Gay Guardian Newspaper v. Ohoopee Regional Library

• Decision Date: 19 November 2002
• Docket Number: No. 6:02cv00104.,6:02cv00104.
• Parties: The GAY GUARDIAN NEWSPAPER, and Ronald Marcus, as Editor and Chief of the Gay Guardian, Plaintiffs, v. OHOOPEE REGIONAL LIBRARY SYSTEM, et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

235 F.Supp.2d 1362

The GAY GUARDIAN NEWSPAPER, and Ronald Marcus, as Editor and Chief of the Gay Guardian, Plaintiffs, v. OHOOPEE REGIONAL LIBRARY SYSTEM, et al., Defendants.

No. 6:02cv00104.

United States District Court, S.D. Georgia, Statesboro Division.

November 19, 2002.

Gerald Weber, Elizabeth Lynn Littrell, American Civil Liberties Union of Georgia Foundation, Atlanta, GA, Elizabeth J. Norman, Pembroke, GA, for The Gay Guardian Newspaper, Ronald Marcus.

Catherine Harris Helms, Helms & Helms, PC, Homerville, GA, for Ohoopee Regional Board of Library Trustees.

Walter W. Ballew, III, Barrow & Ballew, PC, Savannah, GA, William T. Mitchell, Cruser & Mitchell, LLP, Norcross, GA, for Gail Edenfield.

J. Franklin Edenfield, Spivey, Carlton & Edenfield, Swainsboro, GA, for Dusty Gres.

ORDER

EDENFIELD, District Judge.

I. INTRODUCTION

In this case a publisher seeks 42 U.S.C. §§ 1983/1985-based damages and injunctive relief against a library alleged to have violated his First Amendment rights by removing his publication from its "free-literature" lobby table. Doc. ## 1, 3. The library and individual defendants deny liability and insist that plaintiff Ronald Marcus¹ is not entitled to injunctive relief. Doc. ## 18-20.

II. BACKGROUND

None of the material facts are in dispute.² The Ohoopee Regional Library System³ (the Library), permitted The Gay Guardian (a homosexual-rights advocating publication) to be distributed with other free publications on a front lobby table in its Vidalia-Toombs County, Georgia library. Doc. # 1 ¶ 20; # 20 at 1. After it received oral objections⁴ to The Gay Guardian in its lobby, doc. # 20 exh, 1 ¶¶ 14-15, the Library restricted the table to government and library-generated materials. Doc. # 1 ¶¶ 21-23; # 20 at 1-2 & exh.1 sub-exh. G; # 20 exh. 1 ¶ 17, exh. 2 ¶ 6.

The Library says it changed its policy "so that no [non-governmental] group, organization, or individual would be singled out or treated differently." Doc. # 20 exh. 2 ¶ 7. Marcus insists that the Library is unconstitutionally censoring The Gay Guardian even at the expense of squelching other, non-gay speakers. Doc. # 4 at 11-13. The Library concedes that it now carries no paper copies of The Gay Guardian but points out that it will assist patrons in finding it "online." Doc. # 1 ¶ 28; # 20 at 7 & exh. 1 ¶ 29.

This case therefore presents four issues: (1) whether librarians, in deciding on what a public (hence, government-run) library acquires/accepts and how it presents it, can exercise their own tastes and preferences, if not also take those of the local community into account, see doc. # 20 exh. 1 ¶ 19; id. sub-exh. A (the Library's 1/30/02 "Materials Selection Policy") id. ¶ IV ("Criteria for [library materials] Selection .... The needs and expressed requests of the community are analyzed as an aid to appropriate selection");

(2) whether librarians, after accepting books, publications, etc. (hereafter, "content") for their library's collection, may constitutionally reject or access-restrict same afterwards;⁵

(3) whether those who contribute content to a library's front lobby display table may enjoin the library's subsequent removal (outright or via transfer to a less-visible location) of it; and (4) whether librarians can engage in a content-neutral forum closing (i.e., remove all content from a disputed area of a library) solely to avoid disruption and litigation over issues (1)-(3), even assuming that viewpoint-discriminating censorship drives part or all of that decision.

Though the Court will touch on issues (1)-(3), it is only necessary to reach issue (4).

III. ANALYSIS

A. First Amendment — The Big Picture

"The First Amendment provides that `Congress shall make no law ... abridging the freedom of speech....' U.S. Const. amend. I. This prohibition on laws abridging the freedom of speech has been incorporated into the Fourteenth Amendment so that it also applies to state governments." Weaver v. Bonner, 309 F.3d 1312, 1318(11th Cir.2002). The freedom is not absolute; some regulation (one cannot falsely shout "fire!" in a crowded theater, nor incite riots) has always been accepted.

"When an individual speaks, the government's ability to regulate that speech depends in some situations on the designation of the forum in which the individual chooses to speak." Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1009 (9th Cir.2000), cert. denied, 532 U.S. 994, 121 S.Ct. 1653, 149 L.Ed.2d 636 (2001).

When government regulation goes too far, the aggrieved speaker may ask a court to enjoin the regulator. See, e.g., Prince v. Jacoby, 303 F.3d 1074, 1090, 1094 (9th Cir.2002) (High school's restrictions on religious student group in denying equal access to student/staff time, school supplies, audio/visual equipment and school vehicles to convey group's messages, while providing such access to other student groups, lacked compelling government interest, and thus would violate group's free speech rights under First Amendment; school chose to create limited public forum in which student groups were free to utilize school amenities, and school's restrictions on equal access to its facilities were based purely on group's religious viewpoint). Marcus seeks that here.

To be entitled to a preliminary injunction ... plaintiffs must demonstrate that (1) they have a substantial likelihood of success on the merits, (2) they will suffer irreparable injury unless the injunction issues, (3) the threatened injury to them outweighs the damage that the injunction would have on the opposing parties, and (4) if issued, the injunction would not disserve the public interest.

This That and the Other Gift & Tobacco, Inc. v. Cobb County, 285 F.3d 1319, 1321-22 (11th Cir.2002); accord Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1246-47 (11th Cir.2002).

B. The Parties' Arguments

Marcus argues that the Library closed its "free-lit" lobby table forum in order to unconstitutionally censor unwanted (The Gay Guardian) speech. Doc. # 4 at 12-13. This, he concludes, violates his First Amendment and other constitutional rights, thus entitling him to preliminary injunctive relief reversing the forum-closure. Id.

The Library maintains that the government has the inherent right to control its property, and that includes the right to close any forum it creates. Doc. # 20 at 10. So whatever its reason here (it has conceded that it acted as it did after some members of the local community objected to placement of The Gay Guardian in its lobby), its actions violate no constitutional rights. Id.

C. "The Desert"

The matter may be best considered by envisioning a tent in an intellectual desert. Various camels nose under it, but when an unwanted camel enters, some object. Told he can't exclude any camel, the tent operator simply folds the tent, thus barring all. When the unwanted camel complains, the operator replies that all are being treated equally, and besides, there are plenty of other tents in the desert.

For The Gay Guardian there are plenty of other tents, including the largest: The Internet.⁶ No one can effectively control, much less close it. Yet within seconds personal computer users can find plenty of what long has been legally forbidden, even in many "free-speech" societies: porn with a core so hard that Congress has at least tried to keep under-aged library patrons from accessing it. See J. Krause, Can Anyone Stop Internet Porn? 88-SEP A.B.A. J. 56, 58 (2002) ("The 2000 Children's Internet Protection Act required public libraries to use filters on their computers or risk losing federal funding").⁷

Still, few patrons would expect "XXX-rated," or even non-obscene yet explicitly erotic, magazines to be the first thing they or their children see when entering their community library's lobby. While The Gay Guardian cannot be equated with those publications, the driving question nevertheless remains: whether material to which some within a community might object can, without violating the First Amendment, be relocated to another location within that community's library, or even removed outright.

In other words, why can't community libraries cater to community taste?⁸ And what right does an "unwanted-speech" speaker have to tell a librarian what to acquire and how to present it? Could swastika-bannered hate groups who had similarly exploited the Library's "free-lit" lobby table now similarly demand the same judicial relief? How about "swingers" or other pro-hedonism publications?

Finally, in a world where fanatical terrorism can spontaneously erupt virtually anywhere, why can't librarians, even while concurrently catering to majoritarian taste, consider potential civil-disturbance reactions when arranging materials within their library? Cf. Texas v. Knights of the Ku Klux Klan, 58 F.3d 1075, 1079 (5th Cir.1995) (affirming exclusion of the KKK from participation in Texas's adopt-a-highway program because of the potential for civil strife and interference with court orders); but see Cuffley v. Mickes, 208 F.3d 702, 709 (8th Cir.2000) (Evidence established that Missouri's purported reason for denying participation by the KKK in State's Adopt-A-Highway program — that the Klan had a history of unlawfully violent and criminal behavior — was merely a pretext for viewpoint discrimination; in fact, the State did not know how its regulation applied in practice, had never applied the regulation to anyone other than the KKK, and had never asked an applicant a single question about criminal history), cert. denied, 532 U.S. 903, 121 S.Ct. 1225, 149 L.Ed.2d 135 (2001).

Put another way, what business do judges have in second-guessing a librarian's content selection/arrangement? If the answer is none, or very little, does that change when librarians, as was the case here, create a limited open forum and, without subject-matter guidelines, invite outsiders to supply its content?

In other contexts government officials...