At an early Saturday session at the American Library Association (ALA) 2020 Midwinter meeting, ALA’s Office for Intellectual Freedom (OIF) weighed in on several areas where libraries and their leaders and staff may have questions regarding their rights, offering resources for both public and academic libraries. “Intellectual Freedom and the Law: Social Media, First Amendment Audits, and the Library as a Public Forum” brought together ALA OIF director Deborah Caldwell-Stone and Freedom to Read Foundation general counsel Theresa Chmara to examine legal issues around free speech that extend beyond OIF’s 2019 Midwinter look at meeting room policy.

The first question raised was whether a library can remove comments or block users from Facebook, Twitter, Instagram, or other social media accounts for abusive or offensive comments. Chmara noted that there are three separate threads to the question: Must public libraries allow comments on their social media pages? Can public libraries remove comments that some might find offensive, or ban a user from their page? And if a public library uses Facebook or another private platform, do the community standards of the private platform take legal precedence over library policy?

There are three kinds of forum, said Chmara. A traditional public forum, such as a city sidewalk or park, has few restrictions that can be placed beyond those designed to provide basic safety or noise levels. A nonpublic forum is not designated as open to public expression, and may have certain types of speech legally restricted. But a designated, public forum—such as a library—is created for a specific purpose, and needs rules and policies tailored to its use. And while a library is not required to open comments on its site or social media page, as soon as it does it must base any restrictions on the platform’s policy.

Certain types of posts are not protected by the First Amendment, including copyright violations, obscenity, child pornography, or physical threats. Beyond that, it is up to a library to establish a posted comment policy, similar to the way it would draw up rules for meeting rooms.

Citing several related court cases, Chmara explained that posts cannot be restricted based on religious or critical content, or objectionable language, for example, but that a library has the right to establish rules about content that address issues of safety, use of library resources, or other reasonable concerns, such as illegal activity. Library leadership should also think ahead about how those policies will be enforced.

When in doubt, said Chmara, the best response is to allow more speech rather than less; if you’re removing a post based on viewpoint, or because someone might be offended by it, remember that offensive and disparaging speech is still protected by the First Amendment. You can include in the library’s posting policy the request that people be courteous, civil, and respectful—but be advised that there is a difference between hate speech and hate crimes, and you can be put at risk of litigation if you remove comments. Chmara and Caldwell-Stone pointed listeners to ALA’s Social Media Guidelines for Public and Academic Libraries and, to help guide policy development, Guidelines for the Development of Policies and Procedures Regarding User Behavior and Library Usage.

FIRST AMENDMENT "AUDITS"

The next questions Chmara considered were: Can a person enter a public library and videotape patrons? Can public libraries limit access to videotaping? Can public libraries prohibit video recording in their buildings? Libraries are beginning to be targeted by First Amendment “Audits”—groups claiming the right to monitor First Amendment violations by filming in any space accessible to the public, arguing that it’s their right as taxpayers and citizen journalists.

According to Caldwell-Stone, “their goal is to create videos of their encounters with police, security officers, and public officials that document a claimed violation of the camera person’s First Amendment rights. The video is then posted to YouTube or other social media, and used as evidence for a legal claim against the targeted agency or its officers and officials.”

Particularly when it comes to protecting patrons and staff, said Chmara, “I’m a big proponent of having policy and not just waiting for something to happen.” Crafting policy for a library is a balancing act, she noted, providing as much access and ability to exercise First Amendment rights as possible, and at the same time balancing that with privacy concerns, safety, and the least possible disruption to patrons. Remember also, she noted, that because the library is a designated public forum for access to information, courts will uphold rules that address that—as well as how the filming is conducted, where it takes place, and how it interacts with other activities taking place in the library.

While there are some existing policy guidelines to reference for social media, Chmara added, it is difficult to offer boilerplate policy on videotaping, as it is an issue that is still evolving in the courts. She offered some considerations to consider while crafting policy: Will filming create a threat to a patron’s right to privacy and potentially chill speech? Will it cause a disruption for employees? Will filming compromise the safety of patrons or staff? Can a policy be crafted that would allow filming of the building without filming individuals? Have there been any prior incidents with filming?

Chmara also advised that libraries should make sure to work with legal counsel while creating policies, as well as researching state and local laws. ALA has a number of policy resources, including the Library Bill of Rights, ALA’s Code of Ethics, and a Q&A page on Privacy and Confidentiality. The Digital Media Law Project has useful information about recording public officials, police officers, and public hearings.

Look at your own library’s mission statement and where it can be tied to policy if challenged, she advised, and include documentation of any previous incidents that may inform library policy. Include an appeal process; make sure all language is reasonable and objective. Once it has been finalized, send the notice of any new or changes to existing policy to all library stakeholders. Provide staff training—you want staff members to know how they should handle any confrontation—and make sure all enforcement of policy is consistent across the library.

Above all, said Chmara, make sure policy addresses the needs of your individual library or system. “I wish I could say ‘Here’s your model policy’ and the court would accept it, but I can’t do that,” she said. “The best I can do is say, ‘Look and see what’s happening in your library’—and look and see what’s happening in other libraries.”

Anyone with questions is welcome to contact OIF at oif@ala.org.