COUNSEL:

For Plaintiff: Robert K. Slattery, Slattery & Associates, 24 West Stephenson Street, Freeport, IL 61032.

For Defendant: Clayton L. Lindsey, Hinshaw & Culbertson, 220 East State Street, Rockford, IL 61104.

Judge Reinhard.

Plaintiff, Leonard Brinkmeier, filed a second amended complaint against defendant, City of Freeport, alleging that his First Amendment rights were violated when he was prohibited from entering the Freeport Public Library. He seeks redress pursuant to 42 U.S.C. § 1983. Defendant has filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56.

The following facts are derived from plaintiff's complaint and the parties' respective Local Rule 12 statements, including the documents in support thereof. Plaintiff's second amended complaint alleges, in pertinent part, that in August 1992, defendant "by its public officials and employees established a public policy that [plaintiff] was not allowed to enter the Freeport Public Library." It is further alleged that on August 12, 1992, plaintiff was served with a "No Trespass Notice" signed by a library employee and prohibiting him from entering the library. Additionally, the complaint alleges plaintiff was denied his First Amendment right of access to information in a public library. In terms of relief, plaintiff seeks an injunction prohibiting defendant from restricting plaintiff's access to and use of the library and a declaratory judgment that the no trespass order is null and void.

Defendant's Local Rule 12(m) statement of facts states that on August 12, 1992, Freeport Police Chief Donald Parker served a no trespass notice on plaintiff prohibiting him from entering the library. Plaintiff had previously harassed a library employee requiring a response on two occasions by the Freeport police department. Exhibit C, which is attached to and referenced in the Local Rule 12(m) statement, is a Freeport police offense report dated August 7, 1992. According to the report, a female library clerk reported to the police that on August 7, 1992, she was approached by a man as she was leaving the library. The man gave her a letter and walked away. She had seen the man in the library before but had never spoken to him. According to the employee, the letter contained offensive material and expressed the man's desire to have sex with her.

Exhibit D, attached and referred to in the Local Rule 12(m) statement, is a supplementary police report dated August 8, 1992. That report states the same female employee reported that the man "who was harassing her" had returned to the library. A police officer identified the man as Leonard Brinkmeier. Plaintiff was advised of the library "management's" wish that he be removed from the library. Plaintiff was so advised, and he left. Additionally, the report states that on August 12, 1992, a trespass notice was signed by John Locascio (library director) and served upon plaintiff by Chief Parker, who then escorted plaintiff from the library.

The Local Rule 12(m) statement further provides that it is the library's policy to preclude any person who "harasses and/or intimidates other library patrons or employees." This statement is supported by the affidavit of Philip Kniskern, the president of the Freeport Library Board. According to Kniskern's affidavit, there is an unwritten practice/policy of the library that persons "harassing and/or intimidating other library patrons or employees of the library may be precluded from the use of the library." The affidavit further states that plaintiff harassed an employee of the library on numerous occasions both prior to and after plaintiff's exclusion from the library. Finally, Kniskern asserts that it has never been the official policy of the library to exclude only plaintiff.

Plaintiff's Local Rule 12(n) statement does not provide any additional facts. Rather, it points out the following issues of material fact which plaintiff argues preclude summary judgment. First, plaintiff characterizes defendant's factual assertion that he harassed an employee as a legal conclusion not supported by any of the police reports nor by any definition of the term "harass," thereby creating an issue of material fact as to whether plaintiff harassed anyone. Second, he argues that any factual assertions regarding his post-exclusion conduct are irrelevant to his claim based on his exclusion. To the extent such a factual statement is relevant, it merely creates a question of material fact as to whether such conduct constituted harassment within the undefined meaning of the unwritten policy. Third, he posits there is a genuine issue of fact as to whether the unwritten policy existed at the time of his expulsion from the library as Kniskern's affidavit does not state when such unwritten policy was adopted, nor has defendant offered any evidence to establish that the policy existed at the time plaintiff was served the no trespass notice. Lastly, plaintiff asserts that there are genuine issues of fact as to whether the unwritten policy promotes or is narrowly tailored to a significant and legitimate interest of the library.

Included with the Local Rule 12(n) statement is plaintiff's affidavit, wherein he states that he was a continuous and regular user of the library for the past six years for the purpose of acquiring knowledge through reading and quiet contemplation. He denies ever harassing or intimidating anyone, including employees, in the library. While he admits delivering a letter to the female employee on a public sidewalk on or about August 7, 1992, he denies ever harassing or threatening her or engaging in any conduct intended to harass, threaten or intimidate her.

In its reply brief, defendant has included additional exhibits in support of its summary judgment motion. The first is a copy of the handwritten letter plaintiff delivered to the female employee. Without unnecessary elaboration, the letter is replete with sexually explicit remarks, including references to plaintiff's sexual prowess and certain of the employee's physical characteristics, and expresses plaintiff's interest in becoming sexually involved with the library employee. There are also copies of numerous incident reports filed with the library concerning various conduct of plaintiff, all of which occurred after his expulsion from the library. There is also a police report dated December 3, 1992, which contains a report by the same female employee regarding an instance of plaintiff repeatedly driving by her grandmother's house in his vehicle on November 27, 1992, and also telephoning her at the library.¹ 

The court now finds that the handwritten letter is properly before the court for purposes of the summary judgment motion as it relates to the matters occurring prior to plaintiff's expulsion from the library. The fact that it was first submitted with defendant's reply brief is of no consequence as it rebuts plaintiff's assertion in his affidavit that he never harassed any library employee. As to the reports and memoranda evidencing events after plaintiff's expulsion, these matters are stricken.

Defendant contends it is entitled to summary judgment for the following reasons. First, it argues that plaintiff cannot prove that he was banned from entering the library pursuant to an official policy or custom. Second, it posits that plaintiff has failed to allege any facts indicating that his First Amendment rights have been violated. Plaintiff responds that there was a policy to exclude him from the library based upon the library director's decision to bar him as well as the police chief's issuance of a no trespass notice. He further posits that he has a First Amendment right to access information contained in the public library for the general public's use. Finally, he maintains that the unwritten policy was not narrowly tailored to serve a significant government interest and was, therefore, violative of the First Amendment.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 249. In that regard, the evidence of the non-movant is to be believed, and all reasonable inferences are to be drawn in its favor. Anderson, 477 U.S. at 255. The question to be determined is whether, if the record of the summary judgment proceeding were the record at trial, a reasonable factfinder could find in favor of the non-moving party. Tobey v. Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir. 1993). One of the dispositive keys to any summary judgment motion is whether the moving party is entitled to judgment as a matter of law. If not, the motion must be denied.

While plaintiff suggests that the policy at issue is one created by the library director and police chief and directed exclusively at him, plaintiff has offered no evidence to that effect. On the other hand, defendant has submitted the affidavit of Philip Kniskern, the president of the library board, stating that there is an unwritten practice/policy of the library that persons "harassing and/or intimidating other library patrons or employees of the library may be precluded from the use of the library." Thus, for purposes of this summary judgment motion, the court will consider the policy or practice at issue to be that described by Kniskern in his affidavit.²  The court will also consider the policy to have been in effect at the time of plaintiff's expulsion.

Plaintiff's complaint is premised on his claim that he has a First Amendment right to use the public library. Accordingly, the court must initially determine the existence and extent of such a right. See Cornelius v. NAACP & Educ. Fund, Inc., 473 U.S. 788, 797, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985). In that regard, the parties cite, and the court finds instructive, the case of Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242 (3d Cir. 1992).

The Third Circuit, in Kreimer, discussed extensively the First Amendment right to receive information. In doing so, it cited numerous United States Supreme Court opinions concerning the public's right to access the dissemination of information and ideas.³  The Third Circuit concluded that the First Amendment does not merely prohibit government censorship but also encompasses the positive right of public access to information. Kreimer, 958 F.2d at 1255. This court agrees with the Third Circuit's reasoning and conclusion that there is a First Amendment right to access the Freeport Public Library.

That right, as is usually the case, is not without limits. As the Kreimer court noted, the right to receive information is not unfettered and may give way to significant countervailing interests. Kreimer, 958 F.2d at 1255. The extent to which the government may limit this right of access depends on whether the forum is public or nonpublic. Kreimer, 958 F.2d at 1255 (citing Cornelius, 473 U.S. at 797).

Relying on Perry Educ. Assoc. v. Perry Local Educators' Assoc., 460 U.S. 37, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983), the Kreimer court identified three types of government forums. The first encompasses such areas as streets, parks, public sidewalks or other public places which have by longstanding tradition or government fiat been devoted to assembly and debate. Kreimer, 958 F.2d at 1255. The second class consists of public property that the government has opened for use by the public as a place for expressive activity. Kreimer, 958 F.2d at 1255. The third category includes nonpublic places which are not by tradition or designation forums for public communication. Kreimer, 958 F.2d at 1256.

The Kreimer court refused to characterize the public library as a traditional public forum because library users are not allowed to engage in certain expressive conduct ordinarily associated with such forums. Kreimer, 958 F.2d at 1256. The court then turned to the question of whether the public library was a designated public forum. After a discussion of various Supreme Court decisions addressing the designated public forum concept,⁴  the Kreimer court determined that the library was a designated public forum. 958 F.2d at 1259. Again, this court finds persuasive the reasoning and conclusion of the Third Circuit that a public library is a designated public forum.

The Kreimer court, however, further concluded that the forum was limited to the extent the government designated the library as a forum for only certain types of express activity, i.e., the communication of the written word. Kreimer, 958 F.2d at 1259.⁵  In other words, the public library was not open for the exercise of all First Amendment activities. Kreimer, 958 F.2d at 1260. Relatedly, the Third Circuit also noted that the exercise of oral and interactive First Amendment activities is antithetical to the nature of the library. Kreimer, 958 F.2d at 1261. As such, the court concluded that the public library is a limited public forum for which Constitutional protection is afforded only to expressive activity of a type similar to that which government has admitted to the limited forum. Kreimer, 958 F.2d at 1261. The library is thus obligated only to permit the public to exercise rights that are consistent with the nature of the library and the government's intent in designating it as a public forum. Kreimer, 958 F.2d at 1262.

In turning to the ultimate issue in this case, whether the limitation placed on plaintiff was a violation of his First Amendment right to access and use the library, this court is guided by the rules applicable to governmental restrictions in this context. There are essentially two axioms that apply here. First, restrictions that do not limit those First Amendment activities which the government has specifically permitted in the designated public forum need only be reasonable. However, these types of restrictions cannot be an effort to suppress expression merely because public officials oppose the speaker's view. Kreimer, 958 F.2d at 1262 (citing Kokinda, 497 U.S. at 501, 110 S. Ct. at 3121.) On the other hand, time, place or manner regulations that limit permitted First Amendment activities within a designated public forum are constitutional only if they are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for the communication of information. Kreimer, 958 F.2d at 1262 (citing Ward v. Rock Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989)).

In Kreimer, the court held that a written rule governing conduct of a harassing or annoying nature was controlled by the reasonableness test because such restrictions are not aimed at activities which the government had specifically permitted in the library. Kreimer, 958 F.2d at 1263 n.24. Applying that test, the court concluded the above-described rule was "fundamentally reasonable" because a prohibition against disruptive behavior is perhaps the clearest and most direct way to achieve maximum use of a public library. Kreimer, 958 F.2d at 1263.

This court agrees with the Third Circuit that a rule which prohibits disruptive behavior in a public library is at least conceptually inoffensive to the First Amendment. However, the way in which any given rule is worded will have a direct effect on whether its designed purpose is effectuated with the least amount of harm to the First Amendment. In the present case, the unwritten policy⁶  is broadly stated and lacks reasonable limitations as to the conduct it seeks to prevent.

For instance, the policy does not define the terms "harassing" or "intimidating." While these words may be accorded their generally understood dictionary meanings, such meaning must be connected to the acceptable purpose of the policy, that is, the prevention of disruptive behavior inconsistent with the use of a public library. For example, assume a person comes into the library and tells a library patron that he will assault the patron as soon as the patron leaves the library. Such conduct certainly falls within the common meanings of intimidation or harassment but does not involve use of the library. Similarly, harassment by looking at someone angrily should not necessarily lead to that person's discontinued use of the library. If it does, then such conduct should provide the basis to infringe upon the actor's access to the library. If not, there is no justification for limiting his library use.

Additionally, the Freeport library's policy fails to place geographical limitations on where such harassment or intimidation can occur. It does not seem reasonable to bar someone from the library because he or she harasses or intimidates someone, even a library employee, miles from the library or even a few feet away. By contrast, if someone, while at a location outside the library, threatened a patron or employee with physical force if he or she went inside the library, such intimidation would clearly disrupt the patron's or employee's use of the library. The problem with this policy as worded is that it does not place reasonable guidelines on the proscribed behavior.

Furthermore, the policy provides for no limitations on any preclusion from use of the library, nor does defendant offer evidence of any custom, policy or practice effectuating any such limitation. Theoretically, a person might be banned forever from using the library for a single instance of misconduct no matter how minor. Certainly, such a result cannot be considered reasonable in light of the First Amendment or recognized concepts of due process. This is particularly true when the policy lacks clarity in other respects.

Lastly, there is nothing in the policy, or as otherwise submitted by defendant, evidencing any informal or formal procedure whereby a person may challenge his denial of access to the library. While this court does not suggest that a policy of this nature must necessarily conform to procedural due process requirements, the conclusion that the policy is less than reasonable is bolstered by the lack of such safeguards in light of the wording of this particular policy.

For all of these reasons, this court finds the unwritten policy applied to bar plaintiff from the library to be an unreasonable limitation on plaintiff's First Amendment right to access and use the Freeport Public Library.⁷  Accordingly, it cannot provide the basis for plaintiff's unconditional expulsion from the library.⁸  Thus, defendant is not entitled to judgment as a matter of law.

For the foregoing reasons, defendant's motion for summary judgment is denied.

Footnotes: