RON O'BRIEN
FRANKLIN COUNTY PRESECUTING ATTORNEY
February 7, 2001 Larry D. Black, Director
Columbus Metropolitan Library
96 S. Grant Ave.
Columbus, OH 43225Re: Library dress rules and access to Library facilities
Dear Mr. Black:
This letter is in response to your request for advice concerning the propriety of the Library's prohibition of patrons' entering the library without shoes or other footwear.
You have sent me correspondence from Robert Neinast, an individual who contends that the Library may not, consistent with the First Amendment to the United States Constitution, promulgate a policy requiring that patrons wear shoes when entering the Library. Mr. Neinast's correspondence is an extended analysis of a Federal Third Circuit Court of Appeals Decision, Kreimer v. Bureau of Police of Morristown (1992), 958 F.2d 1242. The analysis concludes, on the basis of the holding in Kreimer that the Library may not require shoes as a condition of access to Library facilities.
I have analyzed Kreimer and am unable to reach the same conclusion. At page 1263 of the that decision, the court states:
In addition to finding the rules valid under the reasonableness test we are applying, we disagree with the district court's statement that, under Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L. Ed. 2d 731, and Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L. Ed. 2d 222 (1972), the Library may only enact time, place and manner restrictions on activity that "actually and materially interferes with the peaceful and orderly management of the public space."1 765 F. Supp. at 188. (Emphasis added)
Finally, we reiterate that the Library is a limited designated public forum. The Library need only permit use of its facilities which is consistent with the intent of the government when opening this forum to the public. Even within the scope of these consistent uses, it seems obvious that the Library may regulate conduct protected under the First Amendment which does not actually disrupt the Library. For example, we do not doubt that a Library may limit the number of books which a patron may borrow from it at any time, even though no request has been made by another patron for the book which the patron at his or her borrowing limit desires to withdraw. Similarly we do not doubt that the Library may limit the length of time during which a book may be borrowed. Indeed, the district court itself implicitly acknowledged this point when it modified its order so that it did not invalidate the rule requiring the wearing of shoes, since it can hardly be imagined that a person simply by being barefoot would disrupt the Library. (Emphasis added)
The quoted paragraphs make it clear that the Library may enact such reasonable regulations as enable it to function properly, including regulations of conduct that does not actually disrupt library functions. However, Kreimer specifically approves a rule requiring the wearing of shoes.2
In addition, the Kreimer court noted that the regulations in question did not permanently bar rule-breakers from using the library, but only barred them while they were violating the rule. In Kreimer the plaintiff controlled his ability to enter the library by taking a bath. In your case, Mr. Neinast is not permanently barred from the Library, but only when he attempts to enter without wearing shoes.
Based upon the above discussion, it is my advice, in accordance with the Kreimer3 decision, that the Library may implement reasonable rules for the operation of the Library or conduct of Library business, including a requirement that patrons wear shoes while in the library.
Very truly yours,
Jeffrey L. Glasgow
First Assistant, Civil
Footnotes:
1. This statement assumes, of course, that a limited public forum has the authority to restrict activities that are actually disruptive to the operation of the Library. Kreimer extended this authority to reasonable rules that were not aimed at disruptive acts, but were still within reasonable rules of Library operation. [Back]
2. I note that Mr. Neinast quotes the same language from Kreimer that I have set forth in this letter, but reaches the opposite conclusion. I will not discuss his analysis other than to observe that the approval of the policy requiring that shoes be worn was a specific example of the appellate court's general approval of reasonable library regulations, even when they regulate non-disruptive behavior. I would also note that the validity of the footwear requirement had been approved by the District Court, despite the disapproval of other practices that led to the appeal decided in Kreimer. The appellate court assumed the validity of the rule. [Back]
3. I have performed a Lexis search for other cases bearing upon this question. Kreimer appears to be the only case directly applicable to this fact situation. I believe that its logic would be equally applicable if a legal challenge to Library policy was filed in the Federal courts of this Circuit. [Back]