the national law journal

no smut at work, please

15 september 2003

by gary young and staff reporter - © alm properties, inc. 2003

minn. librarians settle with officials.

are sexual harassment law and the first amendment on a collision course?� if so, which one will give way?

a federal lawsuit that ended in a settlement last month poses those questions in a particularly sensational fashion.

on aug. 15, the minneapolis public library announced that it had agreed to pay $435,000 to 12 employees-lead plaintiff wendy adamson, five other librarians, five aides and a page-who accused the library administration of subjecting them to a hostile work environment by leaving them exposed to pornography.

on first amendment grounds, library officials refused to intervene when patrons used library internet stations to display sexually explicit material.

adamson and her colleagues (11 of the 12 were women) claimed not only that they were exposed to objectionable material, but that the administration's laissez-faire attitude led to overt acts of harassment, such as catcalls, masturbation, physical threats and stalking by patrons.

the work environment greatly improved in 2000, when the administration finally reacted to their equal employment opportunity commission (eeoc) complaint, the employees said.� but they pursued litigation in minneapolis federal court for compensation for three years of suffering, among other reasons.� the settlement brought adamson v. minneapolis public library, no. 03-2521, to a close.

some experts see the settlement as the victory of a common-sense interpretation of the first amendment rights of library patrons.� others worry that it inches the legal system further along a slippery slope that will one day lead to the outright triumph of workplace rights over the first amendment.

first of its kind

there has been wide speculation that employers may face liability if they fail to stanch offensive material injected into the workplace by third parties using the internet, such as pornography spammers.� the minneapolis case appears to be the first in which an employer has actually paid out.

robert s. halagan, the buffalo, minn., solo practitioner who represented the 12 plaintiffs, said that the decision is the first of its kind of which he's aware.

still, he dismissed the idea that he's set a precedent with far-reaching implications.� "you won't see another case like it," he said, because other libraries have been willing to place reasonable restrictions on internet use by patrons.

law professor robert m. o'neil, who directs the university of virginia's thomas jefferson center for the protection of free expression, agreed with halagan on that point.� he said that the issue of whether a library can put restrictions on its patrons' choice of internet material has largely been rendered moot by the u.s. supreme court's june decision in u.s. v. american library ass'n inc., no. 02-361.

in that case, the court upheld the children's internet protection act, a 2000 law that requires libraries receiving federal funds (virtually all of them, public and private, according to o'neil) to use filtering software to prevent children from being exposed to pornography on the internet.

the law allows libraries to disable such software when adults want to access a blocked site "for bona fide research or other lawful purposes."

writing for a four-member plurality, with which two justices concurred, chief justice william h. rehnquist wrote, "a library's need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the internet than when it collects material from any other source."

o'neil conceded that material considered offensive on racial or religious grounds can also give rise to hostile work environment claims; the internet protection act decision might not be dispositive in those cases, he added, since such material is less likely to be deemed harmful to children than pornography.

even so, o'neil said, "this kind of conflict is unlikely to arise again." he said that if such a complaint were filed in the future, most employers would take steps to remedy the situation.

"it's not censorship for a librarian to tap a patron on the shoulder, tell him that what he's viewing offends other patrons, and ask him to use a corner terminal," he said.

eugene volokh, a university of california at los angeles law professor currently visiting harvard university, is not so sanguine about the impact of the minneapolis settlement.

it's not that he thinks librarians should have no say in what gets displayed in public areas or that library administrations should be prevented from placing restrictions on what their patrons view.

what he finds troubling here is that it was "the threat of federal enforcement" that brought the library around to settlement.� he worries that publicity from this settlement will lead other libraries to impose restrictions on internet access, not because it makes good management sense, but because of that threat.� "the federal government is pressuring the nation to adopt speech codes," he said.

volokh argued that the danger of sexual harassment law trumping the first amendment is not limited to public libraries, since private employers are also liable if they create or tolerate a hostile work environment.� finally, the danger is not restricted to libraries, since "every place is someone's workplace, whether it's a park, a library or an art museum," he said.

[the remainder of this article has been removed in a good faith effort to comply with the fair use section 107 of copyright law, but i promise the rest of the article is just as juicy, e.g., "feminist scholar catharine mackinnon, a law professor at the university of michigan, wrote in an e-mail message, 'the first amendment does not protect sexual harassment at work in any form, including through pornography.  the pornography that came into the librarians' workplace via the internet created a hostile environment for their work because they were women.  this is sex-based abuse, not protected freedom."]

young's e-mail address is gyoung@nlj.com.

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