Any First Amendment Problems With Barring Sex Offenders from Public Libraries?

Prof. Doug Berman (Sentencing Law & Policy) discusses a Tennessee county’s executive order excluding registered sex offenders from public libraries, and asks whether it’s constitutional; I’d like to try to answer that as to the First Amendment. I don’t want to speak here to the recurring Ex Post Facto Clause objections to restrictions on sex offenders (objections courts have generally rejected), policy objections, other possible constitutional objections (state or federal), or statutory objections, though I will mention one possible objection under federal law in a separate post.

The answer as to the First Amendment, I think, is that there’s no constitutional problem here. The government has no obligation to create libraries, or open them to the public at large. It may, for instance, open them only to local residents (subject possibly to Article IV Privileges and Immunities Clause constraints, though I doubt that those would apply when government benefits such as this are at stake). It may open them only to university students. It may open them only to children. And it may, I think, open them to all people except registered sex offenders.

To be sure, once the government has created libraries, they might be treated as a sort of “limited public forum” in which viewpoint discrimination is prohibited — e.g., the government can’t exclude visitors who wear racist T-shirts, or who are doing research for anti-government purposes. (It might even be barred from some viewpoint discrimination in deciding which books to keep and which to remove, though that’s not clear.) And the government can’t discriminate among patrons on bases otherwise prohibited by the Constitution, such as the patrons’ race, sex, or religion.

But content-neutral limitations on who may access this government property are, I think, constitutional so long as they are reasonable in light of the purposes to which the government chooses to dedicate the property. And while I’m not sure that such a policy is likely to be especially effective, I do think it passes the rather low bar of reasonableness, given the government’s purpose of providing an especially safe environment for children, an environment that parents and children will be eager to take advantage of.

I suppose challengers could argue that, because of the traditional role of public library as places that are broadly open for the public to read in, libraries have become a “traditional public forum” in which even content-neutral restrictions are harder to sustain. But I doubt that this is so; the Court has seemed pretty firm on concluding that only sidewalks, streets, and parks qualify as such traditional public fora, and lower courts have indeed concluded that libraries don’t qualify as traditional public fora.

UPDATE: A commenter pointed to Doe v. City of Albuquerque (D.N.M. Mar. 31, 2010), which struck down an Albuquerque ban on registered sex offenders in libraries; the case was argued in January 2011 before a Tenth Circuit panel, and the panel is now considering it. I think the district court opinion, which held that the regulation has to pass the scrutiny normally required for content-neutral speech restrictions — narrow tailoring to a significant government interest, coupled with ample alternative channels for communication — is mistaken. When it comes to access to government property (other than a traditional public forum), content-neutral (and content-based but viewpoint-neutral) restrictions must merely be reasonable, see Christian Legal Society v. Martinez. I expect that the Tenth Circuit will so conclude, though of course I might be mistaken.

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