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Library Law: Constitutional and Unconstitutional Patron Appearance and Behavior Policies: A Review
By James W. Fessler and E. Kenneth Friker, Klein, Thorpe and Jenkins, Ltd.
February 27, 2008
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As the weather outside has turned wet and cold, many public libraries have seen an increase in patrons who are simply seeking shelter from the elements. In light of this increased patronage, a review of patron appearance and behavior policies is in order.

U.S. courts have repeatedly described public libraries as “the quintessential locus of the receipt of information.” Kreimer v. Bureau of Police, 958 F.2d 1242; 1255 (3rd Cir. 1992). As such, the right to some level of access to a public library is constitutionally protected under the First Amendment right to receive information. Kreimer, 958 F.2d at 1255. Thus, patron appearance and behavior policies must be carefully written to ensure that they do not unconstitutionally deprive patrons of their First Amendment right to some level of access to public libraries. To that end, this article reviews four Federal cases which addressed the constitutionality of patron appearance and behavior policies as applied to questionable patron appearance and behavior.

First, with regard to patrons who engage in harassing or annoying behavior, the court in Brinkmeier v. City of Freeport, 1993 WL 248201 (N.D. Ill. 1993), declared the library's unwritten patron behavior policy unconstitutional, while the court in Kreimer upheld the library's written patron behavior policy as constitutional.

In Brinkmeier, the library patron was a man who was expelled from the library after giving a female library employee a letter containing offensive material and expressing the man's desire to engage in sexual relations with her. The library's unwritten patron behavior policy provided that persons harassing and/or intimidating other library patrons or library employees may be precluded from using the library.

In declaring the patron behavior policy unconstitutional, the court stated that the unwritten policy was overbroad and lacked reasonable limitations as to the conduct it sought to prevent, the policy failed to place geographical limitations on where the offensive harassment or intimidation could occur, the policy provided no limitations on any preclusion from use of the library, and the policy did not include an informal or formal procedure whereby a person could challenge the denial of access to the library.

On the other hand, in Kreimer, the library patron was a homeless man who was expelled from the library because he stared at and followed other patrons and talked loudly not only to himself, but to others. The library's written patron behavior policy provided:

“Patrons shall respect the rights of others 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 loudly to others in monologues, or by behaving in a manner which reasonably can be expected to disturb other patrons.”

In upholding the patron behavior policy, the court stated that the policy prohibited behavior that was disruptive in a library setting, that the clearest and most direct way to achieve library use is to prohibit disruptive behavior and that the policy was fundamentally reasonable.

Second, with regard to issues involving patron hygiene and appearance, the court in Armstrong v. District of Columbia Public Library, 154 F.Supp. 2d 67 (D.D.C. 2001), declared the library's written patron hygiene and appearance policy unconstitutional while the courts in Kreimer and Neinast v. Board of Trustees of the Columbus Metropolitan Library, 346 F.3d 585 (6 th Cir. 2003), upheld the library's written patron hygiene and appearance policies as constitutional.

In Armstrong, the library patron was a homeless man who was barred from the library because of his objectionable appearance. The library's written hygiene and appearance policy allowed library personnel to ban patrons whose

“conduct or personal condition [is] objectionable to other persons using the Library's facilities or which interfere with the orderly provision of library service” including:

“objectionable appearance (barefooted, bare-chested, body odor, filthy clothing, etc.)”

In declaring the patron hygiene and appearance policy unconstitutional, the court stated that the policy was both vague and overbroad because the term “objectionable appearance” was unclear and ambiguous, it allowed for a highly subjective application as opposed to an objective application, it allowed library employees to exercise unfettered discretion in applying the policy, and it failed to give library patrons notice of what specifically was prohibited by the policy.

On the other hand, in Kreimer, the library patron was a homeless man who was expelled from the library because his odor was so offensive that it prevented library patrons and staff from using and working in certain areas of the library, among other things. The library's hygiene and appearance policy provided:

“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.”

In upholding the library's hygiene and appearance policy, the court stated that public libraries have a significant governmental interest in ensuring that all patrons exercise their First Amendment right to receive information by using library facilities to the maximum extent possible during regular business hours, that this significant governmental interest is served by a policy requiring non-offensive bodily hygiene so that one patron does not unreasonably interfere with another patron's use and enjoyment of the library, that this policy also promotes a library's interest in maintaining sanitary and attractive facilities, and that this policy does not permanently bar a patron from re-entering but permits all patrons who comply with the policy to use the library.

Likewise, in Neinast, the library patron was a barefooted man who was evicted from the library for violating the hygiene and appearance policy requiring that shoes be worn by all patrons. The library's hygiene and appearance policy provided that “patrons not wearing shoes be given a warning and be asked to leave [the] premises to correct the problem.”

In upholding the library's policy, the court stated that public libraries have a significant governmental interest in protecting not only the health, safety and welfare of patrons by requiring them to wear footwear so as to avoid injury to bare feet, but also to protect the economic well being of the library by avoiding tort claims and litigation expenses stemming from potential personal injury claims made by barefoot patrons who injure their feet.

Finally, with regard to patron loitering, the court in Kreimer held the library's loitering policy constitutional. In Kreimer, the library patron was a homeless man who was expelled from the library for loitering, among other things. The library's loitering policy provided:

“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.”

In upholding the loitering policy, the court stated that the purpose of the policy was to foster a quiet and orderly atmosphere conducive to every patron's exercise of their constitutional right to receive information, that requiring patrons to use the library in order to remain there is reasonable as libraries are not lounges or shelter, and that the policy was reasonable and perfectly valid.

As the foregoing cases demonstrate, to pass constitutional scrutiny, library patron appearance and behavior policies must be written and posted so that patrons and library staff know what is expected. They must be specific, clear and unambiguous so that patrons and library staff understand what is expected. They must be objective and equally enforced by library staff so that patrons are not subject to the whims, fancies and discretion of library staff. Finally, library patron appearance and behavior policies must include a due process provision affording library patrons an opportunity to have any sanction imposed by library staff reviewed by the library director and/or library board.

About the Authors

E. Kenneth Friker and James W. Fessler are partners with Klein, Thorpe and Jenkins, Ltd., a law firm with offices in the Civic Opera Building at 20 North Wacker Drive in Chicago and at 15010 S. Ravinia in Orland Park. The firm concentrates in the representation of local libraries, library districts and library systems, as well as other local governmental units.

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