IP: "Squeamish Librarians" by Eugene Volokh

[David Farber <dave () farber net>]

> Date: Wed, 20 Jun 2001 12:27:42 -0400
> To: David Farber <dave () farber net>
> From: Matthew Gaylor <freematt () coil com>
> Subject: "Squeamish Librarians" by Eugene Volokh
>
> "Squeamish Librarians"
>
> by Eugene Volokh,
>
> from http://www.reason.com, June 4, 2001
>
>
> Workplace harassment law, the nation's number-one form of speech code, has
> taken yet another step toward controlling what we may read and say.
> Libraries, the federal Equal Employment Opportunity Commission has just
> ruled, may be breaking the law if they dare to give adult patrons complete
> and unfiltered Internet access.
>
> One can argue about whether libraries have a constitutional duty to
> provide totally unfiltered access, even to adults.  Some people say that a
> library should have the power to control what happens on its property, and
> to stop patrons from accessing sexually themed materials on library
> computers.  Others say that even when government computers and buildings
> are involved, libraries may not censor Internet access.
>
> But until now, most people had assumed that a library had a right to
> provide such access, if that's how it understood its professional
> obligation.  Not so, says the EEOC: Because some material accessed by
> patrons may be offensive to the librarians who end up seeing it, the law
> can punish libraries for allowing such unlimited access.
>
> The case arose in Minneapolis, which used to provide unfiltered access to
> adults in its libraries.  Many libraries do this, and this is, in fact,
> the approach suggested by the American Library Association.
>
> Several librarians, however, filed an EEOC complaint based on what they
> say was "repeated exposure to sexually explicit materials," and an
> environment "which is increasingly permeated by [pornographic] images on
> computer screens, [and] is also barraged by hard copies of the same,
> created on Library provided printers."  Other library employees likewise
> signed a letter saying that "Every day we. . .are subjected to pornography
> left (sometimes intentionally) on the screens and in the printers. . . .
> We feel harassed and intimidated by having to work in a public environment
> where we might, at any moment, be exposed to degrading or pornographic
> pictures."
>
> In late May, the EEOC agreed, concluding that the library's toleration of
> unfiltered access crated a "sexually hostile work environment."  If the
> library doesn't settle with the librarians, the EEOC may sue it to force
> compliance.  According to press accounts, the EEOC is encouraging the
> library to settle the case by paying the librarians a total of $900,000.
>
> Now I sympathize with the librarians -- I wouldn't want to work around
> pornography, either.  Maybe the library could and should take steps to
> boost employee morale, even if that means constraining patrons in some
> measure; as I said, that's a tough constitutional question.
>
> But under the First Amendment, the librarians ought not be able to use the
> federal government, and the threat of massive legal liability, to force
> the library into making this decision.  Remember that the law the EEOC is
> using against the Minneapolis libraries also applies to private libraries,
> such as libraries at private universities -- and, for that matter, to
> private cyber-cafes and other access points, such as Kinko's.  The federal
> government has no right to pressure all these organizations to suppress
> their patrons' Internet access.  Librarians' offense, even understandable
> offense, can't justify restrictions on First Amendment rights.
>
> This is just the latest great leap forward for harassment law.  Harassment
> law already forces employers to suppress sexually suggestive displays (not
> by any means limited to pornography), sexual jokes, politically offensive
> statements, and religious proselytizing.
>
> During the Clinton scandals, employment experts sensibly suggested that
> employers had to suppress Clinton-Lewinsky jokes, because such jokes might
> have helped create a "sexually hostile work environment."  The Department
> of Education's Office for Civil Rights has argued that "educational
> harassment law" -- a body of law developed by analogy to workplace
> harassment law -- requires universities to implement student speech codes.
> The U.S. Civil Rights Commission has likewise argued that public
> accommodations harassment law outlaws American Indian team names and
> mascots, on the grounds that such symbols are racially offensive.  The
> Massachusetts Commission Against Discrimination forced a Boston bar to
> take down a display that supposedly expressed racist viewpoints.
>
> Workplace harassment law has already been used to suppress art displayed
> in universities and in government buildings.  It was only a matter of time
> before it stepped in to censor libraries.
>
> And of course workplace harassment law applies to racially and religiously
> offensive material as much as to sexually offensive material.  Librarians
> can equally complain about patrons accessing supposedly racist material --
> not just Nazi sites, but also Web pages for the sports teams with American
> Indian names that the U.S. Civil Rights Commission says are racially
> harassing.  The same goes for patrons accessing supposedly religiously
> bigoted or blasphemous material.
>
> Once the law tries to suppress offensive viewpoints -- especially under
> the vague rubric of speech that is "severe or pervasive enough" to create
> a "hostile, abusive, or offensive work environment" based on race,
> religion, sex, and so on -- the logic of the law keeps it spreading
> further and further outward.  The strange career of harassment law is a
> sobering reminder that "slippery slope" arguments, while often abused,
> have a lot of truth to them.  In a legal system such as ours, which is
> built on precedent and analogy, it's easy for even initially narrow speech
> restrictions to grow dramatically over time.
>
> Some people argue that libraries should use technological solutions short
> of filtering -- putting up privacy screens on their computers, for
> instance.  Such screens, though, are far from perfect:  People might still
> be able to see the screen when they walk by directly in front of the
> computer.  Moreover, they do nothing about librarians' complaints about
> seeing offensive material in a printer bin.  Setting up privacy screens
> gives libraries no immunity from massive legal liability.
>
> But more important, even if it's wise for libraries to implement such
> solutions voluntarily, focusing on them misses the big question: Should
> the government be in the business of creating a nationwide speech code --
> for public and private workplaces, universities, stadiums, libraries, and
> bars -- that use the force of law to suppress offensive speech and
> offensive viewpoints?
>
> When the federal government insists that even libraries must become
> offense-free-zones -- on pain of massive liability if the libraries should
> choose a more liberal approach -- our First Amendment rights are in
> serious jeopardy.
>
> * * *
>
> Eugene Volokh is a professor of law at UCLA School of Law, and the author
> of a forthcoming First Amendment textbook.  His work on the tension
> between harassment law and the First Amendment is gathered at
> http://www.law.ucla.edu/faculty/volokh/harass, and a recent article that
> focuses on free speech and harassment law in cyberspace is available at
> http://www.law.ucla.edu/faculty/volokh/harass/cyberspa.htm.
>
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