UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION


ROBERT A. NEINAST

PLAINTIFF,
V.
BOARD OF TRUSTEES OF THE
COLUMBUS METROPOLITAN
LIBRARY, et al.

DEFENDANTS.
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CASE NO. C2-01-443





ORAL ARGUMENT PROCEEDINGS

BEFORE THE HONORABLE ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE, SITTING AT COLUMBUS, OHIO, ON FRIDAY, FEBRUARY 22, 2002.

APPEARANCES:

ROBERT NIENAST, PRO SE,

THE PLAINTIFF.

PHILOMENA M. DANE, JONATHAN SULLIVAN, ATTORNEYS AT LAW,

ON BEHALF OF DEFENDANTS.






JOAN E. KOENIG, FEDERAL COURT REPORTER
COMPUTERIZED TRANSCRIPTION


  FRIDAY MORNING SESSION
  FEBRUARY 22, 2002



THE COURT: Would counsel please identify themselves for the record, beginning with the plaintiff.

MR. NEINAST: My name is Robert Neinast. I am the plaintiff and I am acting pro se.

MS. DANE: Your Honor, good morning. Philomena Dane. I am counsel along with John Sullivan who is my co-counsel and Larry Black, the executive director of the library, as well as Lori Brown, our law clerk.

THE COURT: Ms. Dane, this is your motion for summary judgment. Are you ready to proceed?

MS. DANE: Yes, I am, your Honor.

Good morning, your Honor. If I may, I would like to reserve a few minutes for rebuttal time if necessary.

THE COURT: Yes.

MS. DANE: Your Honor, this case addresses a number of issues, but at the core of the constitutional questions is one focused issue, I believe. And that is what level of scrutiny must this Court use to evaluate the library's regulation requiring shoes as a condition to gaining access to its physical facilities is constitutional. And it's the library's position, your Honor, that that level of scrutiny is the rational basis test.

The basis for that is three-fold. First, the act of walking barefoot is not expressive conduct subject to First Amendment protection.

THE COURT: It's not speech; that's what you're saying?

MS. DANE: It's not speech, your Honor, correct.

The First Amendment right of physical access to the library does not exist.

Second and third, to the extent that Mr. Neinast has a liberty interest in his personal appearance -- and that is not determined yet by the Supreme Court in the Kelley case, we only assume that such a right exists -- but every court that has address that question, your Honor, has examined it not as a fundamental right in the Carolene Products sense but rather as a right that exists but is subject only to the rational basis test.

THE COURT: What is the third element?

MS. DANE: That is the third element, your Honor.

The first one is that there is speech;

The second is that there is no First Amendment right of access to the library, and

The third element is that the liberty interest, to the extent one exists, is reviewed on a rational basis test.

THE COURT: What about Mr. Neinast's position that the library is a public forum, and because it is a public forum, his actions should be analyzed in the context of strict scrutiny?

MS. DANE: Your Honor, before the public forum analysis begins, there has to be a constitutional right at stake. In Iscon, for example, the Court said the first question is whether there is a First Amendment right. If walking barefoot is not expressive conduct, then the public forum analysis doesn't begin.

If there is no First Amendment physical right to access to the library, then the public forum analysis doesn't begin.

But even if one assumes there's a First Amendment right, then the library is not a public forum in the sense -- in the traditional sense of a sidewalk for a park, but rather it's a designated public forum for which there is limited access. And as long as the regulation is content-neutral and reasonable, content-neutral in the sense that it doesn't discriminate on the basis of the speaker's speech, then the regulation is constitutional.

And here the regulation with regard to going barefoot is content-neutral. It's not addressing the content of anyone's speech. It's simply a content-neutral restriction that is a reasonable one related to legitimate government interest: safety and the library's finances.

THE COURT: Let me back up a moment. Because I think that from the vantage point of the plaintiff, the most compelling issue is the legitimate interest of the library in not having barefoot people in the library.

What is the legitimate interest of the library in precluding people from the library if they don't have on shoes?

MS. DANE: There's two legitimate interests, your Honor, that exist in this case. One is the library's interest in protecting the safety of its patrons.

THE COURT: How does somebody having shoes protect the safety of the patrons?

MS. DANE: In the documents that were provided as part of the record, even though one wouldn't assume it, the library has a lot of stuff on the floor: feces, semen, blood, broken glass. There are incident reports at the various locations with regard to those kinds of physical hazards that exist on the floor. And the library has determined in its decisionmaking process that a blanket prohibition requiring shoes is a reasonable means by which to address that safety.

The second component of it is in the event that someone does slip, fall, cut themselves and is exposed to the biohazards that unfortunately in the library system, it's the interest in protecting the financial well being of the library system. Whether there is a legitimate suit that would arise out of it, as we all know legitimate or illegitimate, people bring suits and the library is obligated to defend it. And those are its interests.

Mr. Neinast has argued that there might be a better way to do it; that people wearing shoes could be subject to the same risks. There is no evidence with regard to that, your Honor, that's in the the record and that's Mr. Neinast's burden. But that aside, under the rational basis test, the library doesn't have to have the best interest. It needs to be a rational basis, not an irrational one, and the library's interests in the safety of its patrons and in protecting its financial wherewithal are legitimate interests.

THE COURT: I don't have any more questions of you. That was my primary question going in. You may save the remainder of your time for rebuttal.

Thank you, Ms. Dane.

Mr. Neinast.

MR. NEINAST:

Your Honor, this suit is not about some constitutional right to go barefoot any more so than other free speech cases about the right to say some particular word or the right to address some direct topic. Instead, it is a suit about arbitrary rules enacted and enforced by a government entity based on the sense of propriety of one individual.

THE COURT: Let's start with the proposition that there is a rational basis for the enactment of this rule requiring some shoes or requiring shoes in the library. As set forth by Ms. Dane, one of the basis for this rule is that it protects the public because there's glass, feces, semen, and the like that would be protected by the use of shoes. Why is that not a rational basis, Mr. Neinast?

MR. NEINAST: There are a couple of reasons. First of all, there is no real evidence that has been presented -- while they presented evidence that there are incidents in the library, it looks like when I added them up over the five-year period, there were about a 100 of them. So we're talking a total of 20 incidents a year. That's pretty improbable for anything to happen as a result of that.

They also did not say how any of these incidents actually would lead to some barefoot injury.

For instance --

THE COURT: Well, if there's glass on the floor, certainly one's foot could get cut. If there is blood on the floor that's tainted blood and you have some cut or crack in your foot, that could expose you to some disease. Or if there is semen or feces on the floor, the same would apply. So 100 incidents over a five-year period may not be much, but if you're that one person who, let's say, worst scenario case contacted AIDS or some other communicable disease, the one incident would be far, far too much.

Why can't the library enact measures to prevent that?

MR. NEINAST:

Well, your Honor, aside from the improbability of it, the general interest is in the health and safety of the public in general. For instance, I quoted in Jacobson, the inoculation case, they could do that because it prevented disease from being spread to other folks. The government does not have a legitimate government interest in protecting a person from themselves until it spreads beyond that one person. For instance, in my briefs I talked about the motorcycle cases. I gave a couple other examples like smoking, but one could go up and down the line. Can the government ban skiing? Can the government ban roller blading? Certainly not. This is no different from that.

If, for instance, barefeet emanated these, you know, magical death rays, yes, you would be protecting the library patrons in general, you would be protecting the general public, but not protecting individuals from themselves.

THE COURT:

Even in a public place?

MR. NEINAST:

The streets are public places. All sorts of regulations on streets. Even traffic laws are not necessary to protect an individual from themselves but to protect society at large. The zoning laws --

THE COURT: I don't know about that, Mr. Nienast. It would seem to me that the pedestrian traffic signals are designed to protect drivers as well as pedestrians. To protect pedestrians from the prospect of getting hit by a car --

MR. NEINAST: And society.

THE COURT: And society. They are designed to protect both. The point is that there is a rational basis for the enactment of the rule; that is, to protect the patrons of the library, whether it's from themselves or from others. Because if you contract the communicable disease as a result of going barefoot and pass it on to someone else who passes it on to someone else, then the public has been affected, however remote it would be. But it's still rational. The Court is not empowered to look behind it and substitute its judgment for that of this limited public forum. I might say that there is another way. But there has been no demonstration that what the library decided to enact is not rational, not rationally related to the governmental interest.

And courts, the jurisprudence on this is clear that a public entity such as the library can take steps to insure the public health and safety. So there seems to be a rational relationship there.

MR. NEINAST: The question I think becomes how much of a scintilla of risk is necessary. Under the legal theory that the library had advanced, no regulation would be subject to oversight. As an extreme example, the library could, Taliban-like, require women to wear bergas. They could say there is no constitutional right to go berga free. They could say this is for women's safety because a covered woman would be less likely to be sexually assaulted.

THE COURT: I don't know that's true either because then you're singling out a particular group of people along gender lines and gender has been determined to be a suspect classification, so it would be subject to strict scrutiny.

There has never been any case which has divined that people who decide to go barefoot are a suspect classification --

MR. NEINAST: No, there is not.

THE COURT: -- and therefore any regulations directed at them would be subject to strict scrutiny. At most, it would be subject to a rational review basis, which gets us back to the point that it is rational, arguable, for a library to take steps to insure that the health and safety of its patrons are observed.

MR. NEINAST:

Only if the myths regarding the danger to barefooters was actually true. Millions of people -- billions of people in the world go barefoot every day without a bit of problem. As a matter of fact, when you look at some of the studies -- and I think I mentioned some in my filings -- they're not full evidence, barefoot people have got healthier feet, they strengthen the muscles. There's all sorts of health benefits that come about from being barefoot that do not get benefits --

THE COURT: The library's regulation doesn't prohibit anyone from going barefoot. Indeed, when you leave the library and go onto the sidewalk from the library, you can take your shoes off and walk around the city barefoot as much as you want. If you're going to be in the library for two hours, it's no different than if you're going to play basketball for two hours. During that period, you're going to play basketball in shoes, likely, or if you're going to play tennis, or you are going to engage in any other activities that might require you to wear shoes. When that activity is done, you still can get the kind of exercise, enjoy the kind of healthy feet, et cetera that you believe barefooting permits?

How does this regulation interfere with your right to go barefoot?

MR. NEINAST: For two main reasons: One is because I do think that there is a right to receive speech that the library may not infringe upon without heightened scrutiny. And I also believe that there is a right of personal appearance that they are impinging upon.

THE COURT: All right. The supreme court standard set forth in Spence for symbolic speech is a two-prong test. First, that there was an intent to convey a particularized message; and

Second, that there is a great likelihood, given the surrounding circumstances, that the message would be understood by the majority of those who view it.

Now, it appears to the Court, and I want you to respond to this, Mr. Neinast, that your act of going barefoot does not convey any particularized message. It is simply conduct. You're going barefoot because you believe it strengthens your feet muscles and you enjoy it. It gives you perhaps a sense of freedom, if you will. But it doesn't convey a particularized message. Say, you're wearing a placard if you were demonstrating for some cause, if you were demonstrating in front of the library, for instance, that might send a particularized message.

So how does that in the first place, as a threshold matter, how does your barefooting convey a particularized message?

MR. NEINAST: In a park setting, it does not, particularly. In a library, in other public buildings, I feel that it does. The particularized message is that it is a myth that it is illegal to go barefooting, and I presented some of the folks that believe it to be a myth. It is particularized in that exact sense. The message I believe is conveyed that people can understand it.

How can we tell -- when somebody is burning a flag, how can you tell whether the message is being conveyed? Well, part of it is the surroundings.

THE COURT: You look at the social situation. I lived through the 60s -- I'm that old -- and when people were engaging in flag burning and the like, I think that in the context of the time, people understood it. When people were protesting having to ride in the back of the bus under the circumstances that then and there existed in Selma, Alabama, people understood it. But when you go barefoot in the public library, how does that convey a message in the circumstances?

When I was in college, people would walk around without shoes on but just with socks, because they had been in the library for a long time and, you know, all of us didn't wear earth shoes so our feet might have been hurting. But that didn't convey a particularized message.

What particularized message do you believe that it would convey if you were seen in the library down here on I believe it's Grant Street without shoes on?

MR. NEINAST: It conveys that it's perfectly reasonable to go barefoot in public buildings.

THE COURT: Isn't that, though, an individual message; it's reasonable for you, or that's something that you enjoy?

MR. NEINAST: And that other people -- and that I think other people would like to do so but are put off by the myths about it.

The other way -- how do we know that the flag burning message is getting through? By looking at the reactions of the people around it. Even if everybody doesn't react, you do get reactions from some people. When I go barefoot in these sort of situations, for instance, the United States Capitol building, I had people reacting to that. They were getting the message. So I think that it pretty well shows that the message is getting conveyed by my going barefoot just by looking at the reactions of the people around it.

THE COURT: Let's move on to your argument regarding personal appearance. In Kreimer-- I'm sure you're familiar with Kreimer.

MR. NEINAST: Yes.

THE COURT: In Kreimer, a library policy that prohibited barefoot patrons as well as those with I think offensive body hygiene were prohibited from using library facilities. And that was upheld because it was found that the regulation helped to maintain a sanitary and attractive condition. The personal appearance notion was pretty much rejected and the restriction was viewed in the context of rational basis review.

Can you tell me why this Court should not follow the Kreimer case here since they are somewhat akin?

MR. NEINAST: I'm not sure that's exactly what Kreimer said, at least in my opinion.

THE COURT: All right.

MR. NEINAST: Let's look at the two pieces. One piece was the odor and offensiveness, the offensive odor. That I'm pretty sure was examined under heightened scrutiny. Because Kreimer, while smelling, was still using the library for its intended purpose. Okay. This did, however, satisfy a significant governmental interest because Kreimer's odor prevented all the other library users from using the library to its fullest. That's how that was analyzed.

The shoe rule was never analyzed at all.

THE COURT: That's true.

MR. NEINAST: While the Morristown library had the shoe rule, Kreimer never went barefoot, so the issue was never really before the Court. All that really happened was after the Judge -- Judge Sarokin I believe it was -- issued his initial order, this was at the district level, issued his initial order, he realized that he had -- at least it looked to me like what he had done was he had ruled too far, more than what was before him, so then he just corrected it.

The circuit court in its analysis of that did not bring up the shoe regulation as something that would necessarily withhold scrutiny. But, instead, as an example where you could have regulations -- it was supporting the odor thing. You may have regulations that --

THE COURT: It implied it.

MR. NEINAST: -- that affect access even under heightened scrutiny. The examples that they went on and talked about were, well, if you put a four-week limit on checking out books, that's restricting somebody's right to receive that speech. But it serves the heightened scrutiny legitimate -- I'm sorry -- significant governmental interest of making the materials available to a much larger class.

So I don't think you would be going against Kreimer in the least if you were to go with me here.

THE COURT: Do you have any other points that you wish to make at this time, Mr. Neinast?

MR. NEINAST: If I could, I'd like to talk a little about the standard for summary judgment under Street v. Bradford. Regarding the library's motion, as far as I'm concerned, an essential element of their whole argument is whether there is a safety issue. And I thought I demonstrated the library's speculation of danger was just that: speculation.

As a result, nothing more needs to be said. The evidence must be interpreted in my favor.

Regarding their governmental interests that they have come up with, safety and fiscal integrity, these interests are pretextual. They have misconstrued the scope of the governmental interests that they advanced and as far as I'm concerned, there are no valid governmental interests.

We already talked a little bit about health and safety. It takes more than just a scintilla of pointing -- could they allow hard hats in the library because somebody reaching up could drop a book on their head? There's a small, slight chance of injury doing anything. I would hope the government requires more than that.

Their incident reports showed no danger to special to barefeet. In fact, most of the liquid on the floor is much more dangerous to people wearing shoes because they don't know they could slip on it.

They mention broken glass. It's pretty much a myth that feet are particularly fragile when it comes to broken glass. I was just visiting my mother to help her out in Florida a couple weeks ago, came back and I stepped on a broken bottle. Nothing happened; the bottle broke further. There are circus tricks where people walk on broken glass. Yes, you could cut yourself on it; yes, you could get a paper cut.

Regarding their other interest: fiscal integrity, the interest is fiscal integrity, not some possible fiscal effect. When you look at the cases cited, fiscal integrity refers to who gets government benefits or not and how to allocate, the examples being Social Security benefits to this class or that class, insurance subrogation, whether food stamps can be paid to striking workers or not. Even in the municipal cases that they cited, was where the garbage collection went here or there. They have covered well known and expected expenses.

A comparable example for the library case might be if they decided which counties they wanted to serve, or if they decided they had to shut down a branch location for instance. That's what's comparable. But none of the cases use fiscal integrity in the way that they are talking about.

They talk about possibly getting sued. Anybody can get can get sued for any reason. They might claim that this is one of those. But they're insured. The library has insurance. That came out in the discovery. Their insurance company has no shoe regulation. So any claims like that would be paid by the insurance company.

Ohio has the doctrine of primary assumption of the risk. As Siglow v. Smart says: A person who reasonably chooses to proceed at the face of a known risk is deemed to have relieved the store of any duty to protect him or her.

And in fact the library patron is probably not even a business invitee, hence there's not financial relationship, or a licensee, which has an even lower duty that the duty of ordinary care. They just have to refrain from wanton and willful conduct.

THE COURT: I understand your position. Thank you, Mr. Neinast.

Any rebuttal, Ms. Dane?

MS. DANE: Not unless your Honor has questions.

THE COURT: I have no questions.

I am going to take this matter under advisement and will issue an opinion shortly. I will tell you, however, Mr. Neinast, the Court is inclined to grant the motion of the defendant because I believe that this matter is subject to rational review basis. I believe that there is further a rational basis for the enactment of the policy. I do not accept, based on the record before me, the contention that people who go barefoot constitute a suspect classification that should be analyzed using a strict scrutiny analysis.

And a matter that no one really go to was whether there is qualified immunity. And I believe that there is, especially in light of the opinion that previously had been provided to library personnel by their counsel as to whether the regulations were valid.

So I don't want any further briefing on it. When I am fairly convinced of the matter, I announce my decisions from the bench. I only indicate that that is my inclination because I am going to take the opportunity to review the transcript of the arguments. Unless there is something in that transcript that I did not hear, did not hear clearly during the oral argument, the Court is going to grant the motion of the defendants for the reasons set forth. But the Court will set forth its complete rationale in a written opinion which should be forthcoming in the next three weeks.

Thank you very much. Court is adjourned.

(Adjournment at 10:40.)





CERTIFICATE

I certify that the foregoing is a true and correct record of the proceedings in the above-entitled matter, heard before the Honorable Algenon L. Marbley, United States District Judge, sitting at Columbus, Ohio, on February 22, 2002.




Joan E. Koenig
Official Federal Court Reporter