EEOC view of library-porn case 'out of step' with First Amendment
By Alicia Benjamin-Samuels
An Equal Employment Opportunity Commission ruling last month that said unrestricted Internet surfing at the Minneapolis Public Library created a hostile workplace for librarians is "out of step" with the First Amendment, according to constitutional attorney Robert Peck.
A group of librarians, known as the Minneapolis 12, filed a complaint with the EEOC last year that said they were repeatedly exposed to pornography when library patrons accessed sexually explicit material. The pornographic surfing created a hostile work environment, the librarians said.
On May 23 the EEOC issued a preliminary ruling against the Minneapolis Library System, saying the library's unrestricted Internet access policy created a sexually hostile work environment for the workers.
The EEOC's preliminary ruling, or "determination," is a recommendation. The EEOC suggested that the Minneapolis Library System pay each of the 12 employees $12,000, the Minneapolis City Pages reported June 20. The librarians' attorney, Bob Halagan, said if the library system doesn't settle, his clients could file a workplace-harassment suit or the federal government could sue on their behalf, according to the City Pages article.
But Peck said when the Los Angeles Fire Department adopted an anti-harassment policy that barred nude photographs in the workplace, a federal court invalidated the policy as interfering with free-speech rights.
"Those claiming to be harassed, the court added, needed to show that there was a real disruption of the workplace by the offending conduct," Peck told freedomforum.org.
Because libraries exist to provide citizens with access to information, pornographic material "that is within the protection of the First Amendment cannot be banned," he said.
The courts have found that there must be reprehensible conduct accompanying the exposure to sexually explicit material, Peck said. "The EEOC seems to have gone beyond these requirements."
The librarians contend that shocking conduct goes along with smut surfing.
In a statement accompanying the EEOC complaint, library employee Virginia Pear said the pornographic surfing had been accompanied by sexual activity at the library, including masturbation.
Wendy Adamson, one of the Minneapolis 12, said sexual images were routinely left on computer screens, the St. Petersburg Times reported June 15. Also, last month police arrested a Minneapolis Public Library patron for viewing child pornography online, the Saint Paul Pioneer Press reported on May 25.
"I have on numerous occasions observed children watching adults access this material or be surprised by what they find left on a terminal they wish to use," Pear said in the complaint.
But Peck said, "While the library must support the free flow of information, inappropriate behavior, sexual or otherwise, has no place in a public library. That behavior usually carries sanctions, including, at one extreme, loss of library privileges and referral to the police. A library should follow such policies."
In a June 4 Reason Online article, Eugene Volokh, UCLA School of Law professor, said although he sympathized with the librarians, the government should not use the law to create a speech code that suppresses speech and viewpoints some consider offensive in workplaces.
"When the federal government insists that even libraries must become offense-free zones … our First Amendment rights are in serious jeopardy," Volokh said.
But respecting the First Amendment is not always easy, said Robyn Blumner in a June 15 St. Petersburg Times editorial. "In a marketplace of ideas, deeply disturbing ones are bound to exist," she said. "That's the tough part of freedom. It comes with certain trade-offs, one of which is we agree to occasionally be offended, disgusted or made to feel bad."
Last year the Minneapolis Public Library implemented new rules to deter library visitors from porn surfing, City Pages reported. Internet users must present a photo ID before using computers, limit computer use to 30 minutes and refrain from viewing material considered "obscene" under state law.
But by the time the policy went into effect, the Minneapolis 12 had filed their EEOC complaint.
American Library Association representatives were at a conference and could not be reached.
Massachusetts libraries debate restricting patrons' Internet access
Staffers say issue presents immediate dangers because of local, federal filtering mandates and worries over public voyeurism, obscenity.