I'm not planning to post every paper I wrote in school, but
Woeful had a comment on the Liberry page about a New Jersey patron, and coincidentally, I wrote a paper on that case (co-wrote with The Magster, another library student, who wrote the introduction since I would never use the word
plethora,... twice).
So here goes. I don't remember what grade I got, so plagiarize at your own risk (if you think rewriting a 1992 paper will help your grade).
And fyi, I remember that a few days before the paper was due, the court rendered the decision and we had to get permission to go to the law library and log on to lexis/nexis and get a copy of it. Remember when database searching was, like, six dollars a minute?
And this goes without say, but IANAL, so any opinions expressed in this paper that piss you off are for entertainment purposes only.
Introduction.
The case which was investigated and scrutinized was one which will certainly have a distinct effect on libraries and library policies for a long time to come. It arises from a
plethora of opposing sides, opinions of how the library should be used, and what rules will be utilized in keeping its innate "library functions" and how these all weave into the First Amendment's right to freedom of speech which in turn "encompasses a right to receive ideas" [PA, 3].
The difficulty of this case arises from the enormous responsibility of the library which is really quite mind-boggling. There will be long term repercussions which will result from the importance of the library's fulfilling an almost impossible goal. First of all, "[t]he library does have a unique role as the storehouse of the First Amendment. The world of books is the most remarkable creation of man. Nothing else that he builds ever lasts. Monuments fall; nations perish; civilizations grow old and die out; and after an ere of darkness, new races build others. But in the world of books are volumes that have seen this happen again and again, and yet live on, still young, still fresh as the day they were written, still telling men's hearts of the hearts of men centuries dead" [NJLA, 20].
Considering this, the importance of the case of
Kreimer v. Morristown takes on and especially poignant quality, and the difficulty of solving it stems from opposing, but thoroughly legitimate points of view.
At the time of the specific controversy, Richard Kreimer was a 41-year old homeless man who used the Joint Free Public Library of Morristown, New Jersey on a regular basis. There came a point, however, when he wasn't just using the library perhaps for reading books or magazines, but was engaged in certain activities which could be considered a nuisance. Although he was also reported to have harassed certain women and children as well as being belligerent to a librarian, the main point that seems to have arisen was that he exuded a particularly foul odor and caused it to be impossible for other people to exercise their own rights in the usage of the Library.
In response to this problem, the Library drew up specific rules for the purpose of dealing with the men and subsequently had him evicted on the premises of the new rules.
He retaliated by bringing the case to court with the help of the American Civil Liberties Union, and under the decision of Judge H. Lee Sarokin, it was found that his rights as pertained to the First and Fourteenth Amendments had been violated and he was awarded over $250,000 in various forms of compensation. Of course, this wasn't the end. And it won't be the end as a very real Pandora's Box has been opened, exuding a
plethora of ambiguities pertaining to the rights of people in relation to that all-encompassing vat of knowledge, the library, and the library's own rights to protect itself in the face of certain advantages being taken of it.
Part 1: Summary of Judge Sarokin's Opinion.
United States District Judge H. Lee Sarokin gave his opinion on the case of Richard R. Kreimer v. Bureau of Police for the Town of Morristown, et al. on May 22, 1991. Kreimer requested a judgement essentially declaring the library's "Patron Policy" invalid in that it denied him access to information guaranteed in the First Amendment. On May 16, 1989, in response to numerous complaints by patrons of inappropriate behavior by other users of the library, the Joint Free Public Library of Morristown, New Jersey adopted a list of rules to allow for the removal of persons who persisted in the disruption of the natural library functions. These rules were amended after criticism by the local ACLU to include the following entries:
1. Patrons shall be engaged in normal activities associated with the use of
a public library while in the building. Patrons not engaged in reading, studying, or using library materials shall be asked to leave the building.
5. Patrons shall respect the rights of other patrons and shall not harass or annoy others through noisy or boisterous activities, by staring at another with the intent to annoy that person, by following another person about the building with the intent to
annoy that person, by playing walkmans or other audio equipment so that others can hear it, by singing or talking to oneself or any other behavior which may reasonably
result in the disturbance of other persons.
9. Patrons shall not be permitted to enter the building without a shirt or other covering of their upper bodies or without shoes or other footwear.
Patrons whose bodily hygiene is so offensive as to constitute a nuisance to other persons shall be required to leave the building.
In his opinion in favor of the plaintiff, Sarokin noted several cases and reasons to support his decision. He lauded the public library as "one of our great symbols of democracy" [1], and he admitted that libraries "should not be transformed into hotels...for the needy" [2]. But yet, he suggested that although the "public has a right designate which of its institutions shall be utilized for particular purposes," [2] he elevates the status of Kreimer above that of the library, the "great symbol of democracy" by classifying Kreimer as a "homeless" as if the condition of homelessness is a bargaining chip used to up the ante in Kreimer's favor. If fact, Kreimer is excluded from the decision altogether, as if his activities don't matter at all, only his position as a homeless, as Sarokin explains that "this motion...does not...pertain to [the] plaintiff's conduct in any way" [3]. Sarokin also notes the opinion of amicus the American Civil Liberties Union on their concern that the "Patron Policy" of the Joint Free Library of Morristown might deny one class of persons the use of library facilities while allowing another free use. Sarokin and the ACLU have designated this class; the library policy has made no such distinction between others and the homeless, only between those who annoy by noise-making or "bodily hygiene [which] is so offensive as to constitute a nuisance to other persons" and others who do not.
Still, Sarokin's judgement was based primarily on the First Amendment to the United States Constitution regarding "freedom of speech." He also acknowledged that the New Jersey Legislature empowers the public library Board of Trustees with creating and enforcing rules and regulations regarding proper use of the library. So his opinion on the case was guided by the Morristown public library "policy" and its relationship to the freedoms expressed or implied by the U.S. Constitution. What is agreed is that reasonable time, place, and manner restrictions may be placed on a location, but that they must be narrow in breadth. It is also agreed that the library is a public place, but Sarokin contends that it is also a "'quintessential' public forum" [13]. Sarokin believes that designated public forums are treated the same as traditional public forums. While most can agree that the public library may be a designated or limited public forum, as in a meeting place for the expression of ideas, it may not be so easy to agree on calling it a "quintessential" public forum where speeches may be made.
Sarokin makes a point of squashing the notion that "annoyances" and "nuisances" as listed in the "policy" are different from "disturbances" which can and have been legitimately regulated against. Presumably, because the homeless can often be nuisances or annoyances, he feels that this language is overbroad. He also feels that to expel a homeless or poor person from a public library is an even greater crime because that person may not have the money to "purchase even a single newspaper" [18]. And his opinion of punishment "without any requirement of evidence or suggestion that the excluded patron will be disruptive on a later occasion" [18] is so liberal as to suggest that he believes that no one should be excluded from library privileges (or punished? or jailed?) ever. How can one prove that someone will be disruptive at a later date? Kreimer was documented as an annoyance/nuisance/disturbance at least four times in his pursuit of ideas prior to the library's drafting and implementation of the "policy." Sarokin offers no assistance in the dilemma.
Sarokin cites Brown v. Louisiana (1966) in his defense of Kreimer's right to occupy space in the library without actually using library materials. In Brown, five black men were arrested for occupying space in a library while conducting a silent protest without making use of library materials. The U.S. Supreme Court overturned Brown on the grounds that the five men were not interfering with the library's function or annoying anyone. Sarokin feels that just as a patron can avert his eyes from an unwelcome or uncomfortable visual intrusion (such as persons assembled in silent protest) other patrons who consider intense bodily aroma to be a nuisance can simply move their seats [30]. Apparently, being forced to relocate one's materials and property to distant locations away from the offensive smell is not considered a disruption in Sarokin's view. He is simply concerned that these guidelines for library behavior may be abused by overzealous, librarians with overly sensitive olfactory organs. Sarokin believes that conditioning library usage on how a person smells forces an unfair and "unreasonable wealth classification" on the homeless and those who do not have access to soap and water (and those who urinate on themselves).
Regarding paragraph 1 of the "policy," Sarokin points out "that a patron may use the library as a quiet place...to balance a checkbook" (according to defendants' counsel). This supports Kreimer's claim that the rules are overbroad and unenforceable in that selective non-library related are allowed and others are not. Again, although Kreimer's activities were seen as "disruptive," the issue at hand was not Kreimer's actions but the wording of the "policy." Sarokin rules paragraph 1 (and, in fact, much of the "policy") as "hopelessly vague" and unconstitutional [28].
Sarokin only sees the library "policy" as harmful, forcing class distinctions, and limiting access to homeless individuals. He refuses to note that non-use of library materials in not the sole reason for denying an individual access. Paragraph 1 of the policy contain wording which appears broad, but "library activities" are often varied. Libraries often stock income tax forms which are not necessarily library materials, but are allowed to be filled out in the library. "Studying" can apply many things. Sarokin refuses to believe that librarians would not be competent enough to distinguish studying from staring vacantly into space. In Paragraph 5, Sarokin ignores the actions of "staring" and "following" to focus on the meanings of "harass" and "annoy." He fails to recognize that each broad term is contingent on the specific actions which accompanying it (actions which were directly attributed to the plaintiff). For reasons such as this, and others, the library chose to appeal.
In Response...
In response to Judge Sarokin's opinion there rose many different dissenting voices, giving the issue such a multi-faceted appearance as to make it as controversial as something as muddy and difficult to figure out as abortion. On the one hand, to begin with, the very nature of libraries being seen as highly elevated sanctums of learning which possess the power and responsibility of being there when a person has the volition to be intellectually illuminated, puts the library on a high ethical level because learning is perhaps one of the most ineffable erasers of class or status.
"The Public Library is one of the great symbols of democracy" [NJLA, 22] and the American Library Association has always been at the forefront of supporting equal access to information for all people, including the homeless and low income peersons. This is further iterated in the fact that libraries retain the responsibility for urging the poor to take advantage of this democratic society through use of the library. Thus the library tends to err on the side of the underdog. However, there still remains the fact that the library must retain its essential purpose, and rules must be made and followed in order to realize this end. "The exchange of ideas is an essential part of the educational process, but the need for discipline and order is great....." [NJLA, 15]. This quote appeared in a discussion contained in the "Brief on Behalf of Amicus Curiae, New Jersey Library Association," speaking about the fact that while the library is a public forum, it is differentiated from streets and parks in that, like a fairground which happened to be the subject of another case Heffron v. International Society for Krishna Consciousness, Inc., its parameters set a delimiting factor which makes it altogether necessary to set certain guidelines as to its usage and functions. In the Heffron case, "Justice White authored the United States Supreme Court's holding which upheld regulations that restricted First Amendment expression in a limited public forum" [NJLA, 12]. It goes on to cite another case in which protesters were barred from putting up tents in Lafayette Park, Washington, DC, "to draw attention to the plight of the homeless" [15]. This case, Clark v. Community for Creative Non-Violence, met its end when it was decided that a particular regulation was for
maintain[ing] the parks in the heart of our Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence. To permit camping--using these areas as living accommodations would be totally inimical to these purposes, as would be readily apparent by those who have frequented the National Parks across the country and observed the unfortunate consequences of the activity of those who refuse to confine their camping to designated areas [16].
In this view, the opinion of Judge Sarokin that libraries should only be able to make rules involving loud or boisterous activity, or extremely ostensible botherance erects a limiting device to the need of the library for regulating non-library related activities.
The NJLA is dismayed at the chilling effect the opinion exerts on library boards of trustees attempting to adopt rules and regulations to ensure that all persons have the right to use the facility for library related activities" [NJLA, 23].
The matter is ambiguous, because in protecting the rights of everyone, there are inevitably going to be inequities of rights protected, and whose rights take precedence when this occurs? "While the library as a forum may be imbued with First Amendment protection, each occupant of the library is not automatically enshrouded with a First Amendment cloak." [NJLA, 23].
For instance, in the case that was addressed, that being simply the fact of his bodily hygiene, there were also occurrences of behavior that were not brought out, one being the harassment of children. The issue here is whose rights are to be deemed more "important", Mr. Kreimer's or the child who is also in the library designated for serving his purposes as well as Mr. Kreimer's.
While the fact exists that through the resolve of the American Library Association, that "libraries serve the function of making ideas and information available to all members of society, without discrimination...including the indigent or the economically disadvantaged...The right of free access to information for all individuals is basic to all aspects of library service" [Appeal, 6], public libraries must be able "to ensure that all patrons may exercise their First Amendment right to use the facilities unhampered by the conduct of other patrons" [Appeal, 21].
In other words, while Judge Sarokin admitted on the one hand that he agreed that libraries should not be utilized as soup kitchens or shelters for the needy, he contradicts himself by using the other hand to still all efforts at protecting the libraries' role in the promulgating of the First Amendment:
By developing regulations which clarify the limited public forum of the
library, its board of trustees are protecting and strengthening the role
of the forum for all...for example, certain libraries have adopted
guidelines that require small children to be accompanied by an adult.
The avowed purpose of the guideline is the safety of the child, as well as to
ensure that the child is not disruptive [NJLA, 22].
This amicus curiae goes on to a second point in which it puts forth a rebuttal to Judge Sarokin's ruling that the only restrictions that may be made regarding proscription of activities in the libraries are those relating to disruptive behavior. The negative aspect of this is simply that in trying to prohibit ambiguity, the judge succeeded in limiting the issue to the point of denuding it of salient points. In Point II of the NJLA amicus, the point is brought up that "under the trial court's rationale, plaintiff could exercise, sleep, operate a business, knit, and engage in innumerable other activities that are incompatible with the use of the library. Not only is the use unintended, but more importantly, it precludes patrons who seek to use the library from utilizing the library's resources and services" [26].
All in all, Judge Sarokin succeeds very well in repeatedly contradicting himself. At one point he upholds the rule designating the necessity of shoes and shirts for health reasons, which is not a disruptive issue, but then further along the line, he limits other equally important areas saying that they do not fit in with the disruptive standard.
Furthermore, at the same time, as saying that the existing roles of the Morristown Public Library were too vague, he trimmed them down to the disruptive rule, and they are, though more proscribed, equally vague in their adumbrated state. The result of this reality is that "the Sarokin decision will have a chilling effect on libraries because many will not promulgate needed regulations" [NJLA, 28].
Another point to be considered is the fact that this case could be taken out of the context of the library and stated in general terms of conduct which would apply anywhere. This is briefly summarized in the amicus of the Freedom To Read Foundation: "If, in a particular case, a public library could demonstrate that other substantial interests--including public safety, compliance with state or local laws of general application, etc.---support a particular regulation, that regulation could be upheld if the library could also demonstrate that the library's interest is unrelated to the suppression of freedom of expression and that the regulation's 'incidental effect on access to the information is no greater than is necessary to further that other interest'" [24].
In defending Richard Kreimer, a variety of "nit-picking" elements were put forth attacking the "vagueness" and "subjectiveness" of the library patron policy. One point that was brought up dealt with the policy that the library must be used for library related purposes- in retaliation to this it was opined that when an individual stopped reading and began contemplating, that was the point at which he must leave.
It seems that in the revered sanctum of law terms that there could be room for a little common "horse-sense," without the danger of litigation. There is a veritable chasm which exists between the example of a patron engaged in contemplating with his eyes closed what he has just read and the point to which the plight of the Las Vegas- Clark County Public Library has reached: a lawsuit was filed on behalf of homeless patrons, alleging that "the library used the odor policy and restrictions on baggage and periodicals used to deny service to the library...anywhere from 25 to 250 homeless individuals use the facility as a shelter daily, but when a homeless rights action is being staged, they fill up all 125 available seats...[which] makes it impossible for us to function as a library'" [AL, 127].
In light of this glaring disparity, it is indeed evident that what is needed is "that a statutory or regulatory prohibition be set out in terms that the 'ordinary person exercising ordinary common sense' can sufficiently understand and comply with" [JFPB, 39]. And, "according to the Random House Dictionary of the English Language, a 'library' is 'a place set apart to contain books and other material for reading, study or reference...' The Patron Policy enumerates library related activities as 'reading', 'studying', and' using library materials'. How the district court could conclude that the general public would not understand that a library is a place to go to read, study and use library materials is unfathomable" [JFPB, 40]. But lacking sufficient common sense, the American Library Association's Intellectual Freedom Committee has drafted a list a guidelines which should ease concern over the problem. With their assistance and support, situations such as the Kreimer case should be avoided in the future.
Appeal.
The Third Circuit Court of Appeals overturned Judge Sarokin's decision in the Kreimer v. Morristown case. The court rejected Sarokin's "Opinion" on several grounds. In response to Sarokin's claims that a library is a "quintessential public forum," the court concluded that a library is not like a public park or sidewalk: "a library patron cannot be permitted to engage in most traditional First Amendment activities in the library, such as giving speeches or engaging in any other conduct that would disrupt the quiet and peaceful library environment" [the Appeal document contains no page numbers and is printed unevenly, so the specific locations of these, and the following quotes, is unavailable]. The court then concluded that a library is only a limited public forum, designated for a specific purpose. The use of the library as a meeting place is not in dispute. But Sarokin "relied heavily, and in [their] view, improperly, on the Supreme Court's decision in Brown v. Louisiana...the [Supreme] Court was quick to point out that 'the circumstances here were such that no claim can be made that use of the library by others was disturbed by the demonstration.'" Sarokin envisions a library where freedoms are absolute and not reliant on the effects which certain activities may have on others. There is a definite and essential difference between quiet protest and Kreimer's physical and odoriferous intrusions: "rule 9 does prohibit behavior that is actually disruptive, for the offensive nature of the patron's bodily hygiene must rise to the level of a nuisance before the patron may be expelled from the Library."
Sarokin's "Opinion" is also challenged in its use of the homeless as a "suspect class." The "policy" rules make no mention of a homeless class; it is only the sensational nature surrounding the events of Kreimer's situation and the current problems involving the homeless and where they spend their time which influenced Sarokin's attitudes toward the "policy." "To provide a fair method to expel any disruptive patron...the rules [of the policy] need only survive the lowest standard of review for equal protection purposes" according to the court.
The court found that "on their face" the rules contained within the library "policy" were "not invalid." Although there are several broad terms in the "policy," the court ruled that this "is not synonymous with vagueness" as charged by Kreimer and decided by Sarokin. Therefore, the decision was overturned.
Conclusion.
It is initially very easy to form a pre-mature opinion on either side of this case, but on delving further into the intricacies involved the issue quickly becomes less easy to assimilate.
There are valid points to both sides of the issue, and the factor which must ultimately tip the scales stems from several different considerations; these being what the purpose of the library come down to, and how many people are being benefitted as opposed to the rights of an individual being allegedly violated. "An individual's presence in a church does not transform him into an apostle...It appears from the record that the plaintiff's activities in the library are unrelated to his use of the library for library related activities" [NJLA, 25].
It appears that simply through his being able to sue using legal technicalities, Kreimer was able to assert his own rights at the expense of rights of many individuals who come to the library for intellectual enlightenment. This is obviously, using common sense, not just. the issue is not that he was being discriminated against, but that he was imposing himself in such a way as to curtail the rights of many other individuals.
The fact is that no matter what he might wish to do in the public library, taking advantage of his rights to the First Amendment, that certain guidelines must be followed in using the public library, or it will fail to serve its purpose.
"Public libraries should be and, under our constitution, must be accessible to rich and poor alike, but should not be equated to or mistaken for public parks, either by our courts or our citizenry. Libraries are a place for quiet, orderly pursuit of knowledge, not a public hangout, and the Constitution does not prohibit the promulgation of regulations designed to enforce that distinction" [AG, 2].
It seems that in the final analysis, the most important quality to be exercised is common sense.
There are limitations in the English language with respect to being both
specific and manageable brief, and it seems to us that although the prohibitions
may not satisfy those intent on finding fault at any cost, they are set out
in terms that the ordinary person exercising ordinary common sense can
sufficiently understand and comply with, without sacrifice to the public
interest [JFPB, 41].
Works Cited
Appeal, United States Court of Appeals for the Third Circuit, 91-5501, March 23, 1992.
Attorney General of New Jersey, Amicus, 91-5501, November 4, 1991.
Freedom to Read Foundation, Amicus, 91-5501, September 11, 1991.
Joint Free Public Library of Morristown, Amicus, 91-5501, August 9, 1991.
New Jersey Library Association, Amicus, 91-5501, September 21, 1991.
"News Front," American Libraries, February, 1992, p. 127.
Public Advocate of New Jersey, Amicus, 91-5501, November 26, 1991.
Sarokin, H. Lee, U.S. District Court Judge, Kreimer v. Morristown, 90-554, May 22, 1991
