Do you really want to be a forum?

Author:Hitchcock, Leonard A.

Consider a Park

In a small, mid-western town, there's a park that's been there as long as anyone can remember. It's a typical city park, open to the general public, with play equipment for children, trees and grass and benches along curving paths. At one end of the park, where several paths converge on an open, graveled space, a sign informs the stroller that this area is called "The Rostrum." The sign then explains, somewhat condescendingly, that, in Roman cities, long ago, the rostrum was a speakers' stand in the city's Forum, and that the surrounding open space in this park is, itself, just such a forum, a place where citizens are invited to exchange views with one another without hindrance, in complete freedom.

As is often the case with signs, this one doesn't tell the entire truth. To begin with, the park is encircled by a fence with gates and, for reasons of public safety, is only open during the day. Naturally, public speaking at any other time is impossible. Furthermore, it turns out that would-be speakers cannot simply go to The Rostrum, step atop their soap boxes, and address the passing crowd. A permit is required. And permits are not issued simply upon request. Quite the contrary; the would-be speaker must appear before a city official whose title is "The Selector." Questions are asked the applicant about his or her background, about his or her qualifications to speak to the subject chosen, about the degree of his or her success in previous public for a appearances, about reviews of past performances. And the speech must even be rehearsed, right there in the Selector's office.

It has never been completely clear how the Selector chooses those who will receive a permit. Sometimes the official judgment seems to be that the speech's subject matter is of little potential interest to the citizenry, sometimes that the rhetorical devices are in poor taste, sometimes that the topics addressed are more than sufficiently dealt with already by the local media. Whatever the reasons, the decisions of the Selector are not open to appeal.

For those speakers who succeed in acquiring a permit, their trouble in doing so is somewhat recompensed by the city's rules regulating the behavior of the park's visitors. A speaker's audience is required to be well behaved. No loud talking, no heckling, no marching with signs, no obstreperous antics of any kind that might distract other members of the audience. Even those whose mere physical presence disturbs the listeners, like vagrants and homeless individuals, may be ushered out of the forum.

If an audience member has strong objections to a speaker, he or she may lodge a protest with the city by filling out a form. To do so satisfactorily, the offended listener must be able: 1) to establish that the speech in question was personally heard in its entirety, 2) to quote exactly those remarks that were felt to be offensive, and 3) to explain, cogently, why what was said ought not to have been publicly spoken. These protests rarely succeed in causing the city to take any action. The Selector, after all, issued a permit on the basis of careful deliberation and is a trained professional, committed to promoting the best interests of the community. The judgment of the Selector usually prevails.

It might seem that, on balance, the rules of the park favor the speaker. But that's not really the case, for any speaker's permit can be withdrawn at any time, at the discretion of the Selector. Gaining the public's ear is a privilege, it would seem, and not a right. Understandably, the public rarely notices when a permit is cancelled. One voice missing from the ongoing babble of the speakers attracts little attention.

Residents of the town have grown accustomed to the park's regulations. They even come to their defense when outsiders, claiming to know about "First Amendment Law," tell them that the Rostrum's rules are egregiously unconstitutional, that they give the city government virtual control of the forum and deny the citizenry its full right to free speech. Over the years, a standard response to such criticism has evolved. A resident now usually answers a critic in words like these: "Look, we value freedom of speech as much as the next town does. Our park rules may be different, but that's because there isn't just one kind of public forum, one single way to honor and celebrate the freedom of speech. We gave a lot of thought to the sort of forum that we wanted, and chose the one that best suited our needs. We call it, for obvious reasons, 'The Library Model.'"

Libraries, the First Amendment, and the Forum

Libraries and the First Amendment are often spoken of together, especially by librarians. In fact, librarians would have us believe that they are among the staunchest supporters of the First Amendment, dedicated to intellectual freedom and the right of all citizens to speak their minds and hear others speak theirs. Publications of the American Library Association, such as the Intellectual Freedom Manual, flourish the text of the Library Bill of Rights and describe it as the document that "serves as the library profession's interpretation of the First Amendment to the United States Constitution." (Intellectual Freedom Manual, xvii) The Library Bill of Rights itself takes a vigorous stance against all those who would censor the content of public discussion and affirms, in its first sentence, "that all libraries are forums for information and ideas." (Intellectual Freedom Manual, 57)

Kreimer v. Morristown

When the topic of the library as a forum arises, reference is usually made to the well-known, Third Court of Appeals decision in Kreimer v. Morristown in 1992. (Kreimer). This ruling, according to the Intellectual Freedom Manual, places "public libraries squarely within the First Amendment realm," and recognizes "that libraries have a unique position in the fulfillment of the First Amendment right to receive information." (269) "Do You Really Want to Be a Forum?" Leonard A. Hitchcock. Library Philosophy and Practice Vol. 8, no. 1 (Fall 2005) 3

To review briefly the case, Mr. Kreimer was a homeless man who had been ejected from the Morristown Public Library because his behavior and habits of personal hygiene were judged to violate library regulations for patron behavior. He sued the library, claiming that his First Amendment rights had been denied. In the Kreimer case, the Court applied the legal doctrine of the "public forum" (1) to libraries, and declared that they were "designated" public for a. We should note that, as the case made its way through the Court of Appeals, the library argued that the First Amendment had no relevance to the suit. Only if there had been an incident of censorship, the library insisted, would the First Amendment have come into play. The court saw things differently, expatiating upon the "right to access to information" that was implied by the First Amendment (2) (a right that the library community came to celebrate as the "freedom to read"). In the end, the court decided that the library's regulations were, in fact, constitutional and that Mr. Kreimer's rights had not been violated.

To bring public forum analysis to bear on the Kreimer case, the court drew upon Supreme Court decisions in which a...

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