The murder of Heather Heyer and the injury of at least 19 others during an event organized by hate groups in Charlottesville, Virginia, has forced many Americans to grapple with rhetoric spewed by hate groups and whether such speech should be protected under the First Amendment. See, e.g., K-Sue Park, The A.C.L.U. Needs to Rethink Free Speech, N.Y. Times (Aug. 17, 2017); Jonathan Hamrick, After Charlottesville, Reconsider the First Amendment, The Emory Wheel (Sept. 6, 2017); Josh Blackman, The First Amendment on the Grounds in Charlottesville, LawFare (Aug. 14, 2017, 2:00 PM). The discussion of where, when, and if hate speech should be protected has risen to the surface within the national community of librarians, and these librians have little more to rely on than the American Library Association’s “Library Bill of Rights.” See, e.g., Meridith Farkas, Whose Rights Matter More?, Info. Wants To Be Free, (Sept. 1, 2017); Lane Wilkinson, The Nazis in your library, Sense and Reference (Sept. 1, 2017). Recently, a group of Illinois librarians—the Infollectuals—gathered to discuss the implications of allowing hate groups to meet at public libraries and brainstorm around maintaining their libraries as hate free spaces. Sveta Stoytcheva, The Infollectuals Discussion Series: Free Speech, Hate Groups, and Libraries, Logan Square Public Library, Infollectuals (Sept. 9, 2017).
Public Libraries – Limited Public Forums
Public librarians must consider the decision to limit access to library spaces and materials in a Constitutional context because they are limited public forums under First Amendment protection. Kreimer v. Bureau of Police of Morristown, 958 F.2d 1242, 1259, 1261-62 (3d Cir. 1992). See also Raizel Leibler, Institutions of Learning or Havens for Illegal Activities: How the Supreme Court Views Libraries, 25 N. Ill. U. L. Rev. 1, 6-7 (2004). As limited public forums, public libraries are governmental spaces within which patrons’ First Amendment rights are protected to the extent that they are consistent with intended purpose of that space. Id. And, the intended purpose for libraries is the exchange of information. Id.
Librarians Fear Legal Penalties
The repression of “Hate Speech” has been historicallly contested in light of the concept that this type of speech is a form of political expression and repression would result in an undesirable—and unconstitutional—“chilling” of political speech. See Julian Baumrin, Internet Hate Speech & The First Amendment Revisited, 37 Rutgers Computer & Tech. L.J. 223, 244-50 (2006-7). On the other hand, Julian Baumrins states that “[a]llowing racist comments to go unabashed, and to occupy an equal footing with political discourse, can eventually indoctrinate people to accept their message, for hate is oftentimes gradually developed through propaganda.” Id. at 243.
When hate groups gather at libraries, they create a hostile environment for anyone targeted by that hate and anyone seeking to foster an inclusive space. See Meridith Farkas, Whose Rights Matter More?, Info. Wants To Be Free, (Sept. 1, 2017). For many public librarians, First Amendment arguments in support of hate groups have cultivated fears of legal consequences in response to librarian efforts to create hate free spaces. This fear is so pervasive the discussion was chilled when an Infollectuals audience member, representing the American Library Association (ALA), stated that she had information about First Amendment lawsuits that have been brought against libraries. See Sveta Stoytcheva, The Infollectuals Discussion Series: Free Speech, Hate Groups, and Libraries, Logan Square Public Library, Infollectuals (Sept. 9, 2017).This comment about the existence of First Amendment lawsuits stoked discomfort and fear. The same audience member moments later admitted that all of the First Amendment suits she was aware of had been defeated. Id. Unfortunately, tempo of the conversation never completely recoverd and audience comments soliciting suggestions around potential steps for creating hate free public libraries were effectively squashed by the suggestion that litigation was not only a possibility, but an immediate (albeit benign) threat.
Limits to Protections of Constitutional Rights
The 14th Amendment of the United States Constitution guarantees all people equal protections under the laws, protecting them from infringement of their constitutionally protected rights from States’ action. Public libraries are legally provided for by the Institute of Museum and Library Services. 2 U.S.C. § 9102 (2012). The management and funding of local public libraries are at the discretion of states which may establish and regulate them by statutes. Most public libraries are state run institutions, and therefore could be found in violation of the First Amendment in the case that a public library limited use of the premises for patrons’ exercise of their rights.
However, many public institutions, like prisons for example, infringe upon individuals’ constitutional rights without sanction. See generally Bell v. Wolfish, 441 U.S. 520 (1979); Sandin v. Conner, 515 U.S. 472, 485 (1995). But, in order to avoid sanction, institutional practices must be shown to pass muster at various levels of scrutiny depending on the right and the forum within which the right is being restricted. Kreimer v. Bureau of Police of Morristown, 958 F.2d 1242, 1259, 1261-62 (3d. Cir. 1992). See also Institutions of Learning or Havens for Illegal Activities: How the Supreme Court Views Libraries, 25 N. Ill. U. L. Rev. 1, 6-7 (2004). The level of scrutiny courts have applied to First Amendment restrictions vary based on the element of First Amendment speech being restricted. Sund v. City of Wichita Falls, 121 F. Supp. 2d 530 (N.D. Tex. 2000).
Should a library take action to restrict access to information based on the content or viewpoint presented in that material those actions may be challenged and face strict scrutiny, which means the library would have to show its action was “necessary to achieve a compelling state interest.” Id. at 551. Activities not related to materials, like the use of meeting rooms—rather than decisions about the library collection or rental policies—may be subject to intermediate scrutiny which allows libraries to limit access in a way that is “narrowly tailored to serve a significant government interest.“ Raizel Leibler, Institutions of Learning or Havens for Illegal Activities: How the Supreme Court Views Libraries, 25 N. Ill. U. L. Rev. 1, 6 (2004). To the author’s knowledge, there is no Supreme Court precedent that addresses the issue of content based limitations on the use of public library meeting rooms. Based on the August Infollectuals discussion, it is clear that many librarians are cautious about setting content based limitations on use of these spaces. Meanwhile, just last September, an Illinois library was forced to cancel an event that fosters an inclusive environment for immigrants after a receiving threatening phone calls. Karen Ann Cullotta, Immigration Rights Program Canceled After Arlington Heights Library Officials Receive Threats, Chi. Trib. (Sept. 29, 2017, 6:00 AM).
Into a Hate-Free Future
The Infollectuals, and librarians who are interested in making strides to reject white supremacy, may be vindicated by statements made by the High Commissioner for Human Rights: “Free speech is an invaluable and essential right, under both international standards and US law, and it should not be weaponized by calls for violence and hatred.” United Nations High Commissioner for Human Rights, Darker and more dangerous: High Commissioner updates the Human Rights Council on human rights issues in 40 countries, (Sept. 11, 2017). In addition, Infollectuals may also find support in the unanomously passed a joint resolution, which describes the murder of Heather Heyer as an act of “domestic terrorism.” These statements may help public institutions feel empowered to take tangible steps to center the needs, and access, of members of those groups targeted by white nationalists, white supremacists, and the hate groups that represent them. Joint Resolution Pub. L. No. 115-58 (2017).
There is a wide field for legal and procedural experimentation due to the lack of jurisprudence specifically related to limitations on the use of public library meeting rooms. Theoretically libraries would be able to utilize the narrow designation to exclude non-related activities without specifically establishing hate free spaces. But, should a library choose to specifically insist on maintaining a hate free space, and actively exclude hate groups from using their meeting rooms, the U.N. High Commissioner’s statement and President’s commitments in 115 P.L. 58 may have sufficiently established a compelling government interest or at least a significant government interest on which libraries may be able to meet constitutional standards for limiting speech. Kreimer v. Bureau of Police of Morristown, 958 F.2d 1242, 1259, 1261-62 (3d. Cir. 1992). If suits brought against public libraries by white supremacists, white nationalists, and neo-Nazis were defeated before U.N. and U.S. rejections of hate, there should be no fear of legal action after them.