United States Court of Appeals,
Third Circuit.
Richard R. KREIMER
v.
BUREAU OF POLICE FOR the TOWN OF MORRISTOWN, Jay White, former chief of police,
Morristown; J. Rota, D. McKim, D. Widdas, D. Bowerbank, R. Gibbons, Kevin
Mulholland, police officers, Morristown, David Manahan, former mayor of
Morristown, Norman Bloch, mayor of Morristown, Terrence J. Reidy, Morristown
business administrator, Edward A. Taratko, Morris Township business
administrator, Barbara Harris, mayor of Morris Township, Joint Free Public
Library of Morristown and Morris Township: the library Board of Trustees,
Elaine Weil, president of the trustees, Barbara Rice, library director, B.
Riesenfeld, Elaine Kissil, Donna Cole, Cathy Prince, Ann McDade, Lois Demsky,
library employees, all individually and in their official capacities, Capt.
Walter Gensch.
The JOINT FREE PUBLIC LIBRARY OF MORRISTOWN AND MORRIS TOWNSHIP Defendant-Third
Party Plaintiff,
v.
TRAVELERS INSURANCE COMPANY, and Travelers Indemnity Company, Third Party
The Joint Free Public Library of Morristown and Morris Township, Appellant.
No. 91-5501.
Argued Feb. 14, 1992.
Decided March 23, 1992.
Rehearing Denied April 21, 1992.
Homeless man challenged constitutionality of city library rules regarding use of library and behavior in it. The United States District Court for the District of New Jersey, H. Lee Sarokin, J., 765 F.Supp. 181, found rules to be partially unconstitutional. Appeal was taken. The Court of Appeals, Greenberg, Circuit Judge, held that: (1) library was limited public forum; (2) rules did not violate First Amendment or due process or equal protection clauses; and (3) rules were not void for vagueness.
Reversed and remanded.
West Headnotes
[1] Federal Courts
766
Review of grant of summary judgment is plenary.
[2] Federal Courts
935.1
(Formerly 170Bk935)
Court of Appeals is free to enter order directing summary judgment in favor of appellant when appeal from summary judgment concerns only issues of law.
[3] Constitutional Law
90(1)
[3] Constitutional Law
90.1(4)
First Amendment encompasses positive right of public access to information and ideas, including right to some level of access to public library. U.S.C.A. Const.Amend. 1.
[4] Constitutional Law
90(1)
"Speech" component of First Amendment includes freedom to receive speech. U.S.C.A. Const.Amend. 1.
[5] Constitutional Law
90.1(4)
Public library is not "traditional public forum" for purposes of First Amendment; library patron cannot be permitted to engage in most traditional First Amendment activities such as giving speeches or engaging in any other conduct that would disrupt quiet and peaceful library environment. U.S.C.A. Const.Amend. 1.
[6] Constitutional Law
90.1(4)
Public library was "limited public forum" for purposes of First Amendment; government intent to open library for expressive activity was established by election authorizing public library and purpose of library rules as allowing use to maximum extent possible, and library rules clarified that library was open to public only for specified purposes of reading, studying, and using materials. U.S.C.A. Const.Amend. 1.
[7] Constitutional Law
90.1(4)
Designated public forum need not be open to public at large, but may be open to specific class of people for discussion of certain subject matter. U.S.C.A. Const.Amend. 1.
[8] Constitutional Law
90.1(4)
Not all First Amendment activities need to be permitted in designated public forum. U.S.C.A. Const.Amend. 1.
[9] Constitutional Law
90.1(4)
"Limited public forum" is created when government opens nonpublic forum, but limits expressive activity to certain kinds of speakers or to discussion of certain subjects. U.S.C.A. Const.Amend. 1.
[10] Constitutional Law
90.1(4)
In case of limited public forum, constitutional protection is afforded only to expressive activity of genre similar to those that government has admitted to the limited forum. U.S.C.A. Const.Amend. 1.
[11] Constitutional Law
90.1(4)
As limited public forum, public library was obligated only to permit public to exercise rights consistent with nature of library and consistent with government's intent in designating library as public forum; other activities did not need to be tolerated. U.S.C.A. Const.Amend. 1.
[12] Constitutional Law
90.1(4)
Time, place, and manner regulations that limit permitted First Amendment activities within designated public forum are constitutional only if they are narrowly tailored to serve significant governmental interest and leave open ample alternative channels for communication of information. U.S.C.A. Const.Amend. 1.
[13] Constitutional Law
90.1(4)
Requiring patrons to read, study, or use library materials in order to remain in public library was reasonable means to foster quiet and orderly atmosphere and, therefore, complied with First Amendment. U.S.C.A. Const.Amend. 1.
[14] Constitutional Law
90.1(4)
Public library imposed reasonable limitation on use and did not violate the First Amendment by its rule that required patrons to respect the rights of other patrons and prohibited them from harassing or annoying others through noisy or boisterous activities, staring or following another with intent to annoy, or behaving in manner which reasonably could be expected to disturb other patrons; prohibiting destructive behavior was perhaps the clearest and most direct way to achieve maximum library use. U.S.C.A. Const.Amend. 1.
[15] Constitutional Law
90(1)
Regardless of nature of forum, First Amendment does not prohibit regulation of nonexpressive activity unless regulation imposes disproportionate burden upon those engaged in protected First Amendment activities. U.S.C.A. Const.Amend. 1.
[16] Constitutional Law
90.1(4)
Public library's time, place, and manner restrictions were not limited to activity that actually and materially interfered with peaceful and orderly management of public space; rather, it was reasonable for library board to forecast that actual disruption would occur since library log book contained multitude of references detailing alleged disruption occurring when certain patrons chose not to use library materials while they remained in library. U.S.C.A. Const.Amend. 1.
[17] Constitutional Law
90.1(4)
Public library may regulate conduct protected under First Amendment (limiting number of books borrowed or limiting time of borrowing), even though the conduct does not actually disrupt the library. U.S.C.A. Const.Amend. 1.
[18] Constitutional Law
90.1(4)
Public library rule requiring patrons to leave building if bodily hygiene was offensive so as to constitute nuisance to other persons was narrowly tailored to serve significant government interest, left open alternative channels of communication, and, therefore, did not violate First Amendment, even if rule disproportionately affected the homeless; rule prohibited unreasonable interference with other patrons' use and enjoyment of library and promoted library's interest in maintaining facilities in sanitary and attractive condition. U.S.C.A. Const.Amend. 1.
[19] Constitutional Law
90.1(4)
"Narrowly tailored" requirement limiting permitted First Amendment activities within designated public forum does not signify that challenged rule must be least restrictive or least intrusive means of furthering government's interest; requirement is satisfied so long as regulation promotes substantial government interest that would be achieved less effectively absent the regulation. U.S.C.A. Const.Amend. 1.
[20] Constitutional Law
90.1(4)
Disproportionate affect on the homeless with limited access to bathing facilities is irrelevant to First Amendment facial challenge to public library rule requiring patrons to leave building if their bodily hygiene was offensive so as to constitute nuisance to other persons. U.S.C.A. Const.Amend. 1.
[21] Constitutional Law
42.2(1)
"Overbreadth doctrine," exception to conventional standing requirements, provides that individual whose own conduct may be prohibited, may challenge given regulation because it also threatens others not before the court--those who desire to engage in legally protected expression, but who may refrain from doing so, rather than risk prosecution or undertake to have law declared partially invalid. U.S.C.A. Const.Amend. 1.
[22] Constitutional Law
90.1(4)
Overbreadth doctrine was inapplicable to First Amendment challenge to public library rules requiring patrons to leave building unless they read, studied, or used library materials, and prohibiting patrons from harassing or annoying others through noisy or boisterous activities, staring or following another with intent to annoy, or behaving in manner which reasonably could be expected to disturb other patrons; the rules did not reach substantial amount of constitutionally protected activity, even though rules could conceivably require silent protestor to leave. U.S.C.A. Const.Amend. 1.
[23] Constitutional Law
82(4)
Meritorious First Amendment vagueness challenge will annul unclear law that chills protected First Amendment activities and will succeed when party does not have actual notice of what activity statute prohibits. U.S.C.A. Const.Amend. 1.
[24] Constitutional Law
82(4)
Vagueness doctrine in First Amendment setting seeks to insure fair and nondiscriminatory application of the laws and finds repulsive laws that endow officials with undue discretion to determine whether given activity contravenes the law's mandates. U.S.C.A. Const.Amend. 1.
[25] Constitutional Law
90.1(4)
Vagueness doctrine in First Amendment setting was applicable to challenge to public library's rules, even though rules were civil. U.S.C.A. Const.Amend. 1.
[26] Constitutional Law
82(4)
Greater tolerance must be accorded civil enactments in determining vagueness in First Amendment setting. U.S.C.A. Const.Amend. 1.
[27] Constitutional Law
90.1(4)
[27] Municipal Corporations
717
Public library rule requiring patrons to be reading, studying, or using library materials was not vague under First Amendment, even though library officials retained discretion to determine who was making use of library materials; library would not immediately expel patron for violating rule, but would inform patron that he or she had to use materials to remain. U.S.C.A. Const.Amend. 1.
[28] Constitutional Law
90.1(4)
First Amendment vagueness doctrine was not violated by public library rule that prohibited patrons from harassing or annoying others through noisy or boisterous activities, staring or following another with intent to annoy, or behaving in manner that could reasonably be expected to disturb other patrons. U.S.C.A. Const.Amend. 1.
[29] Constitutional Law
90.1(4)
First Amendment vagueness doctrine was not violated by public library rule requiring patrons to leave if bodily hygiene was offensive so as to constitute nuisance to others; nuisance determination involved objective reasonableness test, not annoyance test. U.S.C.A. Const.Amend. 1.
[30] Constitutional Law
291.6
(Formerly 92k291.5)
[30] Municipal Corporations
717
Due process clause was not violated by public library rule requiring patrons to leave building if bodily hygiene was offensive so as to constitute nuisance to others, even though rule was not restricted to instances of actual, material disruptions. U.S.C.A. Const.Amends. 5, 14.
[31] Constitutional Law
234.6
(Formerly 92k234.5)
[31] Municipal Corporations
717
Equal protection clause was not violated by public library rules requiring patrons to be reading, studying, or using library materials, to respect rights of others, to avoid noisy or boisterous activities or staring or following with intent to annoy, and to leave building if bodily hygiene is offensive so as to constitute nuisance to others; library enacted rules to provide fair method to expel any disruptive patron and to achieve optimum library use. U.S.C.A. Const.Amend. 14.
[32] Constitutional Law
234.6
(Formerly 92k234.5)
Homeless were not suspect class, and, thus, public library's rules regarding use of library and conduct in it needed only to survive lowest standard of review for equal protection purposes. U.S.C.A. Const.Amend. 14.
[33] Constitutional Law
90.1(4)
[33] Municipal Corporations
717
New Jersey's constitutional right of free speech was not violated by public library rules that required patrons to be reading, studying, or using library materials, that prohibited them from harassing or annoying others through noisy or boisterous activities, staring or following with intent to annoy, or behaving in manner which reasonably could be expected to disturb others, and that required patrons to leave if bodily hygiene was offensive so as to constitute nuisance.
*1245 Clifford W. Starrett, Sheilah O'Halloran, James P. Wyse (argued), Wendy L. Wiebalk, Schenck, Price, Smith & King, Morristown, N.J., for appellant.
Frank Askin (argued), Rutgers School of Law, Constitutional Litigation Clinic, Newark, N.J., Bruce S. Rosen (argued), Andrew E. Anselmi, Lowenstein, Sandler, Kohl, Fisher & Boylan, Roseland, N.J., for appellee.
Eric B. Schnurer, Philadelphia, Pa., John A. Powell, American Civil Liberties Union Foundation, New York City for amicus curiae American Civil Liberties Union and American Civil Liberties Union of New Jersey.
Bruce J. Ennis, David W. Ogden, Theresa Chmara, Jenner & Block, Washington, D.C., for amicus curiae Freedom to Read Foundation.
Stephen S. Weinstein, Valerie L. Riley, Morristown, N.J., for amicus curiae New Jersey Library Ass'n.
Joseph L. Yannotti, Asst. Atty. Gen., Benjamin Clarke, Deputy Atty. Gen., Robert J. Del Tufo, Atty. Gen. of N.J., for the Attorney General, amicus curiae.
David G. Sciarra, Director, Division of Public Interest Advocacy, Isabel McGinty, Asst. Deputy Public Advocate, Wilfredo Caraballo, Public Advocate of New Jersey, for the Public Advocate, amicus curiae.
*1246 OPINION OF THE COURT
GREENBERG, Circuit Judge.
This case compels us to resolve questions concerning the breadth of a public library's authority to promulgate and enforce regulations governing the use of its facilities.
The appellee, Richard R. Kreimer, is a homeless man who resides in various outdoor public spaces in Morristown, New Jersey. Kreimer, who was a frequent patron of the Joint Free Public Library of Morristown and Morris Township ("the Library"), was expelled from the Library on at least five occasions for violating its rules governing patron conduct. In response, Kreimer commenced this action in the United States District Court for the District of New Jersey against the Library and others, alleging in his complaint, as ultimately amended, that the rules are facially invalid under the First Amendment, made applicable to the states by the Fourteenth Amendment, as well as under the due process and equal protection clauses of the Fourteenth Amendment, and similar provisions of the New Jersey Constitution. On cross-motions for summary judgment, the district court accepted Kreimer's arguments and issued an interlocutory injunction prohibiting the enforcement of several of the Library's rules. Kreimer v. Bureau of Police for the Town of Morristown, 765 F.Supp. 181 (D.N.J.1991). The Library appeals.
The district court's opinion unduly restricts the Library's authority to circumscribe admission to and expulsion from its facility and gives short shrift to its significant interest in achieving the optimum and safest use of its facilities. Indeed, we find that the rules are reasonable "manner" restrictions on the patrons' constitutional right to receive information. We also disagree with the district court's analysis and application of the doctrines of vagueness and overbreadth and further find fault with the court's determination that the Library intended to restrict Kreimer's access to it in violation of the Fourteenth Amendment. In sum, we are satisfied that the rules in issue pass muster under well-established constitutional principles governing facial attacks. Accordingly, we will reverse.
I.
BACKGROUND
The facts of this case as germane on this facial challenge are essentially undisputed. Pursuant to N.J.Stat.Ann. § 40:54-29.3 (West 1991), Morristown and Morris Township elected to establish and support the Library. [FN1] Although N.J.Stat.Ann. § 40:54-9 (West 1991) empowers the Board of Trustees of the Library ("the Board") [FN2] to enact regulations designed to "carry out the purposes of the joint library," the Board did not promulgate any written rules or regulations governing the use of the Library until May 1989. As stated by the Library's former director, Barbara A. Rice, prior to May 1989, the Library staff followed unwritten rules and procedures with the intent:
FN1. That section provides that "[a]ny two or more municipalities may unite in the support, maintenance and control of a joint free public library for the use and benefit of the residents of such municipalities."
FN2. N.J.Stat.Ann. § 40:54-9 (West 1991) provides that the Board is to be comprised of:
seven to nine members, one of whom shall be the mayor or other chief executive officer of the municipality, one of the local superintendents of schools, or in the event that there be no such official, the principal with power of supervision over the local school system, or in case such municipality shall have none of the school officials hereinbefore mentioned, then the president of the board of education, and from five to seven citizens to be appointed by the mayor or chief executive, at least four of who [sic] shall be residents of the municipality.
to allow library patrons to use the library's facilities to the maximum extent possible. The library staff ... as trained professional librarians, understood from ... professional training ... experience, and ... common sense that anyone exhibiting behavior which interfered with another patron's reasonable use of library facilities, or who interfered with the work of the library staff, should be asked to stop.
App. at 89.
Kreimer frequently visited the Library where he claims to have enjoyed reading *1247 newspapers, magazines or books, or occasionally sitting in silent contemplation. In the Library's view, however, Kreimer's presence was not so peaceful. The Library contends that he often exhibited offensive and disruptive behavior, including staring at and following patrons and talking loudly to himself and others. It also claims that Kreimer's odor was often so offensive that it prevented the Library patrons from using certain areas of the Library and prohibited Library employees from performing their jobs. [FN3]
FN3. We, of course, do not make factual findings on this appeal concerning Kreimer's conduct.
Rice, the Director of the Library from June 1, 1986, to December 19, 1990, held monthly staff meetings to discuss how to handle more effectively what she termed "problem behavior" at the Library. This behavior included theft of property, smoking, use of drugs and alcohol, disruptively loud behavior, intimidation of patrons through staring and following them, and exuding of repulsive odors. In 1987, Rice determined that the Library should maintain written records of recurrent problem behavior. Accordingly, it began to keep a logbook detailing the disciplinary problems reported to or observed by the Library staff or patrons. As the Library's brief notes, the logbook reflects that "[b]oth before and after adoption of the written Patron Policy, the Library has been plagued by incidents involving inappropriate conduct on the part of some library patrons." Most of the entries excerpted by the Library in its brief describe Kreimer's alleged behavior: "1/14/89--Kreimer's odor prevents staff member from completing copying task; 3/30/89--Kreimer spent 90 minutes--twice--staring at reference librarians; 6/15/89--[Library Director] called police after Kreimer was belligerent and hostile towards her; 7/21/89-- Patron ... followed by Kreimer after leaving Library...."
In May 1989, the Board determined that it would enact written rules expressly prohibiting certain behavior in the Library, and authorizing the Library Director to expel any patron who violated them. The stated purpose of these rules, entitled "Patron Conduct," was to "allow all patrons of the joint free public library of Morristown and Morris Township to use its facilities to the maximum extent possible during its regularly scheduled hours." The rules included the following provisions:
1. Patrons shall be engaged in normal activities associated with the use of a public library while in the building. Patrons not engaged in reading, studying, or using library materials may be asked to leave the building. Loitering will not be tolerated.
....
5. Patrons shall respect the rights of other patrons and shall not annoy others through noisy or boisterous activities, by unnecessary staring, by following another person through the building, by playing walkmans or other audio equipment so that others can hear it, by singing or talking to oneself or by other behavior which may reasonably result in the disturbance of other persons.
....
9. Patron dress and personal hygiene shall conform to the standard of the community for public places. This shall include the repair or cleanliness of garments.
Any patron not abiding by these or other rules and regulations of the Library, may be asked to leave the Library premises. Library employees shall contact the Morristown Police if deemed advisable.
Any patron who violates the Library rules and regulations may be denied the privilege of access to the Library by the Library Board of Trustees, on recommendation of the Library Director.
App. at 130.
While this set of rules was in effect, the Library expelled Kreimer on at least two occasions for violations of rules 1 and 9.
In response, Kreimer consulted with the American Civil Liberties Union of New Jersey which wrote to the Library on July 5, 1989, asserting that several provisions of this set of rules were unconstitutional. First, the ACLU-NJ stated that "the policy *1248 against loitering is vague and therefore a violation of the Due Process clause of the Fourteenth Amendment as well as a violation of our state constitution." The ACLU-NJ also indicated its view that "the library policy is ... constitutionally infirm in that it encompasses behavior which 'annoys' other patrons." In addition, it found "[e]qually offensive ... section 9 of the policy which mandates that personal dress and hygiene conform to the 'community standards'." Finally, the ACLU-NJ asserted that "[a]llowing library officials, in their own discretion, to ban individuals in the absence of specific guidelines and standards, makes the policy defective for its vagueness."
The Library responded to the ACLU-NJ's concerns in a letter dated July 14, 1989, noting that "access to the Library is a privilege or license granted by the Library to all on condition that the reasonable rules and regulations of the Library are complied with.... In our opinion, the Executive Director of the Library or her authorized representative has the power and the responsibility to revoke the privilege of a patron to use the Library facilities when the rules and regulations are violated, including the power to require the patron to leave the Library premises." However, on July 25, 1989, in an attempt to assuage the ACLU-NJ's concerns, the Board modified provisions 1, 5, and 9, as well as the two unnumbered paragraphs following rule 9, so that they, along with rule 6, read as follows:
1. Patrons shall be engaged in activities associated with the use of a public library while in the building. Patrons not engaged in reading, studying, or using library materials shall be required to leave the building.
....
5. Patrons shall respect the rights of other patrons and shall not harass or annoy others through noisy or boisterous activities, by staring at another person with the intent to annoy that person, by following another person about the building with the intent to annoy that person, by playing audio equipment so that others can hear it, by singing or talking to others or in monologues, or by behaving in a manner which reasonably can be expected to disturb other persons.
6. Patrons shall not interfere with the use of the Library by other patrons, or interfere with Library employees' performance of their duties.
....
9. Patrons shall not be permitted to enter the building without a shirt or other covering of their upper bodies or without shoes or other footwear. Patrons whose bodily hygiene is offensive so as to constitute a nuisance to other persons shall be required to leave the building.
Any patron not abiding by these or other rules and regulations of the library shall be asked to leave the library premises. Library employees shall contact the Morristown Police if deemed advisable.
Any patron who violates the Library rules and regulations shall be denied the privilege of access to the Library by the Library Board of Trustees, on recommendation of the Library Director. Any patron whose privileges have been denied, may have the decision reviewed by the Board of Trustees.