April 14, 2004

One of the happy aspects of covering the Supreme Court is that a reporter never knows what will turn up in the daily crop of petitions for review. Most of the petitions range in dullness from the merely soporific to the truly stupefying, but now and then a case comes along that brightens the jaded eye. For example, Case No. 03-1263, Neinast v. Board of Trustees.

This is an appeal sought last month by Robert A. Neinast of Pickerington, Ohio, a growing community just east of Columbus. By profession, Neinast is a retired software engineer. By avocation, he is a naturist, which is to say, a nudist. He is Ohio representative for a national naturist society and writes occasionally for the Ohio Nude Digest.

Call him idiosyncratic. He goes barefoot nearly all the time. He goes barefoot to Wal-Mart and barefoot to his local drugstore. On visits to Washington he goes barefoot to the Smithsonian Institution. In 1997 he began going barefoot to the Columbus Metropolitan Library and its Reynoldsburg branch. For a while, nothing much happened. He was occasionally frowned upon or asked to leave. Tension mounted. By 2000 and early 2001 he was regularly going barefoot to the libraries, and the librarians were regularly throwing him out.

In April 2001, Neinast sued the library trustees. He charged that by denying him access to available research material, the librarians violated his First Amendment right to receive information from a public source. The U.S. District Court granted summary judgment in the library's favor. Last October a three-judge panel of the 6th Circuit unanimously affirmed. Now he's asking the high court to listen to his appeal.

The petitioner makes a persuasive case. A public library is surely at least a limited public forum. Accordingly, limitations on access to its resources must have a rational basis. Such limitations may properly seek to prevent future harms, but these potential harms "must be real, not merely conjectural." There must be some plausible evidence that a proposed limitation will alleviate these harms in a direct and material way.

The library's response to this line of argument is remarkably flimsy. There was some testimony that "feces, semen, blood and broken glass" occasionally had been observed on library floors. In its effort to document incidents of hazard "to barefoot patrons," the library specifically cited an incident in which a patron hurt himself on a staple in a carpet. As Neinast observes, the patron was a child lying on a carpeted floor during a story-reading session. The awful gash was not on his foot. It was a scratch on his arm, quickly covered by a Band-Aid. Quelle horreur!

In her opinion affirming the District court, Circuit Judge Julia Smith Gibbons relied in large part upon an opinion of the 3rd Circuit in 1992. This was a case in which one Richard R. Kreimer, a homeless indigent, lost his suit against the public library in Morristown, N.J. Like Neinast in Columbus, Kreimer had been repeatedly expelled from the reading room. But the circumstances were completely different. Kreimer often engaged in "offensive and disruptive behavior, stared at patrons, and talked loudly to himself and others." His body odor "was often so offensive that it prevented library patrons from using certain areas of the library." No such conduct was ever imputed to Neinast. His bare feet were simply "inappropriate."

In the Ohio case now pending, Judge Gibbons also relied upon the library's defense of prudent management. The barefoot rule in Columbus has two purposes. It not only protects barefoot patrons from their own esoteric whims, it also serves "the economic well-being of the library by averting tort claims and litigation expenses stemming from potential claims made by barefoot patrons who could have suffered injuries that shoes could have prevented." These are conjectural concerns, in my view, but the court held that they "qualify as significant governmental interests."

Well, maybe so. Neinast has trouble convincing me that the right to go barefoot in public buildings is a fundamental right in a free society. Government does indeed have some power to prevent people from harming themselves, e.g., government may require helmets for motorcycle riders and poison labels for garden sprays. Perhaps Columbus may properly bar bare feet in a reading room as dangerous for naturists and distracting to scholars. But so are short skirts, bare legs, and rhinestone rings in a co-ed's navel. Metaphorically, we may ask, Where in law do you draw a hem line?

(Letters to Mr. Kilpatrick should be sent in care of this newspaper, or by e-mail to