, of course, there is the very real and practical concern that parents of a minor employed by a library could take issue with some of the content their child has to work with...even if it is entirely legal.

In that regard, I can only say that inviting concerned parents to review the library's well-thought-out accession, cataloging, and appeal policies is a pro-active way to ensure parents know that the library takes both its role as an employer of their child, and as a champion of a community's intellectual freedom, seriously.[12]  Parents or guardians of minors working in New York will have already had to sign working papers; no waiver or disclaimer should be further required.[18]

Which brings us back to the point the member raised in the beginning of their question: the importance of having--and enforcing--policies that govern accession, appeal, cataloging, display, and sexual harassment/discrimination (careful adherence to job descriptions and good training on how to enforce policy in the moment are essential, too).[13]

In New York, both the criminal and civil law contain robust protections for libraries working with material some may find inappropriate, offensive, or challenging, but those protections do rest on proof of operating in harmony with the law.  By having clear policies and documenting adherence to them, a library can be ready to weather accusations of illegal conduct. 

Which brings us to the member's last questions:

Assuming a set of library policies structured as you have previously advised, what, if any, liability does a library have for minors inadvertently viewing adult pornography?

If the viewing was truly "inadvertent," and any policy violation that allowed it to occur is quickly corrected, nothing further is needed.[14]

And what, if any, modifications to hiring, training, and workplace procedures do you recommend for minor employees?

Speaking as a former "minor employee" of a public library,[15] a good employee orientation, and regular reinforcement, on the fundamentals of library ethics and the policies that protect employees is a very valuable thing. 

This is already something most libraries are doing, but here are some helpful points to reinforce:

  • Prior to hire, a minor employee should review the job description with their supervisor, and have a chance to ask questions;
  • All employees must be trained to respect patron confidentiality and be trained on how to deftly demur requests by third parties for patron information;[16]
  • All employees are entitled to respectful treatment from patrons and co-workers, and should know to whom they can direct questions and concerns about their employee experience;
  • The library has a suite of policies for selecting, challenging, cataloging, and weeding books, and minor employees who might not have direct responsibility under those policies should know they exist, and how to direct questions about them;
  • Minor employees, in particular, should be trained on how to immediately report observed or reported policy violations (including those related to pornography and harassment);
  • Library employees who are not legal adults (18) should feel free to ask questions, should know to whom those questions and concerns can be directed, and should get meaningful and timely answers so they feel respected.

All of this should be reflected in a hire letter or orientation packet, so parents, if they choose to ask their child to view the terms of their work,[17] can do so.

Not too much to remember in your day-to-day life keeping the library up and running, right???

Thank you for an excellent question.

 



[1] And even a bit on the law defining what a "minor" is--a status that can shift based on which law is being applied, where.

[4] Being a businesswoman myself, I found the "business" parts just as compelling as the violent parts, although much of the drama in that part is subtext.

[5] "Blood in the gutter" is a phrase from comics book publishing, meaning the violence happens between panels.

[6] I could also have picked something a bit more salacious to use as an example (something that only barely makes the "literary value...for minors" test) but why waste the opportunity to tout a great book?

[7] NY Penal Law 235.20

[8] NY Penal Law 235

[9] NY Penal Law 235.21

[10] NY Penal 245.11

[11] I know, this is a very far-fetched example.  At least, I hope it is, since it illustrates truly sociopathic behavior.

[12] If a library wants to go even further and have minors only work in the Children's Room, where they will by policy only work with materials cataloged for youth, that could be an extra precaution, although it is not personally one I endorse.  Library work, like legal work, is for people who can approach all of life's variety with maturity and aplomb.

[13] As referenced by the member, past discussion of how policy plays into managing concerns about pornography is here: https://www.wnylrc.org/ask-the-lawyer/raqs/60.

[14] From the legal perspective.  I can't say if counseling, getting ready for picketing, or bracing employees for an angry phone call from parents is in the future. 

[15] New Hartford Town Library, when I was 16 and 17.

[16] I know this isn't quite on point, but the balance between respecting patron confidentiality, and enforcing respect for employees, can be tricky if people don't grasp the fundamentals.  Just because you have to keep mum on what a patron is checking out doesn't mean you keep mum about inappropriate comments!

[17] The topic of a guardian or parent viewing or interceding with the employment relationship of their child is too big for this reply.

[18] Update 11/05/2021: We received a request for clarification about when to use this tactic.  As posted in the clarification here [https://www.wnylrc.org/ask-the-lawyer/raqs/241] I intended this guidance to convey that the information about accession, cataloguing and appeal policies be supplied only after a parent expresses concern.

 

Tags: First Amendment, Management, Policy, Employment, Obscenity

Topic: Trustees and First Amendment - 7/27/2020
Our municipal library recently revised its by-laws, and the revisions were approved by four of our...
Posted: Tuesday, July 28, 2020 Permalink

MEMBER QUESTION

Our municipal library recently revised its by-laws, and the revisions were approved by four of our five elected trustees. The fifth trustee abstained, and a month later sent the other board members an email saying he thought some of the language was in violation of First Amendment rights. He said three lawyers he talked with concurred.

The language in question were sentences that were copied verbatim from United For Libraries of the American Library Association's Code of Ethics. The same language was found in the New York State Library Trustees Manual, published by the New York Board of Regents.

Specifically, this is the language in the revised by-laws the trustee objected to:

"Trustees must distinguish clearly in their actions and statements between their personal philosophies and attitudes of those of the library, acknowledging and supporting the formal position of the Board even if they disagree."

"When any trustee acts in a manner that is not in the best interests of the library or in a cooperative nature of the Board, the Board Chair shall discuss the issue with the trustee in a direct and constructive manner. Specifically, if a trustee is negligent in attending meetings to an extent that affects the operation of the Board, if a trustee is actively working against the interest of the library or Board decisions, if a trustee acts or speaks on behalf of the Board on any matter without prior approval of the Board, or if a trustee or his/her family benefits personally from any library matters, that trustee may be asked to resign from the Board by majority vote of the trustees. The trustee will be asked to resign from the Board by letter from the Board Chair, and the trustee will be asked to send a letter of resignation to the Board Chair."

The trustee stated, "A public library, with publicly elected trustees cannot in any manner restrict the opinions or comments of any board member, whether in executive session or public meeting, nor can they be compelled to support the decisions of the majority. Such action is a direct infringement on the First Amendment to the Constitution."

QUESTION: Do the passages in quotes[1] from United for Libraries of the library's new by-laws infringe on First Amendment rights?



[1] NOTE:  The quoted language in the question does not exactly track the language in the 2018 NY Trustee Handbook, nor the United for Libraries Public Library Trustee Ethics Statement.  This reply addresses the language as quoted in the question and does not address the Handbook nor the United for Libraries Public Library Trustee Ethics Statement.

WNYLRC ATTORNEY'S RESPONSE

OPENING NOTE: Before I answer this question, I must stress: while some of it is identical, the quoted language in the question does not exactly track the language in the “2018 Handbook for Library Trustees in New York State,” nor the “United for Libraries Public Library Trustee Ethics Statement.”  This reply addresses the language as quoted in the question and does not address the precise language of the Handbook or the Ethics Statement.

Here are the words of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

I have been thinking a lot about these words, lately.  Business restrictions, social distancing, mask-wearing, protesting…2020 has evoked them, again and again.[1]

For this question, these strong, simple words are contrasted against the laws, regulations, and documents setting the terms of service of a public library board member. 

Let’s review those terms of service:

  • In the State of New York, public and private libraries are chartered by the NY State Education Department, as authorized by Education Law Section 255.
  • Whatever “type”[2] a Regents-chartered library is, it is always considered an “education corporation,”[3] to be governed, in part, by the Not-for-Profit Corporation Law.[4]
  • Although they are “education corporations,” public libraries bear some hallmarks of government entities: trustees must take oaths of office, most employees are part of the Civil Service, and there are significant, government-aligned requirements for procurement, audit, and accounting.
  • And of course, public libraries are subject to the Freedom of Information Law, the Open Meetings Law, the laws of their host municipalities, and the requirements of their own charters, bylaws, and policies.

This elaborate grid of law, regulation, and governance creates not only a public library--it creates the conditions for service by the public library trustee. 

Overarching all of this is the First Amendment, with its shifting assurances of unfettered freedom of speech and association. These shifting assurances include (but are not limited to): the right to say something (“free speech”), the right to not say something (no “compelled speech”), the freedom to attend meetings and gatherings (“association”), and the right to protest and advocate for your point of view (to “peaceably petition the government for redress of grievances”).

I say “shifting assurances,” because as is widely known, the tests for violations of the First Amendment depend on the context of the speech.[5]  Depending on the government interest to be advanced, or the nature of the speech impacted, the Supreme Court has created various tests to assess the Constitutionality of governmental actions impacting expression.[6]  One of those “contexts” is the voluntary acceptance of public library trustee service, which means agreeing to serve in alignment with certain laws. 

Here are just a few examples of how, even though every person on a public library board has First Amendment rights, speech and association of a trustee may be “limited” by law:

  • Trustees must take an Oath of Office,[7] which is arguably “compelled speech” required by the Education Law and the Public Officers Law;
  • Trustees must agree to follow the library’s “Conflict of Interest” policy, which is arguably “compelled speech” required by both the Not-for-Profit Corporation Law and the mandated Oath of Office;
  • Trustees must meet at least quarterly and if individual members do not attend, they may be removed, which is arguably “compelled association” required by the Education Law;
  • Trustees must not divulge communications designated by statute as confidential (whether or not they were discussed at executive session)[8] which is arguably “restricted speech” but is a condition confirmed in a number of judicial and Education Commissioner decisions;
  • Board members must abide by a library board’s code of ethics or risk being removed for misconduct.

Each of these examples is an instance where library trustees must curb or engage in behavior due to their special status as a public library trustee.  Each is a well-established condition, limiting or prescribing actions and expression, voluntarily undertaken as part of a valuable public service.

So, it is clear that library trustees must accept some conditions impacting their First Amendment rights, as a condition of board service.  But what about the language cited by the member’s question?

Most of the language in the question, as presented, does not lend itself to any concerns about the First Amendment; in fact, most of it does just the opposite.  By requiring a board member who is expressing a personal opinion to clarify that they do not speak for the full board or the institution, the language allows a trustee to express their personal position without jeopardizing their duty as a fiduciary who must act solely in the best interests of the institution.  Further, citing “the best interests of the library” and “the cooperative nature of the Board” emphasizes how a board must collaborate in good faith to achieve board decisions based solely in the trustees’ role as fiduciaries, which is consistent with both the Not-for-Profit Corporation law, and the cases construing duties of boards. 

In short, most of the language allows a trustee to perform their duties while exercising their First Amendment rights.

All that said, I have First Amendment concerns about the following phrases:

“…supporting the formal position of the Board even if they disagree.”

“…if a trustee is actively working against the interest of the library or Board decisions …”

 

What are my concerns with these phrases?

I have concerns because the meaning of these phrases, while evocative of a trustee’s “duty of loyalty”[9] to the library they serve, is ambiguous.   Ambiguity—by which I mean uncertainty about what exactly is being required--does not work well when free speech is implicated; and the uncertainty caused by a term being vague or overbroad creates risk. 

Here is how that risk plays out:

The following are some examples [10] of behavior that could be characterized as a trustee “actively working against the interest of the library or Board decisions…” that would violate the trustee’s duty of loyalty, and thus if punished with removal or censure, would NOT create First Amendment concerns:

  • A trustee knows it is in the best interest of the library to fix the roof in 2020, but publicly advocates waiting until a roofer they personally like (a neighbor or a drinking buddy) is free to perform the work in 2021;
  • A trustee knows that Candidate #1 has the best qualifications for the job, and therefore hiring Candidate #1 is in the best interest of the library, but thinks Candidate #2 will make their friends happier, so publicly endorses and votes for #2;
  • After appropriate due diligence and discussion with legal counsel during executive session, the board votes to buy the lot next door and to roll out news of the decision in a particular way.  A trustee, by virtue of information learned during the process, knows that the decision complies with all applicable laws and regulations, but still organizes a petition asserting the purchase is “illegal.”

Any of these, if proved, could be grounds for removing a trustee for “misconduct” and removal with no First Amendment defense to fight the removal. 

HOWEVER, as I said, the ambiguity of the quoted phrases, and some of their possible implications, concerns me.  To flip my examples around, here are some examples of behavior that could be characterized as a “trustee is actively working against the interest of the library or Board decisions…” that would NOT violate the duty of loyalty, and if punished with removal or censure, COULD create concerns under the First Amendment:

  • A trustee knows it is in the best interest of the library to fix the roof in 2020, but the only roofer to bid on the contract as authorized by the board has an established track record of defective work which is not being considered in the procurement process. In the days before the scheduled vote on the contract, the trustee publicly—and clearly only speaking for themselves—advocates a new procurement process and project timing that will attract roofers with a better record of performance;
  • A trustee sees that the new director, while excellent in many ways, does not have experience organizing a move to a new building, so despite a previous decision by the board to not hire a consultant to assist with the move, re-introduces a resolution to hire a consultant, and publicly (but respectfully) shares their reasons for the procurement;
  • A trustee, by virtue of information learned at executive session, has a genuine concern that a planned land purchase will not comply with all applicable laws and regulations, and reaches out to a private attorney to confidentially share their concerns.  Once those concerns are confirmed, the trustee shares the concerns in another executive session.  The board ignores the concerns, so the trustee—taking care to state that they are speaking personally and not for the board--THEN (without divulging attorney-client privileged information from the sessions) writes to the state Comptroller and the Attorney General for guidance, and writes a letter to the town paper stating simply that they hope to have time to gather further information.

If this seems complicated: it is.[11]  This is why there is a 132-page Handbook for library trustees, why there is currently a state-wide discussion about mandated training for library trustees, and why libraries have lawyers. 

Serving as a public library trustee is truly a role like no other.  To support the people in that role, if I were to word-smith the phrasing I have expressed concerns with, it would read (shown here with tracked changes):

"Trustees must distinguish clearly in their actions and statements between their personal philosophies and attitudes of those of the library, acknowledging and supporting as legitimate the formal actions position of the Board even if they disagree."

"When any trustee acts in a manner that is not in the best interests of the library or is inconsistent with thein a cooperative nature of the Board, the Board Chair shall discuss the issue with the trustee in a direct and constructive manner. Specifically, if a trustee is negligent in attending meetings to an extent that affects the operation of the Board, if a trustee is  engaging in misconduct or neglect of dutyactively working against the interest of the library or Board decisions, if a trustee acts or speaks on behalf of the Board on any matter without prior approval of the Board, or if a trustee or his/her family benefits personally from any library matters, that trustee may be asked to resign from the Board by majority vote of the trustees. The trustee will be asked to resign from the Board by letter from the Board Chair, and the trustee will be asked to send a letter of resignation to the Board Chair."


I suggest adding the words “misconduct” and “neglect of duty” because they come straight from Education Law 226(8), and as such, they are less prone to mis-interpretation.  On the flip side, I suggest removing the phrase, “actively working against,” because that phrase has no basis in law, regulation, or case law;[12] therefore, it risks mis-interpretation.  Since First Amendment decisions often turn on a phrase’s precise meaning (through definition or usage), these are more reliable choices.

To put this plainly: I am concerned that the language, as presented by the member’s question, creates the possibility of a public library chair thinking it is appropriate to tell a public library trustee: “The majority of the board voted to fix the roof this year, it’s a done deal, and now you have to keep quiet about it, or be removed from the board.”  This might not only violate the First Amendment, but could result in a course of action where the trustees are not acting in the best interests of the library.  That is a result to avoid.

At the same time, boards MUST feel empowered to remove members who are disruptive, who refuse to engage in the processes of deliberation and voting, who are disrespectful if they don’t get their own way, who improperly disclose confidential information, who have inappropriate relations with patrons or staff, or who violate board policy...so language emphasizing trustees’ responsibilities should be retained, and should be revisited often. 

Clarity about trustee rights and obligations, board training, and procedures creating a high-functioning board are always in the best interests of a library.

Thank you for a great question.  I hope this answer is helpful. 

CLOSING NOTE: At this closing section of the answer, I would like to re-iterate what was established in the first footnote: Although similar, the quoted language in the question does not exactly track the language in the “2018 Handbook for Library Trustees in New York State” nor the “United for Libraries Public Library Trustee Ethics Statement”.  This reply addresses the language as quoted in the question and does not address the precise language in the Handbook nor the Ethics Statement.



[1] And the year is only half over.

[2] Indian, free association, special district, school district, municipal.

[3] This governance is established through a daisy chain of Education Law sections: 255, 260, 226, and 216-a.

[4] The Education Law carves out several areas where the NFP law does not apply, including provisions related to trustee removal.

[7] By taking the Oath, a public library trustee has made the sworn commitment to “support the constitution of the United States, and the constitution of the State of New York, and … faithfully discharge the duties of the office of” serving on the board. 

[8] This is a tricky one.  A good “Committee on Open Government” opinion discussing the nuances of this can be found at https://docs.dos.ny.gov/coog/otext/o4258.htm.  Another illustration of the shifting conditions of board service is the discussion in a 2017 NY Commissioner of Education’s decision to not overturn the removal of a school board member who admittedly shared confidential information from an executive session, found here: http://www.counsel.nysed.gov/Decisions/volume57/d17147.

[9] It is worth noting that the phrase “duty of loyalty” does not appear in the Not-for-Profit Corporation Law, but is a creature of case law.

[10] All of these examples were picked to not otherwise be covered by required policies such as Sexual Harassment, Conflict of Interest, Whistleblower, confidentiality of topics duly discussed during Executive Session.

[11] These distinctions may be counter-intuitive to some people used to the operations of not-for-profit boards, which come with a high expectation of service with confidentiality.  A key distinction between library board work and the work of other entities governed by the Not-for-Profit corporation law is that library board work, by law, takes place before the scrutiny of the public.  So, while the “duty of loyalty” held by a typical not-for-profit board member would include not divulging board discussions and board votes, for chartered libraries, this activity takes place with an expectation of disclosure.

[12] To make this assertion, I checked for the phrase “actively working against” in all laws and regulations of New York, and the decisions of the NYS Commissioner of education.  The phrase has no application in any of those contexts, and appears in only six judicial decisions in New York (state and federal), none of which deal with libraries or not-for-profit board service.

Tags: Public Libraries, Board of Trustees, COVID-19, Education Law Section 225, First Amendment, Public Officers Law

Topic: Video and photography of students in an academic library - 2/13/2020
[I work at the library of a public university.] Every year we have requests from students in Media...
Posted: Thursday, February 13, 2020 Permalink

MEMBER QUESTION

[I work at the library of a public university.] Every year we have requests from students in Media Arts program to videotape in the library. They ask me to grant permission. I do not feel comfortable granting permission for others to be filmed.

Do students in the library have a right of privacy that would prohibit filming them as they go about their normal business in the library?

We would like to have a written policy.

The images would not be used for commercial purposes, just as an academic assignment.

 

WNYLRC ATTORNEY'S RESPONSE

When this question landed on my desk, I had recently watched a viral video[1] on YouTube about how some people have no "inner monologue".

The video explained, in plain and accessible terms, that there are people who, rather than internally narrate their world, don't have constant chatter in their heads.  They don't have an "inner voice."  Rather, their brains "map" their reactions to the world, and those reactions are only put into words through vocalization.

The reason the video went viral is because for those of us with a strong inner monologue, the idea of living without one was mind-blowing.

My brain was still wrestling with this concept ("You mean there is no narrator in your head?  None??"), when I read the member's question.

And when the question hit my brain, just like that, I got it.

When I read this question, I didn't hear the words, but I saw the answer.  I couldn't articulate it, but it was there: a Venn Diagram of overlapping legal concerns,[2] "mapped out" in my head, just like the video described: CPLR 4509; FERPA; NYS Image Rights Law.

Only after I had mapped out that diagram in my head could I unpack the details and start to compose.

So, before we delve into the question, I want to thank the member for inspiring a bit of neuro-diverse-empathy in yours truly.  Our brains are endless mysteries; it's good to occasionally see ourselves differently.

And with that, here is my "(Academic) Library Right to Privacy Venn Diagram," unpacked and articulated, and, per the member's request, set out in a "Policy" format, ready to customize for your academic library.

(NOTE: Why are there TWO policy templates?  Because people may have a context-specific first amendment right to film in a public library or the library at a state university, while at a private academic library, only the rules of the institution will apply):

[PRIVATE COLLEGE/UNIVERSITY NAME] Policy on Academic Library Privacy

 

Related Policies:

 

[FERPA Compliance Policy,

Student Code of Conduct,

Employee Handbook,

Patron Code of Conduct,

Campus Guest Policy,

Institutions' Data Security Policy]

 

Version: DRAFT FOR CUSTOMIZATION

Passed on:  DATE

Positions responsible for compliance

FOR USE IN PRIVATE COLLGES AND UNIVERSITIES

POLICY

The state of New York provides that library records containing personally identifying details regarding the users of college and university libraries ("Patron Records") shall be confidential, except to the extent necessary for the proper operation of the library.

To safeguard this right, the [NAME] library will observe the below protocols.

No Patron Records, including but not limited to circulation records, computer searches, information requests, inter-library loan requests, or duplication requests, shall be disclosed, unless 1) upon request or consent of the user; or 2) pursuant to subpoena, court order, or where otherwise required by statute.

The use of security footage showing access to library resources (computers, collection materials, duplation technology) is considered to be a Patron Record.  NOTE: As authorized by law, the Library may release such records incident to promoting proper operation of the library.

No recording of library users by any third parties is authorized on the premises without the filmed individual's express consent.  This includes recording for academic, professional, or social purposes.

To the extent Patron Records overlap with FERPA-defined education records, the Library shall interpret the law to provide maximum assurance of the privacy of the library user, while also reserving the right to promote the proper operation of the library.

 

 

[PUBLIC COLLEGE/UNIVERSITY NAME] Policy on Library Privacy

 

Related policies:

[FERPA Compliance Policy

Student Code of Conduct

Employee Handbook

Patron Code of Conduct

Campus Guest Policy

Institutions' Data Security Policy]

Version: DRAFT FOR CUSTOMIZATION

Passed on:  DATE

Positions responsible for compliance

 

FOR USE IN PUBLIC COLLEGE AND UNIVERSITIES

POLICY

The state of New York provides that library records containing personally identifying details regarding the users of public college and university libraries ("Patron Records") shall be confidential, except to the extent necessary for the proper operation of the library.

In New York, libraries at state, county and municipal institutions may have specific status under the Open Meetings Law and various civil rights laws, but such status does not eliminate their obligations under CPLR 4509, nor limit patrons rights to access services without fear of that record being accessed by another.

To safeguard this right, the [NAME] library will observe the below protocols.

No Patron Records, including but not limited to circulation records, computer searches, information requests, inter-library loan requests, or duplication requests, shall be disclosed, unless 1) upon request or consent of the user; or 2) pursuant to subpoena, court order, or where otherwise required by statute.

The use of security footage showing access to library resources (computers, collection materials, duplation technology) is considered to be a Patron Record.  NOTE: As authorized by law, the Library may release such records incident to promoting proper operation of the library.

Individuals or representatives from the media who wish to make recordings in the unrestricted areas of the library must adhere to the following rules:

  • To record students or patrons generating Patron Records (conducting internet searches, retrieving materials, using materials, checking out books, requesting information at the Reference Desk, etc.), the patron's permission must be obtained in advance; for minors, the written permission of their guardians or parents must be obtained;
  • Recording of the Circulation Desk(s) or Reference Desk(s) is forbidden if the area is staffed and serving patrons;
  • Recording and/or requesting permission from patrons and students must not disrupt normal operations of the library.

To avoid inadvertent violation of these rules, individuals or representatives from the media who wish to make recordings in the library may, but are not required, to discuss their projects with the Director; however, neither the Director nor staff can give permission to waive this policy or give permission to record patrons or students.

Conduct that would be barred by any other policy is not legitimized by the presence of a recording or transmitting device; this includes harassing patrons or staff, or any behavior that violates the rules of the institution.

To the extent Patron Records overlap with FERPA-defined education records, the Library shall interpret the law to provide maximum assurance of the privacy of the library user, while also reserving the right to promote the proper operation of the library.

 

Now, before I go, just a few words on working with these policy templates.

First and foremost, while templates can be a great starting place (and these are designed to inspire generative conversation), they should NEVER be adopted without a thorough analysis and scrubbing by your institution.

For instance, a public or private academic institution could already have a campus-wide policy on filming people.  Or, on the flip side, the institution could have a strong Media Communications or Film department that relies on being able to send students out onto the campus for filming; a policy like this, with no warning, could cause an unnecessary confrontation.[3]  Policies within smaller units at a big institution can cause inconsistency and friction that can be hard to anticipate, unless you bring in some colleagues to pass the policy with.

So before passing a policy based on a template I've provided, here is who I suggest should be on an academic institution's "Library Privacy Policy Collaboration Team," and why:

The Director of the Library (I trust the reason why is obvious), and at least one staff member (the staffer will provide an in-the-trenches perspective; plus, collaborating on that policy is great training for following that policy).

The Director of Campus Safety/Security/Police.  Why?  Because 1) they might have to help enforce the policy; and 2) it is important that they understand the privacy obligations of the library.  Further, at a public institution, they will likely be a ringer who understands the nuances of "quasi-public" space (for first amendment concerns[4]).

The Dean of Students: Why?  Because 1) they might have to help enforce the policy; and 2) it is important that they understand the privacy obligations of the library are for the benefit of the students.

The Director of IT: Why?  Because 1) it is important that they understand the privacy obligations of the library; and 2) they must ensure those obligations are supported by the institution's current and future information technology.

A student government rep: Why?  Because 1) it is important that students have a voice in policies that are meant for their benefit; and 2) students can help articulate the reasons and importance of policies in ways their peers can relate to.  Bonus reason: participating will look good on their apps for grad school!

The institution's lawyer and/or compliance director: Why? Basically, you want the person who keeps an eye on all the rules at your institution, to make sure they are harmonized and are consistent with each other.  Institutional policymaking cannot be done in isolation.

Optional, but a gold-star member: your institution's Family Rights Education Act (FERPA) compliance officer (for a discussion on how FERPA and library privacy obligations interact, see https://www.wnylrc.org/ask-the-lawyer/raqs/67.).

And, in the case of this member's question: the Chair of the Media Arts Department: because as you meet, you can explore setting up ways for the film students to get the permission and image releases they need, in a way that supports their projects but respects the rights of others…skills they will need in "real life."

Okay, I can hear some of you (in my inner monologue!) saying: that's a huge meeting!  Do I really need to convene all those people?

Based on my experience as an in-house counsel at a University (ten years or so), my answer is: YES.

Why?  Because you don't want your first discussion about privacy with Campus Safety to take place when they ask you for the internet search records of a student who was reportedly making a weapon in his dorm room.  You don't want your first discussion about privacy with the Dean of Students to occur when they demand to know if a student was in the library at the time they are accused of driving drunk across campus.  You don't want your first discussion about privacy with a student rep to be when a "first amendment auditor"[5] shows up at your public university campus.  And you don't want to jeopardize your relationship with the IT Director by finding out she set up security cameras you don't know about.

And most critically: Privacy, security and safety on any college/university campus are a collaborative effort, and your library deserves special consideration within that effort.  Why?

No other space on campus has your precise mission and obligations.[6]  A team that knows and supports that mission, and those obligations, can be a great asset.

This is true whether your library's commitment to access and privacy is fully articulated by the team members' constant inner monologues, or is simply hard-wired into the "maps" in their heads.[7]

By jointly working on a policy, and paying attention to the details, either is possible.

Thanks for a great question, and best wishes for developing a strong, coordinated, customized policy!

 



[1] You can enter the rabbit hole here: https://youtu.be/u69YSh-cFXY I hope it's still there!

[2] NY CPLR 4509, FERPA, Civil Rights Law §50, the first amendment, 20 U.S.C. 1011(a), and a bunch of laws on trespass, Public Officers Law, etc.

[3] I'm a lawyer, so I am very happy about the concept of "necessary confrontation," but I like to save people time and stress whenever possible.

[4] This is not the place to dissect the first amendment's impact on public college/university libraries (see next footnote), but for the record, the "Higher Education Opportunity Act" emphasizes that ALL higher education institutions should be a place for "the free and open exchange of ideas."

[6] That said, an on-campus Health Services facility, Campus Counseling, Records, or other place with confidentiality obligations will have similar needs that might be instructive.

[7] I would like to apologize for any painful pseudo-science in this "Ask the Lawyer."  Stupid viral videos.

Tags: Policy, Privacy, Academic Libraries, First Amendment, Image Rights

Topic: Patron Barefoot Rights vs. Liability - 10/4/2019
We have a patron who insists that it is their right to go barefoot into any public area....
Posted: Monday, October 7, 2019 Permalink

MEMBER QUESTION

We have a patron who insists that it is their right to go barefoot into any public area. Okay, but, being a public (Association) library, aren't we still liable even if that person injures themselves on the property even if they 'say' they wouldn't sue us? Is there a law that defends their position and if so, how do we defend ourselves from litigation? Should we have them sign a waiver? Any help is greatly appreciated!

WNYLRC ATTORNEY'S RESPONSE

To answer this question, I had to switch things up, and pretend that one day, there I am, sitting in my office,[1] when a barefoot person walks up to my door and asks “I want enjoy my library privileges while barefoot, and they won’t let me.  Can they do that, or can you help me sue?[2]

If someone actually paid me for a consultation related to this conundrum,[3] here would be my diagnostic process.  For the sake of argument, let’s say that for every question I pose, the answer is, “No.”

  • Do you have a disability that requires you to be barefoot?
  • Do you hold a sincerely held religious belief that requires you to be barefoot?
  • Does this rule disproportionately impact you as a member of a protected class?
  • Are you subject to some type of judicial order that requires you to be barefoot?[4]
  • Have you observed that other patrons at the library are barefoot, while a rule against going barefoot is being selectively applied to you?

Once I got through establishing that the answer to each question was “no,” I would then likely say: “Well, I am sorry, but whether it’s public or private property, if shoes are required by the library, I see no basis for a claim.”

Of course, the law is always evolving, but right now, simply being “a person who wants to go barefoot,” is NOT a protected category in New York State.  So, whether it’s my house, McDonald’s, or the local (school, association, or public) library, the old rule “no shirt, no shoes, no service,” can still apply.

This right to impose reasonable and uniformly applied conditions for entry—like shoes, shirts, and leaving beverages at the door—is rooted in the concept of real property (ownership of land).  A person or organization that owns land can impose (with varying degrees) restrictions on how others may access it.  And unless connected to an established[5] or fundamental right—like freedom of religion—those restrictions cannot be challenged via lawsuit (although for a library governed by a board, it can be challenged and changed as a matter of policy). 

The concept of requiring certain attire in relation to property is common in New York’s laws, regulations, and case law.  Country clubs may require a formal style of clothing, while barring cleats and spikes indoors.  Children’s camps may require kids to wear shoes (with backs!).  Since this answer gave me an excuse to do the research, I even learned there is a state-imposed dress code for recently legalized MMA (Mixed Martial Arts): man must be shirtless, while women must wear tops (I can’t imagine this gender-based rule will go unchallenged for very long).[6]

Why all this commentary about the law and clothing? I’ll make it clear.  Libraries—whether they are public or private—have the right to require visitors to wear shoes, to wear clothing that covers certain portions of the body, and to check their beverages at the door. This goes hand-in-hand with the right to require that people not play loud music, not be disruptive, and not import disturbing body odor beyond a certain personal zone.[7]

It is important, however, to have a clear and uniformly enforced policy for imposing these reasonable conditions.  The minute a small child is allowed to go barefoot in the library (bad idea!), an adult can try to claim that right, too.  And extreme care should be taken to not adopt policies that can impact protected classes of people (barring head coverings, for instance), unless a lawyer has been consulted in the drafting of the policy, and staff are well-trained on the nuances of enforcement.

So, to bring it back to the member’s question: there is no need for a liability waiver, if your library simply wants to insist that people wear shoes.  On the flip(-flop) side, if a library wants to explore a “barefoot-positive” policy, more than a waiver would be needed to address the risks: a board would have to explore all the risks caused to those not wearing shoes in a place with heavy books, carts, lots of foot traffic, and many tables and chairs.  That risk assessment would consider not only the likelihood of injury, but workplace safety rules, insurance carrier requirements, and the interaction of such a policy with other institution-specific practices (particularly, how often they clean the floor).

Again, this all comes down to the requirements and needs of a particular library, on a particular piece of property, governed by a particular set of rules.  I want to stress: such factors are variable.  The “National Yoga Library,”[8] or a library based around a culture where shoes are left at the door, would have a different perspective on this issue, perhaps insisting on a no-shoe policy (there are some places where it’s shoes that are considered dangerous and unsanitary, which makes sense, when you think what they walk through).  But for most libraries in New York, where for six months of the year our floors are coated in slush and salt, and furniture design presents many a hazard for unshod feet, “shoes, please” is likely the policy of choice.  And it’s okay to insist on it.

Thanks for a great question!



[1] We have a storefront office on a busy city street, so this is actually a possibility.  There’s never a dull moment on the West Side of Buffalo.

[2] NOTE:  Before I let this person into my law firm, I would insist they put on some shoes, or I’d meet them outside.  This is because, while I may have liberal ideas about intellectual property and how to run a business, I am a fuddy-duddy about certain conventions (like civility, yielding to pedestrians, and covered feet).  Someone once called me an “innovative curmudgeon;” I took that as high praise.

[3] NOTE: I would likely not take this consultation.  I work with so many libraries, it would probably be a conflict of interest.

[4] I can’t fathom what type of restraining or protective order would require a person to not wear shoes, but in my business, I’ve learned to “never say never.”

[5] If you ever want to kill the mood at a party, ask me about the many laws that govern land use: zoning, permitting, environmental law, historic preservation, urban planning, construction, building code, municipal law, landlord-tenant, real property procedure, restricted giving….  Yep, land use law can destroy a festive mood in ten minutes or less.

[6] 19 NYCRR § 212.5 “Proper attire of contestants”

[7] If this concept sounds foreign to you, and you work in a library, my impression is that you are in a happy minority.

[8] I do a lot of yoga.  No matter what studio I am at, if I forget to leave my shoes at the door, I get a very quick “what you are doing is not cool with the universe” reminder to take them off.  In the yoga studio, bare feet are the rule, which is why most yoga places have a high budget (or offer work-trade) for floor cleaning.

Tags: , ADA, First Amendment, Liability, Management, Policy

Topic: Pornography, Public Computers, & Library Policy - 11/14/2018
Pornography and public computers in libraries have gone hand-in-hand for some time and I'...
Posted: Wednesday, November 14, 2018 Permalink

MEMBER QUESTION

Pornography and public computers in libraries have gone hand-in-hand for some time and I'm doing some research on how library policies should handle addressing this in a realistic and proactive way. The question that I am researching is whether or not it is legal to explicitly list pornography as something that cannot be accessed on library computers. I understand ALA and the Intellectual Freedom Committees stance on this issue as well as the first amendment ramifications and I am certainly not advocating for censorship, however, I've seen several policies that have tried to circumvent the issue by having vague, unhelpful policies and others that have flat out said that it is not allowed. Any clarifying help from a legal standpoint would be appreciated. 

My understanding is that it would not be constitutional to have a policy restricting pornography, however, there could be something in the policy that restricts the displaying of pornography or other offensive content. 

Thank you.

WNYLRC ATTORNEY'S RESPONSE

Because libraries are guardians of the first amendment, and because there is no consistent definition of “pornography,” the answer is: NO. I cannot offer legal guidance that simply bans porn…any more than I could suggest that a public library start charging admission.  Such guidance would cut into the fundamental heart of a library’s mission. 

But there is a way to achieve your underlying objective:  Focus on civil rights.

How does a “focus on civil rights” keep porn off library computers, you ask?

Let’s start with the fundamentals: why would a library would need to consider limiting internet porn in the first place?  The answer is pretty simple.  Aside from the malware—and the abysmal amount of copyright theft perpetrated by many porn sites--[1] no one wants to work or congregate in a place where other people are watching porn.

At best, it’s icky.  At worst, it creates an atmosphere of gender-based discrimination (of any gender…of any sexual orientation…and of those who do not gender-identify, too).  So in New York, where the stakes for a sexual harassment claim have never been higher[2], providing a porn-free environment is an unquestioned goal at most places of employment[3]…including libraries.

And so the true question here is not if a library can outright restrict access to internet pornography, but rather, how can a library make sure it’s not honoring one civil right at the expense of another?   How does a library remain a beacon for the first amendment, but stand as  a bulwark of equal access and fair treatment, too?

This balance can be achieved.  The key, just like in other matters involving fundamental rights, is to have a clear, well-developed policy, applied by trained professionals, well-documented and guiding you every step of the way. 

Every library policy should be customized for its unique environment (and harmonized with other policies), but here is a quick example of the type of document I describe, designed to fit into a library code of conduct, patron access agreement, or other behavior-related policy:

The[INSERT NAME] library absolutely respects users’ rights to reliably and confidentially access content, but also has a duty to ensure that its shared community space is free of behavior that demeans, intimidates, or discriminates against patrons, other visitors, and employees.

Therefore, to ensure compliance with local, state, and federal civil rights laws, anyone using or displaying library resources in a manner that creates an atmosphere that could harass, sexually harass, or discriminate against others may be asked to modify their behavior. 

Examples that may require staff to ask you to modify behavior include, but are not limited to:

  • Prominently displaying content featuring racial, gender-based, or religious invective or insults;
  • Prominently displaying scenes of violence;
  • Prominently displaying sexual content;
  • Printing and/or prominently displaying materials in way that appears to target others.

Any request for modification, action or determination under this policy will place the highest priority on the right of patrons to access content, and will seek ways to address the concern without restricting that access.  Modification could include:

  • Agreeing to move the material on another table at a less trafficked area;
  • Scheduling use of a shared resource to ensure predictability of display;
  • Collaborating on a solution that ensures optimal access to content as well as a safe and respectful environment for all.

In some cases, however, “modification” may simply mean a request to discontinue the behavior.  Examples include but are not limited to: deliberately leaving images of violence in a children’s area; prominently displaying sexually graphic content in full view of other patrons and employees; any activity that uses content to negatively target another person in the library.

Patrons who refuse to modify their behavior or to collaboratively resolve a concern may be found in violation of the library’s Code of Conduct and subject to restriction of privileges, per library policy.

Prominently displaying” means the content is intentionally or incidentally visible to others, risking a hostile atmosphere. 

By focusing not on the restriction of “pornography,” but on the creation of a respectful and welcoming environment for all, a library positions itself to ensure optimal access to content, but to follow state, local, and federal civil rights laws, too.  And since one person’s anatomy textbook is another person’s porn, a policy that allows for proactive solutions, using incremental and creative adjustment, helps balance liberty with a respectful environment.

What part of first amendment jurisprudence allows this? The first amendment does prohibit the government from abridging the freedom of speech.  However, it does not guarantee that all forms of protected speech may be heard on property owned or controlled by the government. Instead, the state (just like an owner of private owner property), has “power to preserve the property under its control for the use to which it is lawfully dedicated.”  Further, as in any case “where the principal function of the property would be disrupted by expressive activity,” courts will not consider the main reading and reference area of a public library to be public forum where expression cannot be regulated.[4]

Here is an example: let’s say I am working on book about inter-generational trauma.  With only the best of intentions (writing a book exploring how the trauma of one generation can impact the next) I claim a table for myself near the reference desk, and start laying out books with pictures from the Jim Crow era.  At the next table over, a young person sees the pictures, and suddenly finds the library is not the warm, happy place it was ten minutes ago.  She gets very emotional, and the reference librarian notices.  Using the policy, the librarian could then say: “I see you are working on an important project.  Since this is a high-traffic area and these are some very stark imagines, can you consider moving to a table where you can access the material, but not risk a negative impact on others?  That would help us serve you while also making sure the reference area is welcoming to all.” 

If I say “yes,” and move, we all move on.  If I say “no,” there may be a need for further discussion, but under the library’s policies, one way or another, an adjustment is made.

How could this work with a patron accessing porn on a public computer?  The librarian states:  “This is a public area[5] that serves many people, and its environment must be respectful of our visitors and employees.  What you are viewing is not consistent with that requirement, so it cannot be displayed is this area.  Please stop now.” 

If I say “yes,” and move, we all move on.  If I say “no,” there isn’t much need for further discussion, since under the library’s policies, one way or another, an adjustment will be made.

This is what is called in first amendment jurisprudence a “time, place, and manner” restriction.  Considering the mission of the library—to serve all—a policy of keeping the common areas free of graphic violence, invective, and sexually explicit content is very reasonable…especially since most parts of a library are not considered a “public forum.”  It is the same restriction that allows librarians to ask people to speak quietly or not play music on their cell phones that others can hear.

I appreciate that this approach does require library staff to make and enforce value judgments about content—and some librarians may feel uneasy about that role.  But the essential function of libraries rests on the ability of librarians to make content-based decisions.  In fact, because they are trained to categorize and assess various types of information, librarians are some of the best-qualified people in the world to take such a burden on. 

The case Sund v. City of Wichita Falls—also called the “Heather Has Two Mommies” case—shows the importance of qualified professionals making content decisions using consistently applied, well-reasoned policy.[6]  In that case, a town board tried to allow patrons to over-ride a head librarian’s decision as to where to shelve a children’s book depicting a positive, happy tale of a girl and her two mothers.  When striking down the law, the judged cited the library’s careful accession policy and the level of training required of the librarian—and then confirmed that she had the final say in shelving decisions. 

Librarians use such content discernment on a routine basis, and today’s civil rights laws demand they apply it to not only collections, but the library’s environment, as well.  A policy that is well-developed, harmonized with other policies, and the subject of routine training and practice for staff can give this responsibility a reliable formula.  Like all critical policies, such a policy should be custom-drafted and carefully considered before being approved by trustees, since if the resulting discernment is ever challenged, the board will need to stand by—or overrule—how it was applied in the field.

Balancing conflicting civil liberties requires careful analysis and diplomacy.  But at the end of the day—I’m just gonna say this—unless they work in a very unique type of place, librarians have the right to expect a workplace largely free from internet porn.[7]  That freedom—and the freedom of patrons to access content without undue restriction—starts with your library’s commitment to civil rights.

Thank you for this important question.



[1] The only reason I know this is because I am a copyright attorney.  No, really.

[2] See the new laws passed in 2018 about increased employer liability for sexual harassment.

[3] Obviously the sound editor at an erotic film production company hopes for a steady stream of work, but that’s the exception, not the rule.

[4] See the case Citizens for Cmty Values, Inc. v. Upper Arlington Public Library Board of Trustees, 2008 U.S. Dist LEXIS 85439 (2008), United States District Court for the Southern District of Ohio.

[5] I have no pre-emptive solution for people who bring their own laptops and are able to reserve a room, unless you have a policy that employees may enter such a room at any time, in which case my same advice applies.

[6] This case is a good read for any librarian seeking a refresher on the important of clear policy and a supportive board of trustees.  It is also very laudatory of the librarian who fought for the right of the library to properly shelve the book.

[7]I am not a judge, so I get to have a definition!  Here is it:  “Anything on the internet depicting a sex act, that comes with at least two pop-up adds.”

Tags: Policy, Sexual Harassment, First Amendment, Templates

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.